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.