Warner and Kaine Wrong about D.C. Statehood

by Emilio Jaksetic

On June 26, 2020, the House of Representatives passed the Washington D.C. Admission Act (H.R. 51), which would admit the District of Columbia (D.C.) as the 51st State. The House vote was essentially along party lines, with all Democrats (except one) voting yes, and all Republicans (and one Independent) voting no.

Senators Mark Warner and Tim Kaine support that legislation. (See July 21, 2020 Warner Press Release, “Senate Democrats Hold Hearing on D.C. Statehood.”) They are wrong to support that legislation because it is barred by the unique status D.C. has under the U.S. Constitution and because Congress has no authority to amend or override the Constitution by statute.

Under Article I, Section 8, Clause 17 of the Constitution, Congress has exclusive authority over D.C. Nothing in that clause authorizes Congress to change the status of D.C. by legislation.

In 1961, the 23rd Amendment to the Constitution was ratified. That Amendment identifies D.C. as “constituting the seat of Government of the United States” and gives it representation in the Electoral College. Section 2 of the 23rd Amendment gives Congress “power to enforce this article by appropriate legislation.” But, the Section 2 power to enforce does not authorize Congress to change the status of D.C. by legislation.

In 1978, Congress passed a proposed amendment to the Constitution to give D.C. representation in Congress. Only 16 States (not including Virginia) ratified the proposed amendment, and the time limit for its ratification expired in August 1985.

Article V of the Constitution includes procedures for amendments. Nothing in Article V, or any other provision of the Constitution authorizes Congress to pass legislation that amends, overrides, or ignores provisions of the Constitution.

However strongly Warner and Kaine believe that the citizens of D.C. should have representation in Congress, their beliefs do not justify supporting legislation that ignores the Constitution or seeks to circumvent it. Good intentions cannot override the Constitution. Moreover, fidelity to their oath of office — which includes a promise “to support and defend the Constitution” — requires Warner and Kaine to support legislation that is consistent with the Constitution, not legislation that seeks to evade it.

Warner and Kaine should pursue their goal in a constitutionally proper and nonpartisan manner by offering a proposed constitutional amendment for Congress to approve and refer to the 50 States for consideration and ratification.

The 2020 Platform of the Democrat Party includes a provision for giving D.C. statehood, without calling for a constitutional amendment. Given the party-line vote in the House on H.R. 51 and the DNC platform support for such action, it is clear that D.C. statehood is a partisan objective of the Democrats, who are trying to reach that goal without using proper constitutional means.

President Abraham Lincoln spoke of the resolve “that government of the people, by the people, for the people, shall not perish from the earth.” By supporting D.C. statehood legislation, Warner and Kaine show they are willing to ignore the Constitution and stand for government of the party, by the party, and for the party.

Emilio Jaksetic, a retired lawyer, is a Republican in Fairfax County.

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17 responses to “Warner and Kaine Wrong about D.C. Statehood

  1. Two words: Commuter Tax. Everybody living in Virginia but working in DeeCee would be paying income tax on their jobs to the district, right? That would be almost instantaneous. Of course, the tax paid to the District would be deductible on your state taxes…..a deep cut into the state’s boodle. I guess the argument is the 1973 Home Rule bill prohibits it, but that’s a minor impediment and might be wiped out by statehood anyway.

    Once upon a time in Virginia this was a potent political third rail. Not anymore, apparently.

  2. This is the legal point well examined. Let’s take a minute to examine the practical reason that the Constitution requires D.C. to remain a federal district.

    In one word, the answer is federalism.

    The states are given enormous powers under the Constitution. Exclusive state powers include:
    * Issue licenses
    * Regulate intrastate (within the state) businesses
    * Conduct elections
    * Establish local governments
    * Ratify amendments to the Constitution
    * Take measures for public health and safety
    * May exert powers the Constitution does not delegate to the national government or prohibit the states from using

    Powers shared with the federal government include:
    – Collect taxes
    – Build roads
    – Borrow money
    – Establish courts
    – Make and enforce laws
    – Charter banks and corporations
    – Spend money for the general welfare
    – Take private property for public purposes, with just compensation

    So, if we are to make D.C. a state, it would be able under the constitution to interfere with the business of the federal government – to close roads and bridges, set up roadblocks to control access to federal buildings, permit demonstrations, ban flights in its airspace, and decide not to prosecute crimes against federal interests. The minute a federal official stepped off of federal property he or she would be subject to arrest for violation of state laws. It would be able to disband its National Guard so that it could not be federalized. It could (and may indeed attempt to) disband its police department to deny basic security to federal interests.

    An appropriate threat by Republicans would be next time in power to disperse federal headquarters across the country, denying D.C. (and Northern Virginia) its economy

  3. James Wyatt Whitehead V

    If DC does indeed become a state, maybe Virginia could sell Arlington and Alexandria back to the District and make it a square again. For the right price DC can have all of Northern Virginia. One condition. DC has to give back the name of Washington.

    • Ah I get you… a unique form of Gerrymandering to get rid the Dems in NoVA. Let’s give em Norfolk too so DC can have all the gov jobs. Then we would have to make Virginia work by being low tax and competitive with Tennessee, and I bet we could do it. But I’d have to move.

  4. How did our Senators address the 23rd Amendment? Are they even familiar with it? The Amendment gives the District, which would presumably be the area from the Capitol and Supreme Court to the White House and no more, three electoral votes. There are likely few District residents except the president and family. They control three electoral votes.

    There is clear intent in the Constitution to create a seat of government that is not a part of any state. Why can’t Democrats follow the procedures in the Constitution?

    And wouldn’t the SALT cap make most of the extra taxes paid to D.C. non-deductible for federal income tax purposes? As Steve notes, the payments would be deductible on the VA individual income tax form.

  5. “There is clear intent in the Constitution to ___. Why can’t Democrats follow the procedures in the Constitution?”

    Mr. Bacon should automate the posting of articles and insert the above statement into practically every posting. Just fill in the blank relative to the topic of that article.

  6. I think Washington DC should be shrunk down to include only the Capitol building, white house, supreme court building, senate/house office buildings, the Washington monument and some museums, and to have zero residents apart from the president and his family.

    The excess land can be returned to Maryland (with a tiny sliver to Virginia) and federal agencies’ headquarters offices could be dispersed among the states.

    That would address the “seat of government” issue, the “taxation without representation” issue and the “federal government is too centralized” issue all at once. And it would be Constitutional.

    Of course, that solution would not result in adding two “guaranteed democrat” senate seats, so obviously the democrats would reject it in favor of an unconstitutional “solution”.

  7. Baconator with extra cheese

    Heck yeah.. and break Cali into like 5 states too. Maybe Brooklyn can become a state… and Detroit!
    We can have Blueman-Good rule forever! I’m sure the Chinese would happily pay the renaming costs.

    • New DC, The Dominion of China!

    • The federal enclave remaining after carving out the new state of Washington, DC, is very interesting. There are several residential areas in the proposed federal enclave.
      Since Congress will control the enclave, you can bet they will keep taxes to a minimum ( because they will live there.) Also, this little village will hold three electoral votes ( which won’t be removed by Constitutional amendment.).
      Buy now into the future American Monte Carlo!

  8. Wyoming’s state budget is $7.9b per year. About $14,365 per person. The largest city in Wyoming is Cheyenne which has its own budget of about $1,000 per resident. So, $15,300 per person in Cheyenne.

    DC’s City budget is $15.5 billion over a population of 684,498 for a per-capita cost of $22,644 per person. DC income taxes range between 4% and 8.5%. Dc has some of the lowest property taxes in the country.

    Assuming that DC as a state will get less in federal subsidies and will need to fund its state apparatus (governor’s salary for example) it will need more than $22,644 per person. What will the new State of Columbia do? Tax agriculture? There isn’t any. Tax manufacturing? There isn’t any. Tax air travel? The State of Columbia has no airport to tax. Tax attendance at NFL games? The “Washington” Football Team practices in Virginia and plays in Maryland. That means the 7 scariest words in the mind of a liberal need to be spoken – We’re running out of things to tax! There’s the few businesses that operate in a “state” that is more like a gnat on an elephant’s ass than a real state. There’s personal income. There’s real estate. There’s sales. DC is already the 12th most expensive US city in the Western Hemisphere.

    And here’s the kicker … a healthy person can easily walk from anywhere in DC to Virginia or Maryland in a couple of hours. How long do you think it will take people and businesses to move out?

    The State of Columbia will be bankrupt within 10 years of its founding.

    You can fit almost 20 DCs into one Rhode Island.

    Configure enough or NoVa and Maryland to add up to 1,200 – 1,500 sq mi and The State of Columbia might have a chance.

    As a possible resident of The new State of Columbia, all I can say is – Buh, bye Richmond.

    Oh, one last thing, The State of Columbia doesn’t want Dick Saslaw. You have to keep him. What would he do if he wasn’t into Dominion’s pockets anyway?

  9. This is no different than when the feds gave Alexandria back to Virginia (which was done via legislation). DC is shrinking, not becoming a state. The land that is being removed from DC is just becoming a new state instead of being returned to its prior owner.

    “the state shall consists of all of District territory as of enactment of this bill, with specified exclusions for federal buildings and monuments, including the principal federal monuments, the White House, the Capitol Building, the U.S. Supreme Court Building, and the federal executive, legislative, and judicial office buildings located adjacent to the Mall and the Capitol Building” https://www.congress.gov/bill/116th-congress/house-bill/51

    Congress will continue to have jurisidiction over the District of Columbia they just won’t get to lord it over the tax-paying residents of the Douglass Commonwealth anymore.

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