Can Congress Eliminate the District of Columbia?Andrew Hyman

Professor Bryan Wildenthal suggests that Congress should grant statehood to the District of Columbia, but make its core into “an ordinary federal enclave within the new state, like the thousands of federal buildings and areas already located in all 50 states.”  That way, he says, there would not be a tiny federal district entitled to three electoral votes.  But, I don’t think that would work.

Section 1 of the 23rd Amendment (ratified in 1961) is phrased almost entirely in mandatory rather than optional terms:

The District constituting the seat of Government of the United States 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; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.

If there were no such District, then fulfilling those commands would become impossible, which strongly implies that zapping the District would not be necessary, proper, or appropriate.  

I do agree with Professor Wildenthal that Congress cannot simply void the 23rd Amendment by repealing its implementing legislation.  Section 1 of the 23rd Amendment would probably be self-executing to some extent without congressional implementing legislation.  If not, then congressional repeal of implementing legislation would undermine the mandatory language of that Amendment, and such repeal would therefore not be necessary, proper, and appropriate.

But suppose it were lawful to convert the core of the District of Columbia into an ordinary federal enclave.  That enclave would still be the “seat of government” subject to the 23rd Amendment.  After all, when Congress in 1790 authorized the present seat of government, it said that “the seat of the government of the United States shall by virtue of this Act be transferred to the district and place aforesaid....” (emphasis added).  So, the federal seat of government already existed before the District of Columbia, and it would continue to exist after the District of Columbia, even though the latter district might have a different name, different boundaries, and a different constitutional basis.

In contrast to Professor Wildenthal’s proposal, no one doubts that Congress could easily retrocede almost all of the District of Columbia back to Maryland.  Because a rump remaining area would have three electoral votes, the retrocession would almost certainly create sufficient political pressure to simply repeal the 23rd Amendment.  But maybe residents of the District would prefer that their land not be retroceded, because the status quo gives them tremendous per capita voting power in presidential elections.

Instead of retroceding that land, Congress could create a new state, with the consent of Maryland which expressly gave the land for the purpose of a permanent federal seat of government (“pursuant to the tenor and effect of the eighth section of the first article of the constitution of the government of the United States....”).  But then members of Congress would have to explain to lots of other cities why they cannot become states too; Washington D.C. is currently the 20th most populous city in the United States, and the 10th largest geographically.

MICHAEL RAMSEY adds: There seem to be a lot of complications here, but I'm not sure why the issue doesn't resolve to a fairly simple set of propositions: (a) To the extent Congress doesn't want the ceded land for a Federal District any more, it can retrocede the land back to Maryland; (b) then (but only then) it can make the land a state, with Maryland's consent,  as it could with any part of any state; (c) to the extent Congress retains any part of the land (even a small part) as a Federal District, that part gets three electoral votes per the 23rd Amendment (which might be "stupid but constitutional"); and (d) if Congress retrocedes all of the land, the 23rd Amendment becomes inoperative because there's no longer any "District constituting the seat of Government of the United States" (as the seat of Government would at that point be not in a "District" but in Maryland or in a new state}.

ANDREW HYMAN REPLIES: Without commenting on points a, b, and c, here’s point d: “if Congress retrocedes all of the land, the 23rd Amendment becomes inoperative because there's no longer any ‘District constituting the seat of Government of the United States’ (as the seat of Government would at that point be not in a ‘District’ but in Maryland or in a new state).“  That may be correct if Congress decides to allow the state full jurisdiction within the federal buildings, but that’s not what Bryan Wildenthal is suggesting (or what Congress would likely demand); he’s saying the federal buildings would together form a federal enclave, and to me that looks exactly like the district that formed the “seat of government” prior to transferring it all to the new capital at Washington D.C.

DAVID WEISBERG adds:

I think Michael Ramsey’s analysis is correct as far as it goes, but it could be taken farther in an interesting way.  If the U.S. were to retain a new, miniature “federal district” that included only major governmental buildings and the grounds connecting them, Congress could pass a law that no person shall be deemed or permitted to be a resident or inhabitant of that new federal district (which would probably be true as a matter of fact anyway).  This law would have important consequences. 

First, I think it is clear that, with no residents, under the 23rd Amendment the new district could have no more than 2 electors, because a State with zero population would be entitled to no representatives in the House.  The 23rd says that the number of the District’s electors “shall in no event [be] more than the least populous State[.]”  So, consistent with the amendment, that number may be less.

Secondly (and this is less clear although I think, on balance, it is correct), the rest of the 23rd Amendment—that is, the part that would grant 2 electors to mirror the 2 Senators from each State—would, without any legal residents in the miniaturized new district, fall into desuetude.  The 23rd Amendment says: “The District constituting the seat of Government … shall appoint in such manner as Congress may direct” presidential/vice-presidential electors.  What Congress has directed is that the government of D.C., which is elected by the legal residents of D.C., shall conduct an election every 4 years for presidential/vice-presidential electors, in which election legal residents of D.C. shall be entitled to vote.  But, if there are no legal residents of the new district, there will be no elected government of that district and there will be no legal residents to vote for presidential/vice-presidential electors from the new district.

This would not be the first time that, due to subsequent events and/or the passage of time, a constitutional provision has fallen into desuetude.  See: 14th Amendment, Sec. 4; Article VI, Cl. 1; Article I, Sec. 9, Cl 1 (the expiration in 1808 of the bar against congressional prohibition of the African slave trade).