The Biden administration has quietly addressed Congress Democrats over a possible change in its long-running but long-term effort to transform most of the District of Columbia into the nation’s 51st state. according to officials from the executive and legislative branches.
The bill, which was passed by the House last month but is very likely in the Senate, would allow the residential and commercial areas of the District of Columbia as a new state and leave behind a federal enclave that encompassed the seat of government. , including the Capitol, White House, Supreme Court, other federal buildings and monuments.
The deliberations focus on the 23rd amendment to the Constitution, which gives the Electoral College three votes in the presidential election at the seat of government. If not repealed after any state, the bill would try to block the appointment of the three presidential voters. But it is said that the administration proposed to give them to the winner of the popular vote.
Officials familiar with the discussion spoke on condition of anonymity, citing the political delicacy of the issue at a time when Republicans raised legal and political objections to the state’s grant to 700,000 residents of the state. District of Columbia. This move would create two additional Senate seats that Democrats would most likely win, in addition to giving a vote to the lone representative in the House.
But a White House attorney acknowledged the interprofessional dialogue among Democrats and said, “Admitting DC as a state is comfortably within the power of Congress; opposing arguments are unfounded. But we also believe there are ways to dispel the concerns that have been raised and that is why we are working with Congress to make the bill as strong as possible. “
In late April, the White House backed the state bill in a policy statement. But a little-noticed line also hinted that part of the legislation, known as HR 51, had paused President Biden’s legal team.
“The administration hopes to work with Congress as HR 51 proceeds through the legislative process to ensure that it carries the constitutional responsibilities of Congress and its constitutional authority for the admission of new states to the Union through legislation,” he said.
If political conditions ever change enough for the Senate to one day approve the state concession to the District of Columbia (which would become the smallest state by land area, even though its population exceeds Vermont and Wyoming) , states controlled by Republicans are expected to demand their constitutionality. .
The Supreme Court could dismiss this case on the grounds that it raises the kind of issue to be decided by the politically elected branches. In 1875, he rejected a case that challenged the 1845 retrocession to Virginia of an old part of the district, in part on that logic. But if the judges achieved the legal merits, they would face several new issues.
Democrats are generally said to agree on the fact that two legal objections Republicans have raised to the bill: that Maryland should pass statehood because the land was under the jurisdiction of that state before 1790 and which could be unconstitutional reduce the size of the federal enclave government headquarters – are less serious threats. They see that these arguments are not supported by the explicit text of the relevant parts of the Constitution.
But the best way to navigate the 23rd Amendment if not repealed was to give the administration’s legal team a bigger break, officials said. The amendment says the federal government headquarters will “designate” three presidential voters.
It is unclear how many potential voters, if any, would remain there. The only residence in the federal enclave would be the White House; presidential families traditionally choose to vote in their home states, but nothing forces them to do so. In theory, homeless people could also claim their residence in the planned enclave.
Alternatively, if the amendment is not repealed quickly, state law would have to make two changes by law: legal residents of the enclave (if any) could vote by ballot in absentia in their states. above and the legal procedures for appointing voters. be canceled.
But an opponent of the bill, Roger Pilon, a former Reagan administration official and legal scholar at the Cato Libertarian Institute, argued that this mechanism would not work. Congress, said in a House testimony prepared this year, cannot use a statute to remove a constitutional directive or to remove people’s constitutional rights.
Democrats are discussing changing the bill to use a different mechanism. Instead of trying to block the nomination of voters for the federal seat, Congress would enact a law designating them in a particular way. (The 23rd Amendment says that federal presidential voters will be appointed “in a manner that Congress may indicate”).
One possibility is to add these three votes to the total of any candidate who has won the Electoral College. Another is to award them to the winner of the national popular vote, which in a very close election could change its result.
It is unclear whether this change would reflect legal concerns or the idea that it would be a smarter political approach.
As a matter of political reality, granting voters the winner of the popular vote may stimulate Republican-controlled state legislatures to cooperate in the speedy repeal of the amendment rather than hampering the effort by the partisan sting: from the In 2000, Republican presidential candidates twice won the Electoral College despite losing the popular vote.
The idea for the popular vote was proposed last year by two law professors at Columbia University, Jessica Bulman-Pozen and Olatunde Johnson.
Ms. Bulman-Pozen, who worked in the Justice Department’s Office of Legal Advice during the Obama administration, said she believed the Supreme Court would say the existing bill was constitutional, but did not believe it. be as “elegant” as giving these electoral votes to the winner of the popular vote.
“I don’t think it’s the most appropriate for the text,” he said of the current approach to the bill, adding, “Congress has other options that it should consider, even if it expects the repeal of the 23rd Amendment “.
But Mr Pilon also expressed skepticism about the revision proposal, arguing it would downplay the spirit of the 23rd Amendment.
“The whole deal is an extraordinarily complicated effort to avoid the fact” that the District of Columbia “never considered it to be the source of a future state,” he said.
The deliberations take place in the context of growing, albeit incomplete, support for the Democratic Party for statehood. Advocates are trying to bolster that support to lay the groundwork for approving the bill someday if conditions change.
“I am actively engaging with my fellow Democrats and Republicans to defend the state of DC because it is not a partisan issue, but a matter of basic equity and equal representation for all citizens,” said Sen. Thomas R Carper, Delaware Democrat. who has collected the mantle of the cause in the Senate.
One of the main obstacles is the Senate filibuster rule; it would take the votes of ten Republicans and 50 Democrats to beat it. While the bill has a record number of Democratic sponsors, including Sen. Jeanne Shaheen of New Hampshire this week, four lawmakers have not signed the session, according to Mr. Carper’s office. Among those four is Arizona Sen. Kyrsten Sinema, who is on the uniformly divided committee responsible for processing the legislation.
Another, Sen. Joe Manchin III, a West Virginia Democrat, recently told a radio program that he believed a constitutional amendment was needed to admit the District of Columbia as a state. He cited the history of the debate over ways to give full representation to its residents, including comments from some prominent Democratic legal officials in the 1960s and 1970s.
However, other Democrats have noted that the context of these historic comments focused on proposals different from the idea of that era.
On the day of Mr. Manchin’s statements, the district’s non-voting representative and the main sponsor of the bill in the House, Delegate Eleanor Holmes Norton, issued a statement seeking to refute the idea that the amendment to the Constitution was necessary. As part of that argument, he raised the alternative approach that the Biden team has been instantly in private.
“Congress could choose, for example, to award voters to the winner of the Electoral College or the national popular vote to prevent the small federal district from controlling electoral votes,” he declared.