Legal Review: D.C.’s Quest for Statehood Continues

by April Cockerham May 19, 2016 at 12:30 pm 1 Comment

Legal Review PriceBenowitz

April Cockerham is an immigration attorney with Price Benowitz, LLP, a law firm based out of Washington, D.C., which also represents clients in criminal defense and DUI matters. April received her J.D. at the University of Arizona.

Once again, Washington D.C. is poised to become the stage for a real-time examination of bipartisan interpretations of federalism, as Mayor Muriel E. Bowser (D) leads the district’s renewed push for statehood.

Although there has been an ongoing struggle within D.C. to resolve the inequalities suffered by its residents as a result of the district’s federal status, the coming Presidential election may prove a turning point in the long road toward statehood.

District officials have been trying to take advantage of the American population’s renewed interest in politics to raise public awareness of D.C. residents’ second-class citizenship status, and it appears to be working.

Although residents of Washington D.C. are required to fulfill citizenship duties just like residents of any other state, they have no representation in Congress as a result of D.C.’s federal district status. In addition, although residents must pay taxes, the local government cannot spend those tax dollars as it sees fit without prior Congressional approval.

Congress treats the district of Washington D.C. just like any other federal agency, which in practice amounts to hobbling the local government in both its budget and legislature, as well as denying the electorate federal voting rights.

Opponents of the district’s efforts feel that granting D.C. statehood would be unconstitutional, as the federal district was originally created to form a politically neutral arena within the United States – a Capitol not swayed by state or local politics.

In response to such concerns, the latest proposed referendum would leave a small federal segment untouched within the new state of Washington D.C., negating the need for a constitutional amendment. Shrinking the size of the district while adding a new state to the union are both squarely within Congress’ exclusive jurisdiction.

Proponents of statehood point to two prongs of Congressional power – Congress’ exclusive and absolute authority over the district itself, as well as its sole vested power to create new states – as enabling Congress to do exactly what is sought by the proposed referendum while acting squarely within its constitutional authority.

In spite of outspoken opposition to the proposed change, nothing in the Constitution expressly prohibits the creation of a new state out of a portion of the current federal district. Article I, Section 8, Clause 17 of the Constitution, (also known the “Enclave Clause”), grants Congress exclusive jurisdiction over the federal district.

While Clause 17 also limits the total size of the district to “not exceeding ten miles square,” this provision has been interpreted as merely limiting the total size of the district, and thus does not impair Congress’ implicit authority to change the geographic area of its exclusive jurisdiction when necessary. In fact, Congress has already exercised its jurisdiction to reduce the total size of the district once.

In 1846, in response to Virginia’s petition to retrocede a portion of its land, Congress acted to reduce the district’s original perfect “ten Miles square” to the current 67 square miles. The proposed referendum can be seen as merely asking Congress to further shrink the district itself, and then create a new state out of the remainder.

Article IV, Section 3 of the Constitution grants Congress the sole vested authority to admit new states to the union, although that power does carry certain restrictions. However, granting statehood to the territory remaining after the proposed redrawing of the federal district would not violate any of the explicit constitutional restrictions on Congress’ power to grant statehood.

After the size of the remaining federal district is reduced, the remaining territory shall not be “within the jurisdiction of any other State,” nor shall it be a “junction of two or more States, or parts of States.” Congress thus has full and exclusive authority to admit it into the Union.

Regardless of the constitutional questions, bipartisan sentiments have always been at the heart of the struggle for D.C. statehood, and have only been heightened as America prepares for an administration change. Washington D.C. has always been home to a Democratic-dominated electorate, a fact historically unaffected by which party controls the White House.

The Republican-dominated Senate is thus strongly opposed to granting D.C. the voting rights it seeks, as this would mean granting the Democrats two more seats in the Senate. Republicans also fear that D.C.’s proposed state constitution will incorporate controversial left-leaning provisions regarding gay marriage, gun control, and marijuana legalization.

The Republican opposition has gained support from the district’s neighboring states, as both Maryland and Virginia are loath to subject their own citizens to D.C.’s proposed out-of-state commuter taxes.

Mayor Muriel Bowser plans to hold a referendum in November, and it appears a larger number of D.C. residents support the initiative than ever before. She hopes to make the district a state before the next Presidential administration takes office. In light of numerous past failed attempts, a breakthrough in the historical deadlock between the district and Congress is unlikely.

Regardless of the ultimate outcome, it is undisputed that people are becoming more interested in the issue of the Districts’ status, which may be considered a victory in its own right. If nothing else, D.C. officials are masterfully taking advantage of the current political situation to highlight their plight.

Even if the latest attempt to achieve D.C. statehood fails, the increased public awareness brought about by the Mayor’s efforts could very well lead to the presentation of viable alternative proposals.

Borderstan contributor and law firm sponsor Price Benowitz LLP. The views and opinions expressed in the column are those of the author — our contributor and law firm sponsor Price Benowitz LLP — and do not necessarily reflect the views of Borderstan.


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