ABA LEGAL FACT CHECK

Push for D.C. statehood could face novel legal issues

April 30, 2021

The U.S. House of Representatives approved legislation on April 22 that would make the District of Columbia the nation’s 51st state. The proposal’s future still remains uncertain given the evenly divided U.S. Senate and the possibility of a Republican filibuster.

President Biden says he would sign legislation creating the state of Washington, Douglass Commonwealth, honoring abolitionist Frederick Douglass.

President Biden says he would sign legislation creating the state of Washington, Douglass Commonwealth, honoring abolitionist Frederick Douglass.


But a new ABA Legal Fact Check, released shortly after the House’s 216-208 party-line vote, explains that even if a D.C. statehood bill is passed by Congress, it likely would face formidable legal and constitutional challenges. This includes what to do with the 23rd Amendment, which was approved in 1961 and now gives the 690,000 D.C. residents three votes for U.S. president. The amendment can only be repealed by a vote of Congress and ratification by two-thirds of the states.

President Joe Biden says he would sign legislation creating the state of Washington, Douglass Commonwealth, honoring abolitionist Frederick Douglass. The House bill would also carve out a small enclave of federal buildings, which would include the White House, to serve as the “seat of government.”

The U.S. Constitution grants Congress, through majority vote, the power to create a new state although it stipulates the state cannot be formed within the jurisdiction of another without consent of the legislatures of both.

However, the land area that is now the District of Columbia is separately addressed in the Constitution. When ratified in 1788, the Constitution called for the creation of a federal enclave to serve as the permanent seat of the new national government. It also gave Congress legislative authority over the new territory that constitutionally was to be no more than 10 miles square. The new capital was subsequently carved from the original states of Maryland and Virginia.

During the ensuing years, Congress returned to Virginia its prior territory, initiated the 23rd Amendment and approved a non-voting D.C. House delegate. But District residents, who outnumber the population of two states according to new census numbers, have no voting representation in Congress.

As the ABA Legal Fact Check points out, D.C. statehood raises novel constitutional questions, in part because little case law is directly on point. Those questions include whether the Constitution gives Congress the authority to create a new state out of the District itself, and whether the 23rd Amendment, unless repealed, would leave the handful of residents of the new Capital area, primarily the occupants of the White House, three electoral votes.

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