The Constitutional Roadblocks to D.C. Statehood

By Justin Yang
Justin Yang is a sophomore at the University of Pennsylvania studying Politics, Philosophy, and Economics.
​
On November 8th, 2016, in a referendum overshadowed by the presidential election, voters in the District of Columbia voted overwhelmingly in support of statehood for the District. The topic of D.C. statehood has been debated for decades, with strong arguments on both sides. However, one important thing that must be considered is the potential constitutional problems that might arise if the District does move towards statehood; after all, the District of Columbia has always been a unique situation in the nation’s history, and has been specially created and treated by the Constitution and the laws of our country.

The District of Columbia was created in 1790 as the seat of government of the United States, carved from land ceded by Maryland and Virginia. A special federal district was needed to prevent the federal government from being beholden to any particular state government for its everyday needs. [1] As such, Article I, Section 8 of the Constitution gives Congress exclusive jurisdiction over the district. [2] As the population of Washington grew, calls for voting rights led to the passage of the Twenty-Third Amendment, which specifically gave D.C. residents the right to vote in presidential elections. It is in this context that proponents of D.C. statehood will have to navigate in order to achieve their goals.

So how can Washington, D.C. become a state? The obvious answer would be through Article IV, Section 3 of the Constitution, the Admissions Clause, which gives Congress the power to admit new states into the Union. [2] The problem is that this potentially violates other provisions of the Constitution. For example, once D.C. becomes a state, it is permanent, as established by the Supreme Court in Texas v. White. [3] This seems to run counter to Congress’ exclusive jurisdiction over the District – once it is a state, Congress loses this exclusive jurisdiction.

Of course, it can be argued that the exclusive jurisdiction is so unconditional and absolute that it means Congress can do anything with D.C., even bequeathing the District with a state government. After all, it has given the city its own local government through the District of Columbia Home Rule Act of 1973. [4] In addition, the Supreme Court has indicated through several rulings that Congress has power over D.C. that isn’t enumerated in the Constitution. For example, in an 1820 case, Loughborough v. Blake, the Court ruled that Congress can directly tax D.C. residents despite Article I, Section 2 of the Constitution requiring direct taxes to be apportioned among the several states. [5] Still, it seems a little absurd that Congress’ power can be so absolute that it can be given up but never recovered again.

Another potential issue that could arise is the Admissions Clause itself. Although Congress is empowered to admit new states, the one caveat is that, “no new States shall be formed or erected within the Jurisdiction of any other State… without the Consent of the Legislatures of the States concerned as well as of the Congress.” [2] This could potentially mean that Congress must obtain permission from Maryland to turn Washington, D.C., into a state, since Maryland ceded the land to create a federal district, not a state. However, the act of cession shows that Maryland acknowledged that the land is “to be forever ceded and relinquished to the Congress and Government of the United States [in] full and absolute right and exclusive jurisdiction, as well as of soil of persons residing or to reside thereon, pursuant to the tenor and effect of the eight section of the first article of the Constitution of the Government of the United States.” [6] Most state cessions of land to the federal government include clauses that provide for the reversion of the land once federal ownership ends. Maryland’s cession, however, doesn’t. This means that Congress has “absolute right” in how they wish to use the land in perpetuity.

Of course, Maryland ceded the land “pursuant to the tenor and effect of the eight section of the first article of the Constitution of the Government of the United States.” [6] This section is involved in a 1946 Supreme Court case, S.R.A., Inc. v. Minnesota, which held that land ceded to the federal government by a state automatically reverts back to state jurisdiction once the federal government ends its use, even if there was no explicit requirement to do so. [7] This potentially means that once Congress decides to turn the federal land of the district into state land, it has effectively terminated its need for the land and therefore must give the land back to Maryland. Maryland, therefore, would have to give permission first if D.C. were to still want to become a separate state.

Lastly, D.C. statehood would also have to contend with the Twenty-Third Amendment. The Amendment treats the District as an existing and permanent constitutional entity, and when giving D.C. electors in the Electoral College, it refers to it as “if it were a State.” [2] All the language here would directly be contradicted by Congress if it were to pass a statute to give D.C. statehood, and the Constitution always trumps any statute. In addition, the Amendment restricts the number of electors to the Electoral College D.C. can have to the number the least populous state has, which is three. If the population of the state of Washington, D.C., grows to a level that requires more electors, which part of the Constitution will reign supreme – this Amendment, or Article 2?

However, this problem can be fixed. The Twenty-Third Amendment, after all, specifies that it is dealing with “the seat of Government of the United States…” If D.C. statehood means that federal buildings in D.C. still remains on federal land as the seat of government, then the Amendment would only apply to those pieces of land and not to D.C. itself. An interpretation of the Amendment could also see it rendered moot because it was written to apply to an entity that doesn’t exist anymore. Of course, this would take a Supreme Court ruling to settle, but it is not entirely unreasonable.

Clearly, turning Washington, D.C., into the 51st state is no easy matter. There are potential conflicts with the Twenty-Third Amendment and Articles 1 and 4 of the Constitution. While it is possible that these conflicts can be entirely avoided and D.C. can be admitted as a state through the normal process, it seems more likely that the only way for D.C. to become a state is through a constitutional amendment that settles all these questions and avoids a constitutional crisis.


[1] “The Federalist Papers.” United States Congress. Accessed April 12, 2017. https://www.congress.gov/resources/display/content/The+Federalist+Papers
[2] “The Constitution of the United States.” United States National Archives. Accessed April 12, 2017. https://www.archives.gov/founding-docs/constitution-transcript
[3] “Texas v. White.” Justia. Accessed April 12, 2017. https://supreme.justia.com/cases/federal/us/74/700/case.html
[4] “District of Columbia Self-Government and Governmental Reorganization Act.” Government Publishing Office. Accessed April 12, 2017. https://www.gpo.gov/fdsys/pkg/STATUTE-87/pdf/STATUTE-87-Pg774.pdf
[5] “Loughborough v. Blake.” Justia. Accessed April 12, 2017. https://supreme.justia.com/cases/federal/us/18/317/
[6] “Constitutional and Legal Issues Surrounding D.C. Statehood.” DC Statehood – Yes We Can. Accessed April 13, 2017. http://dcstatehoodyeswecan.org/j/index.php?option=com_content&view=article&id=339:constitutional-and-legal-issues-surrounding-dc-statehood&catid=57:statehood-process&Itemid=120
[7] “S.R.A. Inc. v. Minnesota.” Justia. Accessed April 13, 2017. https://supreme.justia.com/cases/federal/us/327/558/case.html

The opinions and views expressed through this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.

​