Let me begin on two practical notes. First, given the history of proposals on this subject, this bill has little chance of reaching the president’s desk. Accordingly, in deference to the committee’s time and mine, I’ll keep my comments short and to the point.
Second, given that history and the much longer history during which the District of Columbia has existed in its present form for well over 200 years, save for the small Virginia portion retroceded in 1847, there must at this point in time 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’ll list these steps chronologically, as contemplated by the bill. In truth, they’re interlarded variously in the bill. Start with the first step, found in the bill’s very last provision, sec. 302: 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. (Sec. 102(d) provides, interestingly, that “Upon the admission of the State into the Union, the Mayor, members of the Council, and the Chair of the Council at the time of admission shall be deemed the Governor, members of the Legislative Assembly, and the Speaker of the Legislative Assembly of the State, respectively.”)
Finally, at sec. 103(a), the president issues a proclamation announcing the election results and, upon that, at sec. 103(b), the state is “deemed” admitted to the Union.
Constitutional Objections to H.R. 51
The textual objections. In short, it appears, with several noteworthy exceptions, that this bill is patterned after the process through which federal territories have been admitted as states to the Union. If so, the problem is that the District of Columbia is not and never has been a “federal territory.” It is a sui generis entity, expressly provided for by the Constitution, in clear contemplation of its becoming the seat of the new federal government, which it has been for well more than 200 years. It is provided for by Article I, section 8, clause 17 of the Constitution, the Enclave Clause, not by Article IV, section 3, which provides for the admission of new states from federal territory and, prior to any admission, the regulation of federal territory.
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 looks implicitly to the Enclave Clause, of all things, to justify reducing the District of Columbia to a tiny area around the National Mall. In relevant part, that clause reads as follows: