Home > News > D.C. statehood is back on the House’s agenda. Here’s why it faces an uphill battle.
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D.C. statehood is back on the House’s agenda. Here’s why it faces an uphill battle.

Can you say “taxation without representation”?

- September 19, 2019

The House Committee on Oversight and Reform today will hold the first hearing on a bill to make the District of Columbia a state. Hearings on this bill, H.R. 51, result from growing momentum in the city’s statehood movement and increasing support from both congressional Democrats and all Democratic presidential candidates.

Here’s what you need to know about the bill and its prospects in Congress.

How would H.R. 51 work?

The Constitution’s enclave clause allows Congress to reserve a territorial seat for the federal government and to “exercise exclusive Legislation in all Cases whatsoever, over such District.” The clause’s framers hoped to protect Congress against angry Revolutionary-era mobs such as the one that stormed a 1783 meeting of the Continental Congress. Congress has since interpreted the clause to withhold congressional representation and home rule from the District and its 700,000 residents, more than the populations of either Vermont or Wyoming.

H.R. 51 would give D.C. voters representation by converting most of the District’s current territory into a new state to be called “Washington, Douglass Commonwealth,” honoring Washingtonian Frederick Douglass. The new state’s voters would approve a state constitution and elect federal senators and a representative, delegates to the electoral college, a governor, and state legislators. The state would then assume the laws and judicial proceedings of the old city government.

The bill also reduces the current federal District to incorporate only the Mall and some of the city’s downtown. Congress would maintain authority over the remaining District, satisfying the requirements of the enclave clause. The reduced downtown District is drawn to exclude any residents, but should anyone reside there in the future, they would be eligible to vote by absentee ballot in their last state of residence. Finally, Congress would move to repeal the 23rd Amendment to eliminate the remaining District’s three electoral votes.

Why are Democrats pursuing statehood now?

District residents have long fought for the franchise and home rule, winning the right to vote for president in 1961, a nonvoting congressional delegate in 1970, a mayor and city council in 1973, and an attorney general in 2010. A quarter-century ago, Democrats remained split on District statehood: Over 100 Democrats voted against a 1993 statehood bill. As Sen. Edward M. Kennedy said in 1990, conservative Democrats and Republicans blocked statehood because “The District of Columbia and its residents are too urban, too liberal, too Democratic, and too Black.”

Since then, the Democratic and Republican parties in Congress have both grown more polarized and more internally unified, discouraging bipartisan compromise on a broad range of policy issues. In the Senate, Democrats have lost on key issues — such as the 2018 confirmation of Brett M. Kavanaugh to the Supreme Court — by only a few votes. By becoming a state, the new Washington would gain one federal representative and two senators, who would probably be Democrats, given the District’s urban makeup and strong leftward lean. Adding two reliably Democratic Senate seats could swing Senate control to the Democrats.

Capitalizing on this, a new campaign called “51 for 51” — created by a coalition of various liberal and leftist organizations — has coordinated statehood advocates to push Democratic senators and all Democratic presidential candidates to endorse statehood.

What are the barriers to D.C. statehood?

H.R. 51 must clear several hurdles. As it already has 219 Democratic co-sponsors, the Democratic-controlled House Oversight Committee probably will pass the bill onward for a vote on the floor. If every co-sponsor were to vote for the bill, H.R. 51 would just make it over the finish line in the House.

However, given Republicans’ narrow Senate majority and Senate Majority Leader Mitch McConnell’s (R-Ky.) tendency to ignore the Democrats’ House-passed measures, the bill will surely die in the upper chamber. Even if the Senate passed the bill, President Trump probably would veto the bill to help preserve Republicans’ narrow Senate majority, despite campaign statements suggesting support for statehood.

In short, the bill needs several Senate Republicans and the president to break with the party line. This seems unlikely. It might be possible after next year’s election, if Democrats were to keep control of the House and win back control of the Senate and the White House.

Is H.R. 51 constitutional?

Some claim H.R. 51 violates the Constitution’s enclave clause. The conservative legal scholar Roger Pilon, for example, argued that a similar 2013 statehood bill exceeded Congress’s textually enumerated powers under the clause; required repeal of the 23rd Amendment, which would grant three electoral college votes to any future residents of the reduced District; and, finally, needed Maryland’s consent, because Maryland ceded territory in 1788 to form a federal district but not a new state.

But the balance of evidence suggests H.R. 51 is constitutionally valid.

First, the text of the enclave clause lets Congress pass legislation over the District “in all cases whatsoever.” This phrasing indicates a broad, plenary congressional power over the District, including the authority to form a new state and cede part of the old District to that state. Doing so would be consistent with the fact that in 1846, Congress returned parts of the District south of the Potomac to Virginia — and the Supreme Court upheld Congress’s right to do so.

Further, H.R. 51 upholds the enclave cause’s requirement that Congress maintain control over the seat of government. The smaller, modified District meets the clause’s requirements that the District must be no more than “ten miles square” and serve as seat of government, containing essential government buildings.

Second, H.R. 51 asks that Congress repeal the 23rd Amendment to resolve the electoral college problem. Even if repeal did not occur, this would not affect Congress’s broad authority to cede much of the current District to a new state. The 23rd Amendment question is an issue for electoral college voting apportionment, but not an impediment to D.C. statehood.

Finally, in 1788, when Maryland transferred territory to Congress for the District, Maryland ceded authority over that territory and its regulation. That means Maryland can no longer object to the pending bill. Perhaps more important, the solidly blue state probably wouldn’t object anyway.

Robinson Woodward-Burns (@rwbdc) is an assistant professor of political science at Howard University, where he researches American constitutional thought and history, focusing on the statehood process.