By David B. Rivkin Jr. and Lee A. Casey
July 2, 2020, in the Wall Street Journal
Voting along party lines except for one Democratic dissent, the House last week approved a bill to grant statehood to almost all of the District of Columbia – and create two safe Democratic Senate seats in a city that typically votes 90% Democratic in presidential elections. But while Congress has the power to admit new states, changing the district’s status would require a constitutional amendment.
The Framers had good reason to put the capital outside the borders or control of any state. Attorney General Robert F. Kennedy, writing in opposition to a 1964 statehood bill, summed up their view: “It was indispensably necessary to the independence and the very existence of the new Federal Government to have a seat of government which was not subject to the jurisdiction or control of any State.”
In 1783, a mutinous band of Continental solders drove Congress out of Philadelphia after Pennsylvania’s government refused assistance. The recent protests and riots in Washington’s streets make it easy to imagine a similar clash if the federal government lacked sovereignty over the city. To prevent such a situation, the Constitution’s Framers wrote a provision giving Congress the power “to exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of government of the United States.” Congress took over 100 square miles of Maryland and Virginia with the District of Columbia Organic Act of 1801.
In 1846, Congress retroceded Virginia’s portion, now Arlington County and a portion of the city of Alexandria. Was that constitutional? We think not. While the retrocession didn’t alter the configuration of the district in as fundamental a way as the House is now trying to do, the most logical reading of the Constitution is that no change in the district’s boundaries is permissible and that the original cession is irrevocable.
The Supreme Court has never ruled on the question. When it reached the justices, in Phillips v. Payne (1875), they dismissed the case, holding that the plaintiffs – taxpayers seeking reunion with the District of Columbia, which had lower taxes than Virginia – lacked standing. But if Congress approves statehood, other states would clearly have standing to challenge the dilution of their voting rights by the addition of two senators from an area ineligible for admission as a state.
The House bill attempts to hew to the Constitution’s design by excluding a small area of the district – including the White House, other federal buildings and the National Mall – and leave it as a federal district. RFK rejected a similar proposal in 1964: “A small Federal enclave comprised primarily of parks and Federal buildings … clearly does not meet the concept of ‘the permanent seat of government’ which the framers held.”
There’s an additional problem: The bill violates the 23rd Amendment, ratified in 1961, which enfranchised the district’s residents in presidential elections. The amendment allocates three electoral votes to “the district constituting the seat of government of the United States.” Under the House bill, that would not be the new state (which would get three electors of its own), but the rump federal district, which lots of structures but few or no inhabitants.
The bill provides for “expedited procedures” in both congressional chambers to propose an amendment repealing the 23rd. But doing so would require two-thirds majorities, and ratification needs approval from 38 state legislatures. That would require broad bipartisan cooperation – a tall order in today’s political climate, especially if one party sees an advantage in leaving the problem unsolved.
There are strong arguments for granting Washington residents representation in Congress. The Framers understood and were troubled by the undemocratic contradiction of denying capital residents the vote. Alexander Hamilton believed the federal district should have representation in the House but not the Senate (whose members were chosen by state legislatures until 1913). James Madison countered that the new capital’s residents would have an elected local government and “find sufficient inducement of interests to become willing parties to the cession” to justify their lack of congressional representation.
The District of Columbia has always been an imperfect solution to a constitutional problem. The debate over its role and status will and should continue. But abolishing the permanent seat of the federal government would be a profound change – the sort that can be accomplished only with a national consensus implemented through a constitutional amendment, not by a law pushed through for partisan advantage.
Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush.