Making D.C. the 51st State

Today, Congress has authority over the entire District of Columbia, albeit delegated in large measure to the District government. That authority would cease under this bill.

March 22, 2021 • Testimony

Committee on Oversight and Reform
United States House of Representatives

Dear Chairwoman Maloney, Ranking Member Comer, and Members of the Committee:

My name is Roger Pilon. I am vice president for legal affairs emeritus at the Cato Institute and the founding director emeritus of Cato’s Center for Constitutional Studies. I now hold Cato’s B. Kenneth Simon Chair in Constitutional Studies. I want to thank the committee for providing me with an opportunity to offer my assessment of H.R. 51, which, if enacted, would create a 51st state from the present District of Columbia, save for a tiny enclave around the National Mall that would then be the seat of the federal government. As I testified before this committee during the 116th Congress, this cannot be done by mere statute but only by constitutional amendment.

Let me begin on two practical notes. First, given the history of proposals on this subject and the present composition of the Senate, this bill has little chance of reaching the president’s desk. Accordingly, in deference to the committee’s time and mine, I will keep my comments short and to the point.

Second, given that history and the more than 200‐​year history during which the District of Columbia has existed in its present form—save for the small Virginia portion retroceded in 1847, the constitutionality of which has often been doubted but never tested—there must by now be a strong presumption against the kind of radical changes envisioned by this bill. In a word, it strains credulity to believe that the Framers, when they drafted the Constitution’s Enclave Clause, imagined anything like the arrangements contemplated by this bill.

Let me turn, then, to a quick summary of the four‐​step process by which this bill purports to turn most of the District of Columbia into a state. I will list these steps chronologically, as contemplated by the bill. In truth, they are interlarded variously in the bill.

Start with the first step, found in the bill’s next to last provision, Sec. 403: The president certifies to the mayor of the District of Columbia that the bill has been enacted.

Now go back to Sec. 102(a): There, the mayor issues a proclamation for the first elections for two senators and one representative in Congress.

Then in Sec. 102(b)(2), the mayor certifies the election results to the president.

Finally, at Sec. 103(a), the president issues a proclamation announcing the election results and, upon that, at Sec. 103(b), the state is “declared” admitted to the Union.

Constitutional Objections to H.R. 51

The textual objections. Given that process, it appears that this bill seeks to mimic the ordinary process through which states from time to time have been admitted to the Union from federal territories like the Northwest Territory or the Louisiana Purchase, pursuant to Article IV, Section 3 of the Constitution. If so, that is a problem, for the District of Columbia is not and never has been a “federal territory” in that sense. It is a unique, a sui generis entity, expressly provided for, not under Article IV but under Article I, Section 8, Clause 17 of the Constitution, the Enclave Clause, in clear and unmistakable contemplation of its becoming the seat of the new federal government, which it has been for well more than 200 years.

But the bill’s constitutional problems do not end there. Like the stillborn S. 132, the “New Columbia Admissions Act of 2013,” then before the 113th Congress, this bill implicitly looks back nonetheless to the Enclave Clause to justify reducing the District of Columbia to this tiny enclave around the National Mall. In relevant part, the Enclave Clause reads:

The Congress shall have 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 the Government of the United States.…

Seizing on the fact that the Framers did not set a minimum size for the District, proponents of statehood believe they can carve out this tiny enclave from what for over 200 years has been the seat of the federal government and turn the rest of today’s District into a new state—all without amending the Constitution.

To be sure, the Framers did not set a minimum size for the district. But their mention of “ten Miles square,” together with Congress’ nearly contemporaneous 1790 creation of the District from land ten miles square, ceded to the federal government by Maryland and Virginia, is strong evidence of what they intended—and evidence, too, against this scheme. Yet this bill would strip Congress of its present authority over today’s District, leaving its authority to extend over only this tiny enclave. The “Power To exercise exclusive Legislation in all Cases whatsoever, over such District” surely was not meant to entail, as some have argued, a power to create a new state from that District.

Indeed, that brings us to a fundamental constitutional principle, the doctrine of enumerated powers, which holds that Congress has only those powers that the people delegated to it as enumerated in the document, mainly in Article I, Section 8.1 Search as you will among those enumerated powers, you will find none authorizing Congress to carve out a 51st state from the present District of Columbia.

That point was stated somewhat differently in 1963 by Attorney General Robert F. Kennedy, commenting on a bill that would have retroceded the District to Maryland:

While Congress’ power to legislate for the District is a continuing power, its power to create the District by acceptance of cession contemplates a single act. The Constitution makes no provision for revocation of the act of acceptance, or for retrocession. (emphasis added)2

Addressing the question of statehood for the District of Columbia in 1987, Attorney General Edwin Meese made a similar point: “The Constitution appears to leave Congress no authority to redefine the District’s boundaries, absent an amendment granting it that power.“3

In fact, the conclusion that Congress lacks the authority to do what is contemplated here, or to do variations of that, has been reached by every Justice Department that has addressed the question—with one exception. In 2009, after the department’s Office of Legal Counsel reached a similar conclusion regarding a District voting rights bill then before Congress, Attorney General Eric Holder “rejected the advice and sought the opinion of the solicitor general’s office. Lawyers there told him that they could defend the legislation if it were challenged after its enactment.“4 The ambiguity here is precious: Of course the solicitor general’s office “can defend” the legislation; it’s the job of that office to defend all legislation, no matter how unconstitutional it might turn out to be.

To be sure, the Constitution does not expressly prevent Congress from reducing the size of the District of Columbia or other federal enclaves, as some have argued. But that view turns the doctrine of enumerated powers on its head: all that is not prohibited is permitted. That is not the basic principle of our Constitution—implicit in the document’s first sentence, following the Preamble, explicit in the Tenth Amendment.

Finally, the 1847 retrocession of the small Virginia portion of the original District offers no real support for this bill since the Supreme Court, when finally asked to rule on the question nearly 30 years later in a private taxpayer suit, declined to declare the act unconstitutional because so ruling would have resulted in dire consequences given all that had transpired over those years.5

The consent of Maryland is likely necessary for the creation of a new state from the present District of Columbia. As the Enclave Clause contemplates, the District was created through the consent of both Congress and the state(s) that ceded land for its creation. And the purpose of the cession was made clear in the initial act that gave the Maryland delegation in the House of Representatives authority “to cede to the congress of the United States, any district in this state, not exceeding ten miles square, which the congress may fix upon and accept for the seat of government of the United States.“6 Here again we have a single act, for a single purpose. Maryland did not cede the land for the purpose of creating a new state on its border.

Were Congress to put that land to a different purpose, therefore, the terms of the original cession would be violated. Indeed, that would be crystal clear were it to have happened initially rather than more than 200 years later. It would have been sheer political mischief if Congress and Maryland had agreed to the cession for the purpose of creating the District and then Congress had turned right around and carved out a separate state from the grant. Congress cannot do in two steps separated by the passage of time what it could not have done in one fell swoop initially, a conclusion that is further buttressed by Article IV, Section 3, which provides that no new state may be created out of the territory of an existing state without that state’s consent. Whether Maryland would consent to the creation of a 51st state is an open question, of course. There are numerous practical objections that would arise, a few of which I will address below. Suffice it to say here that past efforts in this direction have received little support from the free state.

Practical Objections to HR. 51

James Madison, the principal author of the Constitution, explained in Federalist No. 43 why we needed a “federal district,” separate and apart from the territory and authority of any one of the states, where Congress would exercise “exclusive” jurisdiction:

The indispensable necessity of complete authority at the seat of government, carries its own evidence with it. It is a power exercised by every legislature of the Union, I might say of the world, by virtue of its general supremacy. Without it, not only the public authority might be insulted and its proceedings interrupted with impunity; but a dependence of the members of the general government on the State comprehending the seat of the government, for protection in the exercise of their duty, might bring on the national councils an imputation of awe or influence, equally dishonorable to the government and dissatisfactory to the other members of the Confederacy.

Independency runs through Madison’s explanation: It was imperative that the federal government not be dependent on any one of the states, and equally that no state be either dependent on the federal government or disproportionately influential on that government. Neither of those objectives would be met under this bill.

Today, Congress has authority over the entire District of Columbia, albeit delegated in large measure to the District government. That authority would cease under this bill. As noted above, Congress would have exclusive authority over only the tiny sliver of land outlined in the bill—essentially the White House, the Capitol, the Supreme Court, and the area close to the National Mall. That would make the federal government dependent on this new independent state for everything from electrical power to water, sewer, snow removal, police and fire protection, and so much else that today is part of an integrated jurisdiction under the ultimate authority of Congress. Nearly every foreign embassy would be beyond federal jurisdiction and dependent mainly on the services of this new and effectively untested state. Ambulances, police and fire equipment, diplomatic entourages, members of Congress, and ordinary citizens would be constantly moving over state boundaries in their daily affairs and in and out of jurisdictions, potentially increasing jurisdictional problems substantially.

But neither would this new state be independent of the federal government. In Federalist No. 51 Madison discussed the “multiplicity of interests” that define a proper state, with urban and rural parts and economic activity sufficient and sufficiently varied to be and to remain an independent entity. That hardly describes the present District of Columbia. Washington is an urban, one‐​industry town (though not as much as it used to be), dependent on the federal government far in excess of any other state. This new state, our first “city‐​state,” would be no different. Moreover, as a state, no longer under the exclusive authority of a Congress that would now be dependent on it, as just outlined, this state would be in a position to exert influence on the federal government far in excess of that of any other state. The potential for “dishonorable” influence, as Madison noted, is palpable. And this tiny new “District of Columbia,” compressed as it would be under this bill, would be unable to effectively control its place of business, rendering it susceptible to such influence.

Much of the Framers’ thinking on these issues was colored by their experience in 1783 when members of the Continental Congress, meeting in Philadelphia, had to flee the city after the Executive Council of Pennsylvania refused to stop a mutiny threatening the members. With the recent, January 6 storming of the Capitol in mind, some are saying that an independent state surrounding the Capitol would have been able to intercede more quickly and effectively than happened under today’s multiple jurisdictional authorities. That is far from clear, however, especially if the point is freighted with political considerations. This is a complex practical issue that should carry limited weight in the larger deliberations. If anything, members’ concern for their own physical security would hardly seem to be served by drastically reducing the scope of Congress’ authority.

The Constitution Again

Let me conclude by returning to the Constitution, where the strongest arguments against this bill are to be found. As the bill plainly contemplates, the 23rd Amendment, ratified in 1961, would need to be repealed. In relevant part, the 23rd Amendment provides that:

The District constituting the seat of government shall appoint in such manner as the Congress may direct:

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, but in no event more than the least populous State; … (emphasis added)

Clearly, those who wrote and ratified the 23rd Amendment envisioned the District as having a population of a certain size. In fact, the amendment compares the District to a state, granting it the number of presidential electors it would be entitled to “if it were a State,” which it is not. But under this bill, the “District” would become a tiny enclave where only a small number of voters would live, including the presidential family. But those voters, still empowered to select the three electors presently allotted by the amendment, would have vastly more powerful or effective votes than their fellow citizens across the country. Yet Congress can do nothing about that if the amendment is in place, for the amendment authorizes Congress to direct the manner in which the District appoints electors; it does not allow Congress to eliminate the District’s power to appoint those electors or to take away the District voters’ constitutional rights by mere statute.

Recognizing that, apparently, this bill’s drafters offer a convoluted way to preserve those rights, if not that power. Thus, Sec. 221 purports to require each state, including the new 51st state, to permit individuals residing in the reduced seat of government (i.e., the tiny District of Columbia) to vote in federal elections in their state of most recent domicile. Sec. 221(b)(1) expresses “the sense of Congress” that States should “waive registration requirements for absent Capital voters who, by reason of residence in the Capital, do not have an opportunity to register.” And Sec. 223 purports to strike “the District of Columbia” from the definition of a state for the purpose of choosing electors, effective upon admittance to the Union of the new 51st state.

If passed standing alone, Sec. 223 would plainly be unconstitutional. In the context of this bill, it remains so. The repeal is not sensibly pegged to the repeal of the 23rd Amendment or even to the last (51st) state’s adoption of absentee procedures. Congress presumes in this section that it can undo what it took a constitutional amendment to do. If all of this would do the job, why the need for Sec. 224, appropriately titled, “Expedited procedures for consideration of constitutional amendment repealing 23rd Amendment.”

The word “expedited” (to say nothing of the procedures that follow) speaks volumes about what is going on here. This bill cannot stand unless the 23rd Amendment is repealed by the provisions of Article V of the Constitution. But the chances of that are exceedingly small. As we saw when an amendment to afford greater representation for the District was put before the nation in 1978, only 16 states had signed on by the time the allotted period for ratification had concluded in 1985. Outside the Beltway there is little support for even that kind of change. I submit that so radical a change as is contemplated by this bill—reducing the nation’s capital to this tiny enclave—will meet with even less support. In fact, as a July 15, 2019 Gallup poll showed, even among Democrats, support for DC Statehood stood at only 39 percent, with 51 percent opposed. Among Americans generally, 29 percent support DC Statehood, 64 percent oppose it.7 More recently, in fact due out today (citation not available at this writing), A Scott Rasmussen national survey of 1,200 registered voters conducted March 18–20, 2021, asked two questions: “How closely have you followed recent news stories about a proposal to make Washington, D.C. a separate state?” and “Would you favor or oppose making Washington, D.C. a separate state?” Just 19% of registered voters say they are following news on the topic “Very Closely.” Overall, 35% at least somewhat favor the idea, 41% are at least somewhat opposed, and 24% are not sure. Those totals include 17% who Strongly Favor the idea and 28% who Strongly Oppose it. There is some awareness of the partisan implications. That is reflected in the fact 52% of Democrats tend to support the idea while 61% of Republicans oppose it.

Let me conclude with this. If no one thought, in 1961, that presidential electors could be chosen by citizens of the District other than through a constitutional amendment, and if no one thought, in 1978, that greater representation for the District could be achieved other than through a constitutional amendment, what has changed such that today some believe that we can change the District that is provided for by the Constitution into a state other than through a constitutional amendment? This would amount to rewriting the Constitution by mere statute. If we want to change our constitutional arrangements, the Constitution provides us a way to do it, through Article V.

About the Author

1 For my Senate testimony on the doctrine of enumerated powers, see Roger Pilon, The United States Constitution: From Limited Government to Leviathan, Econ. Educ. Bulletin, Am. Inst. Econ. Research (Dec. 2005), https://​object​.cato​.org/​s​i​t​e​s​/​c​a​t​o​.​o​r​g​/​f​i​l​e​s​/​a​r​t​i​c​l​e​s​/​C​T​0​5.pdf.

2 Letter and Memorandum from Attorney General Robert F. Kennedy to Hon. Basil Whitener, H. Comm. on the District of Columbia (Dec. 13, 1963), reprinted in Home Rule, Hearings on H.R. 141 Before Subcomm. No. 6, H. Comm. on the District of Columbia, 88th Cong., 1st Sess. 341, 345 (1964).

3 Report to the Attorney General: The Question of Statehood for the District of Columbia, April 3, 1987, p. 19, available at https://​www​.ojp​.gov/​p​d​f​f​i​l​e​s​1​/​D​i​g​i​t​i​z​a​t​i​o​n​/​1​1​5​0​9​3​N​C​J​R​S.pdf.

4 Carrie Johnson, “Some in Justice Department See D.C. Vote in House as Unconstitutional,” Wash. Post, April 1, 2009 (link no longer available).

5Phillips v. Payne, 92 U.S. 130 (1875).

6 An Act to Cede to Congress a District of Ten Miles Square in this State for the Seat of Government of the United States, 2 Kilty Laws of Md., Ch. 46 (1788).

7 Jeffrey M. Jones, “Americans Reject D.C. Statehood,” Gallup, July 15, 2019, https://​news​.gallup​.com/​p​o​l​l​/​2​6​0​1​2​9​/​a​m​e​r​i​c​a​n​s​-​r​e​j​e​c​t​-​s​t​a​t​e​h​o​o​d​.aspx.