Statehood for D.C. Could Not Be Reversed

Posted in: Government

This past weekend, a march for voting rights in Washington was also a march for voting rights in Washington. That is, a march in the nation’s capital that was dedicated to protecting voting rights for all American citizens included a call to end taxation without representation for all of the disenfranchised Americans who live in the city where the march took place.

Because the district’s political leaders are not Republicans, there is no effort afoot by the D.C. government to suppress votes, which is one of the key evils that the For the People Act and the John Lewis Voting Rights Restoration Act are designed to fight. Republican-run states from Georgia to Texas to Arizona to my own state of Florida have been busily passing anti-voting laws that must be overridden by those two essential pieces of federal legislation.

For D.C. residents themselves, however, the problem is not that they cannot vote because of Republicans’ contrived claims about voter fraud or for other pretextual reasons. It is that even eligible, legally registered voters there are not given the chance to vote for U.S. Representatives or Senators. Why? Because Washington, D.C., is not a state, which is why a march for voting rights was logically also a march for D.C. statehood.

My purpose in this column is not to argue that D.C. should become a state, although it obviously should. That argument is so easy, and the objections to it so transparently bad, that I will only briefly refer to them below on the way to discussing something more interesting, which is whether D.C.’s statehood—if granted—could be reversed later. The clear answer is no, but the reasons are interesting, as is the reason even to ask the question in the first place.

The U.S. Is a Dead Democracy Walking

In a column here on Verdict yesterday, I offered the admittedly depressing observation that the Republicans have already put in place all of the pieces necessary to turn the United States into a one-party autocracy within the next year or three. Our democracy is already dead in the sense that the death blows have been struck. Now, we are simply waiting for the body to lose consciousness.

At the end of that column, I wrote that my future columns would take that sad reality into account, and that henceforth most of my columns will share “a common structure: identify an issue, stipulate that my analysis is likely to become obsolete when the country’s rule of law finally ends, and then gamely (or, perhaps stubbornly) analyze the identified issue as if the country’s anti-democratic future is not already ordained.”

Is D.C. Statehood an Example of Something Good that Could Survive the Death of American Democracy? Yes, but with an Asterisk

This first example of my new genre, however, already seems to be a bit of an exception to what is a brand-new rule. A future Republican-dominated Congress and a Republican president could—and certainly would—repeal any voting rights legislation that Democrats might yet pass (assuming that they can pass anything at all). Because D.C. statehood is effectively irreversible, however, there actually is at least one thing that Democrats could do that would survive the coming onslaught from Republicans. That is good, but as I will explain shortly, not nearly good enough.

This is especially important because the two most annoyingly self-satisfied defenders of the Senate filibuster—Joe Manchin and Kyrsten Sinema—have both argued not only that the oft-changed filibuster rule must somehow henceforth be kept as is but that an important reason to keep the filibuster is that Republicans could undo what Democrats might do, so it is better to impose what they view as “stability,” even though their intransigence is destabilizing democracy itself.

As plenty of people have pointed out, this idea that “we shouldn’t do anything, because it might be reversed later” is odd to the point of incoherence. Essentially, the Manchin/Sinema position denies the very reason to have a democratic system, because it ignores that we hold elections to allow people to register their desire to change the country’s path (or not). What some view as instability, then, is nothing more than an odd relabeling of the most basic notion of democratic accountability. This is what constitutional republics are supposed to do—change course when the people want to do so.

When the Obama administration and congressional Democrats passed the Affordable Care Act, Republicans did not say that they would only repeal it if enough Democrats would agree to do so. Similarly, when Republicans decided that wealthy people should be able to shield $22.4 million per couple from taxation, increasing the previous (already absurdly large) estate tax exemption by more than double, they destabilized tax policy (in the Manchin/Sinema sense) via a purely partisan, majority vote.

But even giving the pro-stability argument full credit on its own terms, that would mean that there should be an exception to the filibuster to allow Democrats to do things that Republicans could not reverse on a simple majority vote. (Again, even though I disagree with Republicans on the substance of their policy agenda, the idea that they should—or would—refuse to do as they wished whenever they hold a majority is silly.)

As a practical matter, it might be that certain policies are de facto irreversible, at least as a matter of realpolitik. The Affordable Care Act, in fact, might be the prime example of this, because Republicans with any political savvy were hugely relieved when three Senate Republicans voted against repealing the ACA in 2017. The law had become very popular, and even the people who initially claimed to hate it (especially when calling it “Obamacare”) actually liked what the law does.

Similarly, sometimes a new law puts in motion social changes that would be difficult to reverse. Although I take nothing for granted (especially because Republicans are ever more committed to a deeply reactionary version of Christian fundamentalism), there are reasons to be somewhat optimistic that same-sex marriage has become a battle that Republicans will not bother re-fighting. Their own voter base includes younger generations who view marriage equality as simply not a controversial issue. Again, there is no guarantee that Republicans will not at some point try to turn back the clock, but it certainly seems less likely today than it did in 2015. Fingers crossed.

Even if there is a category of policies that might be irreversible as a matter of practical politics, however, it seems unlikely that D.C. statehood would make it onto that list. There is too much racism, too much anti-government zealotry, and too much simple partisan advantage at stake for the Republicans not to want desperately to try to undo what the Democrats should be doing even as I write these words.

I promise that I will soon explain why Republicans would not be able to strip statehood from D.C., once conferred. But my more immediate point is that, even if I am right, this will still not stop our staggering, disoriented body politic from indeed dying. At most, it might save the Senate from flipping to Republicans in 2022, if two new Democrats are added from D.C. Even then, however, Republicans’ other efforts have made it all but certain that at least the House (through gerrymandering alone, much less voter suppression) and probably the Senate will go the other way next year. And whatever does not happen next year will be finished off in 2024.

That is why, even though I am indeed arguing that something Democrats could and should do now would survive the death of democracy, it would be a Pyrrhic victory. Once Republicans have retaken the majorities in both houses of Congress, D.C. residents will be just as powerless as Oregonians and Marylanders to prevent Republicans from exercising the full powers of a one-party autocratic state.

Therefore, even though this is not an issue where, as I put it in yesterday’s column, “my analysis is likely to become obsolete when the country’s rule of law finally ends” (because D.C. will remain a state), it will not matter.

Still, I should at least point out that the current power that Senators Manchin and Sinema enjoy in a divided chamber is much more likely to continue if there are two new Democrats joining them from Washington, D.C., in January of 2023. It would be too far afield for me to run through how Democrats might maintain a slim majority even after state Republicans in Arizona and Georgia have all but guaranteed that Mark Kelly and Raphael Warnock will lose in the midterms next year. Certainly, however, if the two pro-filibuster Democrats enjoy being relevant, they might want to take another look at this issue.

Becoming and Not Unbecoming: D.C. Statehood Would Not Be Reversible

The arguments in favor of D.C. statehood are so strong that there is no need to repeat them here, especially because Republicans’ arguments against statehood are not based on serious ideas but are in fact simply very bad constitutional excuses.

That is, there is no serious moral or political argument that explains why people who happen to live on one side of the Potomac or beyond an arbitrary line on a map should be represented in the federal legislature, but those on the other side should not. (Until two years ago, I happened to live less than a mile north of Eastern Avenue, which made me a citizen of Maryland even as I worked at a university located on the other side of the district/state line. My neighbors and I strongly supported D.C. statehood, not because it was good for us, but because it is simply right.)

Lacking anything intelligible to say, Republicans have been reduced to making weird arguments that, for example, statehood should only be available to people who live in places with car dealerships. (I kid you not. And in case anyone is wondering, D.C. does in fact have car dealerships.)

Instead, as I suggested above, the not-completely-laughable arguments against statehood for D.C. are based on (mis)readings of the Constitution. On this topic, I have nothing to add to the masterful analysis that Berkeley Law’s Dean Erwin Chemerinsky offered a few months ago, exposing the emptiness of some Republicans’ reliance on a misunderstanding of the 23rd Amendment. As Chemerinsky explains, nothing in that Amendment prevents Congress from passing a law making D.C. a state, and in fact the Amendment itself authorizes Congress to make any changes necessary to federal law to make it constitutionally kosher. All of those needed provisions, in fact, are included in H.R. 51, which is still awaiting Senate action.

But let us be clear. Those who would rely on a tendentious (at best) reading of the 23rd Amendment to deny statehood to D.C. are saying this: “Sure, I cannot come up with a reason that D.C. should not be a state, but our hands are tied by the Constitution. Gee, I don’t like that fact any more than I would have liked living with the three-fifths compromise. I cannot defend it any more than I can defend the existence of the anti-democratic Senate itself, but this is what the founders of this country gave us. You might think it’s a bummer, but we have to live with it.”

All of which means that Chemerinsky’s argument is important not solely because of its solid legal reasoning but because he is explaining why an at-worst ambiguous constitutional provision should not disenfranchise people in the way that bad-but-unambiguous provisions do. We have the Senate because we have a document that expressly creates it, and that makes it all but impossible to change it. The three-fifths compromise, another crystal clear (but grotesquely immoral) provision, was negated only through a bloody civil war.

D.C. statehood, however, should be seen not as some unfortunate casualty of an earlier drafting error. Republicans are trying to make a later-enacted, narrow amendment do their dirty work for them.

I concede, then, that I am not offering my own argument that D.C. statehood by majority vote in Congress (and with the President’s signature) is constitutional. I generally do not like to rely exclusively on appeals to authority, but when an authority as reliable as Dean Chemerinsky speaks with such force, there is truly nothing to add.

And this finally brings us to the question implied by the Manchin/Sinema fetishization of stability: Even if Democrats could grant D.C. statehood, could Republicans snatch it back as soon as they inevitably take power?

Section 3 of Article IV of the Constitution reads:

New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

There is nothing in the Constitution that provides for the elimination of any states, and the provisions above only indirectly provide the answer. Everything in Section 3 reads as a one-way ratchet, creating states but not destroying them. It is true that Section 3 makes it difficult for new states to come into existence by carving up (or combining) existing states, but that is to preserve the integrity of existing states.  There is silence as to the question: “Could we simply make a state a non-state?”

The answer must be no, however, because once D.C. becomes a state, its territorial integrity and place within the system of united states is no different from any other state’s. Certainly, D.C. could not lose state status to be merged into another state.

The only way Republicans could proceed would be to say that nothing in Article 3 quite says that what was a state (or part of a state) cannot be turned into a non-state, separate from all other states.

That move, however, could then be applied to any state. Congress alone could not create two states out of, say, Massachusetts, but it could turn it into two non-states. And at that point, it could presumably create two new states by turning these two non-states into states—all without explicitly violating the provision that says that the original state’s legislature must approve the creation of a state from within its borders. Similarly, Congress could evade the “junction of two or more states” provision simply by taking away state status from the original states, then doing its dirty business a moment later. Congress cannot be permitted to get around a constitutional provision merely by breaking one scheme into two steps.

Or, to extend this troubling logic further, allowing a Republican-led Congress to turn D.C. back into a non-state would only be possible if Congress also has the power to turn New York, California, Illinois, or any other politically inconvenient state into a non-state—not to split them up or to recombine them, but simply to move them permanently into the status of non-states.

In the end, then, the Constitution’s text does not tell us how—or even whether—the framers would have wanted us to be able to take away statehood from any state. The only way to make D.C. something other than a state after it had gained statehood, however, would create havoc. (And, I might add, it would nakedly violate the most basic principles of federalism.) Allowing this to happen would be a license for Republicans to take partisan retribution to levels never seen before.

Why? Saying that the Constitution allows Republicans to take away D.C.’s statehood would give them the ability to go beyond suppressing votes in swing states, as they are doing now. In that world, there would no longer be red states and blue states. There would only be red states and regions that had been stripped of their statehood for having committed the sin of voting for Democrats.

Republicans could thus completely silence voters in every Democratic-leaning state. And being politically silenced is exactly what D.C.’s citizens have endured for far too long.

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