H.R. 51 Passed in the U.S. House of Representatives: The District of Columbia Takes A Giant First Step in the Long Journey to Statehood
Washington D.C., the District of Columbia, is the capital of the United States and a global model for representative government. Yet 536,000 eligible voters in Washington D.C. who pay federal income taxes do not have representation in Congress. While residents can vote in presidential elections, their one delegate to the U.S. House of Representatives may help draft legislation, but is not permitted to vote on their behalf. Similarly, the District has two shadow senators who lack the ability to vote in the Senate or sit on committees, denying them full representation in either house of Congress.
In 2021, H.R.51-The D.C. Admission Act, to establish Washington, Douglass Commonwealth as the fifty-first state in the Union, and providing for two senators and one representative in the U.S. Congress, passed in the House of Representatives by a historic vote of 216-208. [1] The bill directly addresses the unique constitutional issue posed by the establishment of this new D.C. state, which centers on providing proportional voter representation to residents of the federal capital region in presidential elections under the 23rd Amendment to the U.S. Constitution. In response, the bill would effectively suspend the 23rd Amendment until it can be fully repealed, and rely on well-established precedent to eliminate the need for any new Constitutional amendments. Ultimately, the Senate bill, S.51, sponsored by an unprecedented 45 senators, and the President, did not reach the Senate floor. [2] Nonetheless, the passage of H.R. 51, with strong support, shows that the legal momentum is building for Washington, D.C. to one day take its place as the fifty-first state, neutralizing constitutional challenges.
To understand why D.C. is not currently a state and how statehood might be achieved, it is important to review the legal status of the District of Columbia within the framework of the founding of the United States. Washington, D.C. was created by Article 1, Section 8 Clause 17, of the United States Constitution, known as the “District Clause.” This gave 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.” [3] The “District Clause” thus effectively afforded Congress the authority to both establish and control a federal capital city. In 1790, the Residence Act was passed to cede land from Maryland and Virginia to create this new capital city, and white, male residents were permitted to continue to vote in either state. [4]
However, since then, the “District Clause” has been used to exert control over D.C. citizens, restrict their voting rights, and overrule their budget decisions and laws. In 1801, the District of Columbia Organic Act removed the voting rights extended in the Residence Act, specifically representation in Congress and voting in the electoral college, to address the founding fathers’ concern that capital city residents might “bring on the national council an imputation of awe or influence.” [5] By 1820, in response to mounting dissent, Congress passed a new charter for the city, allowing the District to elect its own mayor and city council. [6] Also in 1820, the Supreme Court held in Loughborough v. Blake that “the power of Congress to exercise exclusive jurisdiction in all cases whatsoever within the District of Columbia includes the power of taxing it,” effectively endorsing taxation without representation, even though this had been the impetus for the Declaration of Independence from Great Britain, and the spark that ignited the Revolutionary War. [7] Then in 1846, Congress, Virginia, and the City of Alexandria agreed to a plan of retrocession, returning the county and town of Alexandria to Virginia, setting a precedent for Congress resizing the District. [8] While states such as Arizona, with far fewer residents than D.C., continued to be accepted into the Union, Congress took no action on representation for D.C. until 1961, when the 23rd Amendment was ratified, allowing D.C.'s 760,000 residents to vote in presidential elections, as though “it were a state.” [9] Residents of D.C. were able to vote for three Presidential Electors after its passage, setting a precedent for representation by three elected officials.
With support from the Civil Rights movement, statehood advocacy efforts eventually led to the majority Black residents of D.C. ratifying a Statehood Constitution for New Columbia in 1982. [10] Momentum was such that by 1993, H.R. 51-New Columbia Admission Act came to a floor vote for the first time in the House of Representatives, but was defeated 153-277. [11]
In parallel with legislative efforts to obtain voting rights for D.C. residents, the D.C. government offered individual citizens assistance in their efforts through the courts. In 2000, the case Adams v. Clinton reached the Supreme Court from the U.S. Court of Appeals for the D.C. Circuit, with the plaintiff, Lois Adams, joined by the D.C. government, seeking voting representation in Congress and equal treatment under the Constitution. [12] While acknowledging the “contradiction between the democratic ideals upon which this country was founded and the exclusion of District residents from congressional representation," the Appeals Court had rejected the plaintiffs’ claim since they did not reside in a state, and made clear that statehood was the only option to redress their situation. [13] The case was reviewed by the Supreme Court, but not heard, and the Appeals Court decision was upheld. [14]
This significant judiciary defeat was considered a clear signal for D.C. residents to continue to pursue a legislative strategy for statehood, with D.C. Mayor Anthony A. Williams (D) declaring the city’s resolve to continue fighting: “there are only three groups of people denied voting rights in our country: children, convicted criminals, and citizens of the District of Columbia.” [15] In 2021, the Supreme Court of the United States summarily affirmed a ruling from the US District Court for the District of Columbia in Castañon v. United States of America, reiterating that the only recourse for D.C. citizens to pursue statehood would be through Congress. [16]
Opposition to The D.C. Admission Act and D.C. statehood is centered on the need to repeal the 23rd Amendment, which would require an act of Congress and ratification by three quarters (thirty-eight) of the states. [17] The 23rd Amendment instructed Congress to create a mechanism for D.C. residents to participate in presidential elections, providing a “number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State.” [18] There is concern that if The D.C. Admission Act were passed, it would reduce the federal capital area to two square miles, with less than 50 residents acquiring the three Electoral College votes designated by the 23rd Amendment, giving them undue influence in the presidential elections. [19] Opponents to D.C. Statehood argue further that a constitutional amendment is required to add D.C. to the Union, since it was established by the “District Clause” of the Constitution, which instructed Congress to both establish and control a federal capital district. [20] Even those who concede that taxation without representation for D.C. residents must be addressed argue that since the establishment of a new state is not viable, D.C. residents outside of a smaller Federal District could be absorbed through retrocession to either Maryland or Virginia, without the need to add more members to Congress. [21]
The D.C. Admission Act directly addresses the 23rd Amendment and the issue of the outstanding Electoral College votes within the new, smaller Federal District. The bill is predicated on the immediate suspension of the legislation which implemented the 23rd Amendment, and allows residents of the Federal District to choose their presidential electors. [22] It asserts Congress’ full authority, as designated by Section 2 of the 23rd Amendment, to legislatively control the Federal District’s electoral college voting procedures. [23] The bill instructs Congress to either dismantle the election of presidential electors within the new Federal District, or neutralize their value by assigning the electors to the winner of the presidential elections, until the 23rd Amendment is fully repealed. [24] In addition, there is legislative precedent for changing the size of D.C. provided by the Retrocession Act of 1846, and the “District Clause” does not stipulate a minimum size or specific location for the Federal District. [25] Therefore, the D.C. Admission Act effectively suspends the 23rd Amendment and abides by the District Clause of the Constitution, negating any need for a Constitutional amendment.
The Supreme Court of the United States has repeatedly asserted that D.C. statehood can be achieved under Article IV of the Constitution, Section 3, Clause 1, the “Admissions Clause,” which states that “new states may be admitted by Congress into this Union.” [28] Delegate Eleanor Holmes Norton (D-D.C.) has further argued that “all 37 new states were admitted by Congress, and there has never been a successful constitutional challenge to the admission of a state.” [29] Furthermore, in a letter to Congress in 2021, thirty-nine legal scholars from twenty-seven colleges and law schools throughout the United States argued that the D.C. Admission Act is entirely constitutional and that Congress has full authority to admit D.C. into the Union as the 51st state. [30]
Finally, the alternative to D.C. statehood—retrocession, or the merging of D.C. into the neighboring state of Maryland—can readily be dismissed. Both Maryland and D.C. voters have demonstrated that they firmly oppose this plan, in direct violation of Article IV of the Constitution, Section 3, Clause 1. Thus, the only constitutional solution for the inequity of taxation without representation experienced by D.C. citizens is granting D.C. statehood. [31]
The passage of H.R. 51 by the House of Representatives was the culmination of more than two hundred years of efforts by D.C. residents to claim their full rights as citizens of the United States. The Supreme Court has made clear that this can be achieved through legislative means. Full passage of H.R. 51 is now a legislative priority for one of the two major parties in the United States, and the groundwork has been laid for the establishment of Washington, Douglass Commonwealth as the 51st state in the Union.
Edited by Ali Qi
Sources:
[1] The D.C. Admission Act, H.R.51, 117th Cong, 1st Sess (April 22, 2021) https://www.congress.gov/bill/117th-congress/house-bill/51/.
[2] The D.C. Admission Act, S.51, 117th Cong, 1st Sess (June 22, 2021) https://www.congress.gov/bill/117th-congress/senate-bill/51/cosponsors; Statement of Administration Policy, H.R. 51, Executive Office of the President, Office of Management and Budget (April 20, 2021) .https://www.whitehouse.gov/wp-content/uploads/2021/04/SAP-H.R.-51.pdf.
[3] US Const. Art 1, § 8, cl. 17 https://constitution.congress.gov/browse/article-1/section-8/clause-17/.
[4] Residence Bill, S-12, 1st Cong. (July 1, 1790) https://www2.gwu.edu/~ffcp/exhibit/p12/p12_1text.html.
[5] The Federalist Number 43, [23 January] 1788,” Founders Online, National Archives, https://founders.archives.gov/documents/Madison/01-10-02-0248. [Original source: The Papers of James Madison, vol. 10, 27 May 1787–3 March 1788, ed. Robert A. Rutland, Charles F. Hobson, William M. E. Rachal, and Frederika J. Teute. Chicago: The University of Chicago Press, 1977, pp. 411–418].
[6] Centennial History of the City of Washington, D. C., Crew, Harvey W; William Bensing Webb; John Wooldridge (1892). p.142. United Brethren Publishing House.
[7] Loughborough vs. Blake, 18 U.S. 317 (1820) https://supreme.justia.com/cases/federal/us/18/317/.
[8] An Act to Retrocede the County of Alexandria, in the District of Columbia, to the State of Virginia, ch. 35, 9 Stat. 35, 29th Cong. (July 9, 1846). https://govtrackus.s3.amazonaws.com/legislink/pdf/stat/9/STATUTE-9-Pg35.pdf.
[9] Joint Resolution to admit the Territories of New Mexico and Arizona as States into the Union upon an equal footing with the original States, H.J. Res. 14, 62nd Cong,1st Sess (April 4, 1911) https://www.archives.gov/legislative/features/nm-az-statehood/hjres14.html; U.S. Const. amend. XXIII §1. https://constitution.congress.gov/constitution/amendment-23/.
[10] Constitution for the State of New-Columbia, https://statehood.dc.gov/sites/default/files/dc/sites/statehood/page_content/attachments/1982-Constitution-for-the-State-of-New-Columbia.pdf.
[11] The D.C. Admission Act, H.R.51, 117th Cong, 1st Sess (April 22, 2021) https://www.congress.gov/bill/117th-congress/house-bill/51/.
[12] Adams vs. Clinton, Motion to Dismiss or Affirm, Docket No. 00-97 (2000). https://www.justice.gov/osg/brief/adams-v-clinton-motion-dismiss-or-affirm-response.
[13] US District Court for the District of Columbia (April 20, 2000)
https://law.justia.com/cases/federal/district-courts/FSupp2/90/35/2478923/.
[14] Adams vs. Clinton, Motion to Dismiss or Affirm, Docket No.-00-97 (2000). https://www.justice.gov/osg/brief/adams-v-clinton-motion-dismiss-or-affirm-response.
[15] Miller, Bill. “DC Loses Bid for Vote In Congress.” The Washington Post, (October 17, 2000)
[16] Castañon v. United States of America, Docket No. 20-1279 (Oct 4, 2021) https://www.supremecourt.gov/DocketPDF/20/20-1279/171787/20210312135635905_Jurisdictional%20Statement.pdf.
[17] Practical and Legal Problems with D.C. Statehood, Senate RPC Policy Papers, Judiciary, April 19, 2021. https://www.rpc.senate.gov/policy-papers/practical-and-legal-problems-with-dc-statehood.
[18] U.S. Const. amend. XXIII §1 and §2. https://constitution.congress.gov/constitution/amendment-23/.
[19] Id.
[20] Id.
[21] The District of Columbia-Maryland Reunion Act, H.R.472, 117th Cong., 1st Sess (March 5, 2021) https://www.congress.gov/bill/117th-congress/house-bill/472?s=1&r=4.
[22] The D.C. Admission Act, H.R. 51, 117th Cong., 1st Sess (April 22, 2021) https://www.congress.gov/bill/117th-congress/house-bill/51/.
[23] U.S. Const. amend. XXIII §1 and §2. https://constitution.congress.gov/constitution/amendment-23/.
[24] Id.
[25] An Act to Retrocede the County of Alexandria, in the District of Columbia, to the State of Virginia, ch. 35, 9 Stat. 35, 29th Cong. (July 9, 1846). https://govtrackus.s3.amazonaws.com/legislink/pdf/stat/9/STATUTE-9-Pg35.pdf.
[26] US Const. Art IV, § 3, cl. 1 https://constitution.congress.gov/browse/essay/artIV-S3-C1-1-1-2/ALDE_00001171/.
[27] Norton Responds to Incorrect Assertion that 23rd Amendment Must Be Repealed Before D.C. Can be Granted Statehood, Congresswoman Eleanor Holmes Norton, Press Release, April 30, 2021.
[28] Re: Washington, D.C. Admission Act, H.R.51 and S.51, Caroline Frederickson, et al, Letter to Congress, May 22, 2021.
[29] US Const. Art IV, § 3, cl. 1 https://constitution.congress.gov/browse/essay/artIV-S3-C1-1-1-2/ALDE_00001171/.