DC statehood is unconstitutional

July 2020

Abstract:
Never before have we needed an honest and competent alternative in Washington more than now. But with their dishonest "District of Columbia Statehood" ploy, the Democratic Party has employed a political "dirty trick" that rivals any from the past. They need to apologize and come clean.

The purported reason for the bill is to secure voting representation in both houses of Congress for residents of the nation's capital. Currently, Washington DC is represented in the House by one nonvoting representative, but is not represented in the Senate. But there are other, less disruptive, ways to achieve that worthwhile goal by legislation. A single political party acting to make a constituent state out of a city a good deal smaller than Indianapolis, but full of Democratic Party supporters, "walks like a duck and quacks like a duck". It's not fooling anyone.

The bill's purpose appears at second glance to be the gain of two senators for the Democratic Party. Are we to believe that the Democrats would be motivated to pass this bill if DC were a Republican stronghold? Only a fool would believe that. The purpose is clearly not simply to enfranchise voters regardless of political allegiance. The stratagem is shamelessly self-serving, and amounts to spending the time and resources of Congress for partisan gerrymandering at the national level.

But a puzzling point emerges: the Democrats cannot possibly expect this Act, if passed, to be upheld by the courts, since making Washington DC a state of the union by an act of Congress is expressly forbidden by the US Constitution. Article 1, Section 8, Clause 17 provides that:

"The Congress shall have Power ... To exercise exclusive Legislation in all Cases whatsoever, over such District ... as may ... become the Seat of the Government of the United States ..."

If Congress passes a law making DC a state, Congress will no longer be empowered to "exercise exclusive legislation" over the district as required by the Constitution. Although Congress may temporarily delegate a power to an agency, while retaining the authority to reclaim that power, it may not permanently abdicate its constitutional powers. But if DC is made a state, the power to legislate in the new state could no longer be reclaimed by Congress, as there is no provision for "unmaking" a state. Such permanent abdication of a constitutionally required power by the Congress is clearly unconstitutional. To change DC from a federal district to a state, should that be the desire of the American people (polls suggest it is not), a constitutional amendment would be needed.

So the puzzling point I referred to is this: knowing, as Ms. Pelosi and the Democrats must have known, that the bill is not constitutionally viable, what is their game with this ploy in an election year? Their goal is clearly not to gain representation in Congress for the residents of DC, since that cannot happen through this means; nor is it the gain of two senators, for the same reason. The only purpose that comes to mind is to deceive voters into believing that DC statehood will happen if they vote Democratic, and thus enthuse voters who support that goal to turn out in the election. But the promised goal will not be achieved by this means, as we see, and as the Democrats in Congress well know. To my mind, this recalls the "dirty tricks" of elections five or six decades ago (yes, I remember them well), with the exception that in this case Congress itself has been enlisted as the agent of trickery.

Deception of this sort, from the party that also struggled with forthrightness in the last presidential election, comes as a disappointment for many of us who are desperately hoping for a return of our national leadership to decency, to thoughtfulness, to professionalism and concern about both our own social ills and the world's environmental disasters. Our international renown, once stellar, has sunk over a period of several decades, largely as a result of military misadventures, but has tumbled head-over-heels during the past three and a half years. To restore our good name we have no one to turn to but the Democratic Party. As an Independent (isn't it a key to democracy that we all ought to be skeptics in politics, rather than believers?) I will vote for Mr. Biden and for the Democrats in Congress, but I call on the Democratic Party to repudiate and apologize for their deceptive DC statehood ploy – a classic case of bait-and-switch.

© H. Paul Lillebo

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