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Commentary
Tiberiu Dianu
Recently, there have been several attempts to assimilate the District of Co-
lumbia status to the one of a US territory. In the midst of a presidential elec-
tion year, the DC Mayor Muriel Bowser, a Democrat, intends to prepare a
statehood package for the District of Columbia when the new administrati-
on takes office, irrespective of who wins in November. Supposedly, this is
“a new front in the District’s long-running fight for equal rights.” [1]
When asked about this, the former Republican presidential hopeful John Ka-
sich opined that this would be “just more votes in the Democratic Party.” [2]
This approach was seen by some as precarious vis-à-vis the almighty “Taxa-
tion without Representation” slogan. On the contrary, Hillary Clinton grabbed
the opportunity, and promised to be "a vocal champion" for DC statehood just
weeks before the city's presidential primary. [3]
Let’s try to figure out if there is any elephant in the room. On the face value,
sure, why would the DC residents not have their own representatives in the
Congress, since they – don’t we all know? – pay (federal) taxes, go to war
and fulfill other citizenship duties. As a twenty-plus-year resident in the Dis-
trict, I say: it’s not going to happen. Not anytime soon.
Here are several reasons.
-The absence of political will at the top: Washington, DC has been a city
dominated by Democrats and a Republican-dominated Congress will never
allow several Democratic congress people showing out of the blue. In addi-
tion, Maryland and Virginia Democrat representatives (let alone their Repu-
blican colleagues) do not want a DC commuter tax imposed on their own re-
sidents;
-The lack of viability as a state: DC does not have the means nor resources
to sustain a viable territory or economy in order to protect its residents within
its borders; that aside, if the new state would exclude a small federal enclave
(as proposed, in an attempt to avoid a constitutional amendment), this would
reduce its territory to a new minimum;
-The inexistence of an independent budget: according to the Article I of the
Constitution, the Congress has the power to Exercise exclusive Legislation in
all Cases whatsoever” over the District. Although the DC representatives (in-
cluding the current mayor) have threatened to pass budget autonomy laws, fe-
deral judges have constantly stricken down such initiatives over the years (see
in 2014, for that matter), ruling that only Congress can act;
-The absence of such an express provision in the US Constitution: according to
the Article IV, Section 3, Clause 1, the Constitution empowers the Congress to
grant statehood, while Clause 2 stipulates that “The Congress shall have Power
to dispose of and make all needful Rules and Regulations respecting the Terri-
tory or other Property belonging to the United States; and nothing in this Cons-
titution shall be so construed as to Prejudice any Claims of the United States,
or of any particular State.” (our emphasis, TD).
First, the legislator uses the word “territory” but not the word “district.” Seco-
nd, even if one claims that DC is “other Property belonging to the United States”
no state can be prejudiced. Originally, the DC land was part of Virginia and Ma-
ryland. Virginia land has been already returned to this state, and Maryland can
soon have the same claim if DC pushes for statehood.
Historically, the US Congress has followed a standard procedure for granting
statehood to territories. The territory holds a referendum to determine the local
population’s desire for or against statehood. If the majority vote is for statehood,
the territory addresses a statehood petition to the Congress. Then, the two Congr-
ess chambers, House and Senate, pass a joint resolution, by a simple majority vo-
te, accepting the territory as a state. Finally, the US President signs the joint reso-
lution, and the territory is acknowledged as a US state.
For this reason, the five US territories – American Samoa, Guam, Northern Ma-
riana Islands, Puerto Rico, and US Virgin Islands – have all a clear constitutio-
nal path toward statehood, provided by the aforementioned Article IV, Section 3.
The Federal District of Columbia does not have one.
In turn, what the DC mayor tries to do is to organize a “DC referendum” in No-
vember – not supported by the US Constitution – and to force the Congress to
acknowledge it. If this attempt succeeds, it will be quickly challenged in court.
The DC administration has tried in the past to promote lawsuits seeking to gr-
ant DC residents congressional voting rights (in 1998) or seeking permission to
levy a commuter tax on non-District residents (in 2003), but they were all equa-
lly unsuccessful.
More recently, the DC authorities’ enthusiasm has been curbed on May 26,
2016, when the US Congress House of Representatives voted 240 to 179 to nu-
llify a DC ballot measure that allowed the city to spend local tax dollars without
congressional approval. It is worth mentioning that several Democrat representa-
tives sided with their Republican colleagues to pass the bill. [4]
There is a good reason the District is not a state. The US Constitution provided
for a federal district under the exclusive jurisdiction of the Congress, and the Dis-
trict is therefore not a part of any US state. Which means that DC should remain
a politically neutral entity. And, since it’s not, being forever dominated by Demo-
crats, there is no ground to become a state.
The future DC (state) Constitution that the Democrats envision in the future will
certainly be a biased organic law, with provisions overtly against the current US
Constitution (like, banning The Second Amendment legal gun carrying or ban-
ning discrimination over employees’ reproductive decision and targeting the an-
tiabortion groups[5], and other standard progressive issues regarding legalization
of drugs and “equal marriage act,” to name just a few). [6]
Now the elephant (not the Republican, but the Democrat one!) is more visible in
the room. What reason might some Democrats have to reignite the discussion ab-
out the DC statehood now? That is, to press the issue of DC having 2 senators and
1 representative for the new administration, no matter who wins in November?!
Or maybe because of that. Or maybe because there is a perceived danger that the
Republicans (as disunited as they seem to be right now) may actually have a cha-
nce to conquer back the White House. In such a context, 2 senators and 1 represen-
tative, all (perpetual) Democrats, will be a major victory for the progressive Don-
key fans.
However, for those residents who still feel disenfranchised (myself included),
there are several alternative solutions.
-Territory relocation: to reincorporate the DC territory (except a small federal
enclave) to Maryland and/or Virginia (as it was before), and increase to 1 (one)
the number of U.S. representatives for these states; people would be represented
in the Congress House of the Representatives, but not in the Senate. Demographi-
cally, this is a fair solution.
-Federal tax exemption: to declare the DC territory federal-tax free, like the U.S.
territories; this will give satisfaction for the residents non-represented in Congress,
plus it will create a boom in the number of new residents and businesses. Some may
object that since Washington is a “federal district”, it should continue to pay fede-
ral tax, but in arguing so, we are back to square number one “taxation without re-
presentation” dilemma; and for those still interested to recover retroactively the
back federal taxes imposed “unconstitutionally,” they can challenge the issue in
court. Fiscally, this is a fair solution.
-Granting more electoral votes: according to the 23rd Amendment to the US Con-
stitution (ratified in 1961), the District receives three electoral votes in presidential
election, which makes the District having an intermediate position (by having elec-
toral votes both for party primaries and general elections, and a non-voting Congr-
ess member), between the US territories (with electoral votes in party primaries,
but not in general elections, and no voting Congress members) and US states (with
both electoral votes in primary and general elections, and voting Congress mem-
bers). Congress could grant DC three more electoral votes in presidential elections
(corresponding, so to speak, to the required voting 1 representative and 2 senators),
doubling the current number, from three to six. Electorally, this may be considered
by many as a fair solution.
Links:
Tiberiu Dianu is a legal scholar, book author, graduate of the American University Washington
College of Law in Washington, DC, the University of Manchester Faculty of Law in Manchester,
UK, and an exchange scholar of the Oxford University in Oxford, UK. He currently lives in Wa-
shington, DC and works for various government and private agencies. The opinions expressed
in the preceding article are those of those of the author alone and do not necessarilly represent
the views of The Puerto Rico Monitor, its editors or advertisers.
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