9

To achieve statehood for DC, would an amendment to the Constitution need to be passed, or would it just work like a regular territory, i.e. only needing Congress to pass a law?

12

Washington, DC could become a state with just a law, but its representation in the electoral college would not be able to increase properly with population due to the twenty-third amendment:

Section 1. 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.

So long as Washington, DC remains the seat of government of the US, it would be limited to the number of electors in the least populous state. Unless of course this amendment were considered moot in the situation of statehood. Presumably most of it would be rendered moot (otherwise the electoral college would get rather goofy with the DC electors being both in addition and part of those appointed by the states). Perhaps that clause would as well.

It would be more reliable to repeal the twenty-third amendment in that circumstance.

  • 1
    Ah, interesting. I'd think the amendment would still count, but it might not be considered a "District" so that could be weird. – Stormblessed Jul 31 '19 at 14:20
  • Hm, so you're saying that a law could give DC 2 Senators and however many representatives as they'd deserve, but no matter how many representatives they had, they'd only have 3 electoral votes, unless the 23rd amendment was repealed – divibisan Jul 31 '19 at 17:09
  • 1
    Best would be to remove housing from the area just by the capital and incorporate the rest of DC back into Maryland. – Mayo Jul 31 '19 at 20:28
  • 1
    I rather think that if DC became a state it would no longer be " the district constituting the seat of government" because it would become the state constituting the seat of government. – phoog Jul 31 '19 at 20:52
  • 1
    @DavidK Presumably if you did that without eliminating the 23rd, you would end up with a situation where the District would still have three electors, whose votes would be controlled by its residents—which, at that point, would constitute the residents of the White House, which obviously is problematic. – KRyan Aug 1 '19 at 3:53
7

Aside from the 23rd Amendment issues that have been mentioned in other answers, there are some additional parts of the Constitution that would cause me to argue that an amendment to the Constitution would indeed be required in order for D.C. to become a state (at least as long as it remained the seat of government.)

I would argue that Article I, Section 8 prevents the seat of government from being in any state. It says,

The Congress shall have the 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, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;--And

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

It seems pretty clear (to me, at least) that the intent here is that the seat of the government of the United States is to not be part of any state and that Congress shall have exclusive legislative control over it, unlike with the states.

Additionally, Article IV, Section 4 says,

The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence.

The guarantee that every state would have a republican form of government necessitates that the state would have its own legislature. If D.C. were to become a state while remaining the seat of government, it could not simultaneously satisfy both this requirement and the above-listed requirement of Article 1, Section 8 that Congress have exclusive legislative control over the seat of government. Therefore, it would not be constitutional for D.C. to become a state while remaining the seat of government.

Of course, if Congress decided to move the government somewhere else - and one or more states agreed to cede that territory to the federal government for the creation of a new seat of government district - then D.C. could be admitted as a state without a further amendment to the Constitution once it was no longer the seat of government. Alternatively, Congress could choose to give the remainder of the District of Columbia back to Maryland after the seat of government was moved, just as in 1847 Congress gave back the portion of the District that had been ceded by Virginia back to Virginia.

Yet another possibility would be for most of the remaining part of D.C. to be returned to Maryland, while leaving only the federal lands around where the White House, Capitol, and Supreme Court reside in a federal seat of government district. This could be done without an amendment and has actually been proposed quite a few times over the years, including relatively recently. The only part of this that might require an amendment would be repealing the 23rd Amendment, so that the handful of people (the President and maybe a few others?) who still lived in the federal portion wouldn't have 3 electoral votes to themselves.

  • It would probably also be possible for today's DC to become a state with the "seat of government" shrinking somewhat as described. Presidents have typically voted in home states, it's also possible that the "seat" could be shrunk to just the capitol, or maybe that and the west wing (but not the east), intervening parkland, supreme court, etc. – Chris Stratton Jul 31 '19 at 16:44
  • 2
    Historically the seat of government has not always been a separate, non-state district. Congress met in New York City for its first year, then passed legislation naming Philadelphia as a temporary capitol for 10 years after that while Washington, D.C. was under construction. So while the intent may be that the capitol be a district, it doesn't seem to be a constitutional requirement. en.wikipedia.org/wiki/United_States_Capitol#Background – Chris Bouchard Jul 31 '19 at 17:07
  • I don't think the "republican form of government" clause necessarily contradicts the requirement that Congress have ultimate authority. The existing DC Council is already a quasi-state legislature, and could continue to operate in that role under hypothetical statehood. The Constitution doesn't say that Congress can't overrule states' republican governments, and to the contrary it's well-established that Congressional authority trumps the states in some areas. I'm not convinced this would be a reasonable system, but I don't see why it's not possible. – Justin Jul 31 '19 at 17:43
  • 2
    @ChrisBouchard The original intent of the cited portion of Article I, Section 8 seems to be that the seat of government would, in fact, be a federally-administered district separate from any of the states, though with the understanding that it would take some time for that to happen. Since the power to even select that district was granted to the Congress, it seems pretty clear that they understood that the government would have to meet somewhere temporarily until the capitol district could be constructed. – reirab Jul 31 '19 at 18:40
  • @JustinLardinois Several portions of the Constitution separate powers between states and the federal government. Article I, Section 8's grant of complete legislative control of the seat of government district to Congress isn't really compatible with having it be part of an actual state. There is indeed a DC city council, but it was created by Congress and could be dissolved by Congress at any time should they wish to do so. The same is not true of a state legislature. No court has ruled on it to date, but my opinion would be that it would not meet the Article IV, Section 4 requirement. – reirab Jul 31 '19 at 18:44

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .