« Andrew Kent: Lessons for Bivens and Qualified Immunity Debates from Nineteenth-Century Damages Litigation against Federal Officers
Michael Ramsey
| Main | Addressing Three New Points About Bostock and Oncale
Andrew Hyman »


Bryan Wildenthal on D.C. Statehood
Michael Ramsey

At Jurist, Bryan Wildenthal (Thomas Jefferson, visiting USD): D.C. Statehood Is Within Congress’s Power But Must Be Done Right.  From the introduction:

Critics of the D.C. Statehood Bill, which passed the House on April 22, rightly object that it cannot properly override the 23rd Amendment to the Constitution. The House Bill creates utterly unnecessary problems under the Amendment by proposing a greatly reduced “District”, encompassing the White House, the Capitol and Supreme Court buildings, and the National Mall.

That Amendment mandates that “[t]he District constituting the seat of government of the United States,” however small it may be, is constitutionally entitled to choose three presidential electors, albeit “in such manner as the Congress may direct.”

Washington, D.C., if granted statehood, would no longer be that “District” and would be entitled to its own electors simply as a state, under Article II of the Constitution. It would be absurd for any remaining “District,” with no residents other than the presidential family and perhaps a few homeless persons, to continue getting another three presidential electors.

The current Statehood Bill purports to nullify the 23rd Amendment by repealing the legislation governing the “manner” of its implementation. But that’s a disturbing end-run around a constitutional guarantee of voting rights and would surely be struck down (as it should be) by the current Republican-dominated Supreme Court. It is absolutely the last thing Democrats (of all people) should support, given nationwide on-going attacks by many Republicans on voting rights and election integrity. Democrats may hope to motivate repeal of the 23rd Amendment itself, but Republicans will obviously never agree to that, and it’s impossible to amend the Constitution without overwhelming bipartisan support.

The Biden Administration reportedly supports amending the Statehood Bill to award the rump district’s extra three electors to whoever wins the national popular presidential vote. That’s clever political mischief at best, a misguided “fix” that would create more problems, would still disrespect the Constitution, and would again be pointless strike-down bait for the Supreme Court. If the electors are chosen by voters nationally, they would not be chosen by the district itself, as the 23rd Amendment commands. The universal understanding when the Amendment was ratified in 1961 was that the District’s presidential electors would be chosen by the voters living there (mostly long-disenfranchised African Americans), as they have been in every election since.

The actual solution to the D.C. statehood problem is elegantly simple, staring us all in the face: Why have any “District” at all? Just make the proposed rump district an ordinary federal enclave within the new state, like the thousands of federal buildings and areas already located in all 50 states. . . .