The DC statehood: Some remarks and possible solutions

Recently, there have been several attempts to assimilate the District of Columbia status to the one of a U.S. territory. In the midst of a presidential election year, the D.C. Mayor Muriel Bowser, a Democrat, intends to prepare a statehood package for the District of Columbia when the new administration takes office, irrespective of who wins in November. Supposedly, this is “a new front in the District’s long-running fight for equal rights.” [1] When asked about this, the former Republican presidential hopeful John Kasich opined that this would be “just more votes in the Democratic Party.” [2] On the contrary, Hillary Clinton grabbed the opportunity, and promised to be “a vocal champion” for DC statehood just weeks before the city’s presidential primary. [3] And this approach was seen as precarious vis-à-vis the almighty “Taxation without Representation” slogan.

Let’s try to figure out if there is any elephant in the room. On the face value, sure, why would the D.C. residents not have their own representatives in the Congress, since they – don’t we all know? – pay (federal) taxes, go to war and fulfill other citizenship duties.

As a twenty-plus-year resident in the District, I say: it’s not going to happen. Not anytime soon. Here are several reasons:

The absence of political will at the top: Washington, D.C. has been a city dominated by Democrats and a Republican-dominated Congress will never allow several Democratic congress people showing out of the blue. In addition, Maryland and Virginia Democrat representatives (let alone their Republican colleagues) do not want a D.C. commuter tax imposed on their own residents;

The lack of viability as a state: D.C. does not have the means nor resources to sustain a viable territory or economy in order to protect its residents within its borders; that aside, if the new state would exclude a small federal enclave (as proposed, in an attempt to avoid a constitutional amendment), this would reduce its territory to a new minimum;

The inexistence of an independent budget: according to the Article I of the Constitution, the Congress has the power to Exercise exclusive Legislation in all Cases whatsoever” over the District. Although the D.C. representatives (including the current mayor) have threatened to pass budget autonomy laws, federal judges have constantly stricken down such initiatives over the years (see in 2014, for that matter), ruling that only Congress can act;

The absence of such an express provision in the U.S. Constitution: according to the Article IV, Section 3, Clause 1, the Constitution empowers the Congress to grant statehood, while Clause 2 stipulates that “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.” (our emphasis, TD). First, the legislator uses the word “territory” but not the word “district.” Second, even if one claims that D.C. is “other Property belonging to the United States” no state can be prejudiced. Originally, the D.C. land was part of Virginia and Maryland. Virginia land has been already returned to this state, and Maryland can soon have the same claim if D.C. pushes for statehood.

Historically, the U.S. Congress has followed a standard procedure for granting statehood to territories. The territory holds a referendum to determine the local population’s desire for or against statehood. If the majority vote is for statehood, the territory addresses a statehood petition to the Congress. Then, the two Congress chambers, House and Senate, pass a joint resolution, by a simple majority vote, accepting the territory as a state. Finally, the U.S. President signs the joint resolution, and the territory is acknowledged as a U.S. state.

For this reason, the five U.S. territories—American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and U.S. Virgin Islands—have all a clear constitutional path toward statehood, provided by the aforementioned Article IV, Section 3. The Federal District of Columbia does not have one.

In turn, what the D.C. mayor tries to do is to organize a “D.C. referendum” in November—not supported by the U.S. Constitution—and to force the Congress to acknowledge it. If this attempt succeeds, it will be quickly challenged in court.

The D.C. administration has tried in the past to promote lawsuits seeking to grant D.C. residents congressional voting rights (in 1998) or seeking permission to levy a commuter tax on non-District residents (in 2003), but they were all equally unsuccessful.

There is a good reason the District is not a state. The U.S. Constitution provided for a federal district under the exclusive jurisdiction of the Congress, and the District is therefore not a part of any U.S. state. Which means that D.C. should remain a politically neutral entity. And, since it’s not, being forever dominated by Democrats, there is no ground to become a state. The future D.C. (state) Constitution that the Democrats envision in the future will certainly be a biased organic law, with provisions overtly against the current U.S. Constitution (like, banning The Second Amendment legal gun carrying, and other standard progressive issues regarding legalization of drugs and “equal marriage act,” to name just a few). [4]

Now the elephant (not the Republican, but the Democrat one!) is more visible in the room. What reason might some Democrats have to reignite the discussion about the D.C. statehood now? That is, to press the issue of D.C. having two senators and one representative for the new administration, no matter who wins in November?! Or maybe because of that. Or maybe because there is a perceived danger that the Republicans (as disunited as they seem to be right now) may actually have a chance to conquer back the White House. In such a context, two senators and one representative, all (perpetual) Democrats, will be a major victory for the progressive Donkey fans.

However, for those residents who still feel disenfranchised (myself included), there are several alternative solutions:

Territory relocation: to reincorporate the D.C. territory (except a small federal enclave) to Maryland and/or Virginia (as it was before), and increase to 1 (one) the number of U.S. representatives for these states; people would be represented in the Congress House of the Representatives, but not in the Senate. Demographically, this is a fair solution.

Federal tax exemption: to declare the D.C. territory federal-tax free, like the U.S. territories; this will give satisfaction for the residents non-represented in Congress, plus it will create a boom in the number of new residents and businesses. Some may object that since Washington is a “federal district”, it should continue to pay federal tax, but in arguing so, we are back to square number one “taxation without representation” dilemma; and for those still interested to recover retroactively the back federal taxes imposed “unconstitutionally,” they can challenge the issue in court. Fiscally, this is a fair solution.

Granting more electoral votes: according to the 23rd Amendment to the U.S. Constitution (ratified in 1961), the District receives three electoral votes in presidential election, which makes the District having an intermediate position (by having electoral votes both for party primaries and general elections, and a non-voting Congress member), between the U.S. territories (with electoral votes in party primaries, but not in general elections, and no voting Congress members) and U.S. states (with both electoral votes in primary and general elections, and voting Congress members). Congress could grant D.C. three more electoral votes in presidential elections (corresponding, so to speak, to the required voting one representative and two senators), doubling the current number, from three to six. Electorally, this may be considered by many as a fair solution. (Tiberiu Dianu, Special to the Saipan Tribune)

Tiberiu Dianu is a legal scholar, book author, graduate of the American University Washington College of Law in Washington, D.C., the University of Manchester Faculty of Law in Manchester, UK, and an exchange scholar of the Oxford University in Oxford, UK. He currently lives in Washington, D.C. and works for various government and private agencies.