A few weeks ago, voters in Georgia and across the United States elected a class of United States Senators that left the country’s smaller legislative chamber evenly divided between Democrats/independents and Republicans. With Vice President Kamala Harris able to break ties in favor of the Democratic caucus, operational control of the Senate suddenly shifted from Kentucky’s Mitch McConnell to New York’s Chuck Schumer, the Democratic leader, which was a big deal.
Although Schumer now has the power to set the agenda and determine the Senate’s schedule, he is logistically constrained by the lack of a bigger majority. To pass budget bills or confirm Biden nominees, Schumer needs all forty-nine of his colleagues to be in the same boat with him, because even a single defection would be ruinous in the face of unified Republican opposition.
This has resulted in a legislative dynamic in which individual senators like West Virginia’s Joe Manchin wield tremendous power. Because Manchin is the fiftieth vote, his disapproval effectively means that whatever his party might want to put on the table becomes a no-go, as we saw back in the winter when the American Rescue Plan was under consideration in the Senate.
Recently, Manchin made it clear that he isn’t open to abolishing or reforming the Senate’s rules to allow legislation to be moved and adopted by majority vote instead of being subjected to the set of undemocratic bill killing mechanisms that have become known as the filibuster. Without abolition of the filibuster, Mitch McConnell and his Republican caucus can easily stop any piece of legislation they do not like, just as they did in the first six years of Barack Obama’s presidency.
Though the filibuster remains in place, progressive organizations have continued organizing in support of worthy bills that the country needs, such as H.R. 1 (the For the People Act), H.R. 7 (the Paycheck Fairness Act), H.R. 1280 (the George Floyd Justice in Policing Act) and H.R. 51, a bill to admit D.C. as a state.
The hope is that perhaps Manchin and Arizona’s Kyrsten Sinema will come around and at least agree to a change in Senate rules to let some of these bills through.
However, with respect to H.R. 51 (D.C. statehood), Manchin has once again declared that he isn’t on board. And in the process, he has demonstrated that his grasp of United States constitutional law is lacking. Severely lacking.
If Congress wants to make D.C. a state, it should propose a constitutional amendment… It should propose a constitutional amendment and let the people of America vote.
Manchin also claimed to host Hoppy Kercheval that he and his legislative staff have done a “deep dive” on the issue and contended that if Congress were to pass a D.C. statehood bill, it would undoubtedly be challenged in court.
“Every legal scholar has told us that, so why not do it the right way and let the people vote and see if they want a change,” Manchin said.
The process for changing the United States Constitution does not entail letting the people of the United States vote. The fact that Manchin talked about letting the people vote not once but several times suggests that he’s not actually familiar with the process for changing the United States Constitution, which is concerning.
While many states have a process for changing their state constitutions that entails holding a public vote (Washington, Oregon, and Idaho are among them), the process for changing the U.S. Constitution doesn’t involve a vote of the people. There is no opportunity to “let the people of America vote” by submitting a constitutional amendment to the states for ratification.
Ratification normally requires three-fourths of the states to sign off. It is a task that must be performed either by state legislatures or by conventions called for the purpose of considering constitutional amendments. (Note that abolishing the United States Senate or making it like the U.S. House would require the unanimous consent of all states admitted to the Union.)
Here is Article V of the United States Constitution:
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
Perhaps when Manchin said “let the people of America vote” he was thinking of state legislatures. But if so, why didn’t he just say that? Why run the risk of confusing his constituents by talking about holding a nationwide plebiscite, which is not something that the Constitution allows or provides for?
Because H.R. 51 does not abolish the District of Columbia, but merely creates a new state around a shrunken federal district, it is compatible with the Constitution’s well understood process for admitting new states.
The District is under Congress’ control, and is not territory that belongs to another state. Thus, there is no legal impediment to Congress adopting H.R. 51 and creating a new state out of the current District of Columbia.
It is true that there is a provision in the Constitution providing that the District shall have a certain number of electoral votes in the Electoral College — the Twenty-Third Amendment. Since there would still be a federal district, said jurisdiction would retain its electoral votes until the Constitution were changed.
The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct:
A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.
The Congress shall have power to enforce this article by appropriate legislation.
Congresswoman Eleanor Holmes Norton — who, unlike Senator Joe Manchin, is a constitutional law expert — has released a statement in response to Joe Manchin’s comments which explains why the Twenty-Third Amendment is not a problem for H.R. 51. Here’s that statement in its entirety:
Congresswoman Eleanor Holmes Norton (D‑DC), a former tenured professor of constitutional law, today released the following explanation on why the 23rd Amendment, which allows the federal district to participate in the Electoral College, does not need to be repealed before Congress could grant statehood to the District of Columbia.
Norton said: “Those who make such an assertion are conflating a policy choice and a constitutional requirement.
“First, no new state was admitted by constitutional amendment. All 37 new states were admitted by Congress, and there has never been a successful constitutional challenge to the admission of a state. The Constitution commits admission decisions solely to Congress.
“Second, neither the text of the District Clause of the Constitution, which gives Congress plenary authority over the federal district, nor the text of the 23rd Amendment establishes a minimum geographic or population size, or even a location, of the federal district. Under both clauses, Congress has the authority to reduce the geographic and population size of the federal district, as the D.C. statehood bill would do.”
“Third, even though the 23rd Amendment does not need to be repealed before D.C. statehood, some scholars have argued that the 23rd Amendment would be nullified under the D.C. statehood bill, either because the bill would repeal the enabling statute for the amendment, or because the bill would lead to the unreasonable result of allowing the reduced federal district to participate in the Electoral College.”
“Fourth, even though the 23rd Amendment does not need to be repealed before D.C. statehood, we expect Congress and the states to quickly repeal the amendment to prevent the reduced federal district from participating in the Electoral College.”
“Fifth, even though the 23rd Amendment does not need to be repealed before D.C. statehood, Congress may have discretion in how it awards the electoral votes. The 23rd Amendment provides that the federal district “shall appoint” electors “in such manner as the Congress may direct.”
“Congress could choose, for example, to award the electors to the winner of the Electoral College or the national popular vote to prevent the reduced federal district from controlling electoral votes.”
On April 22, 2021, the House passed Norton’s D.C. statehood bill, the Washington, D.C. Admission Act (H.R. 51), which would admit the State of Washington, D.C. and reduce the size of the federal district. That was the second time in history a chamber of Congress had passed the D.C. statehood bill. House passage last year was the first. The Senate version (S. 51), sponsored by Senator Tom Carper (D‑DE), has a record 44 cosponsors.
This analysis is spot-on.
Joe Manchin may have the power — for now — to block D.C. statehood from advancing. But we believe the time is coming when there will be sufficient votes in the United States Senate to both abolish the filibuster and pass H.R. 51.
In the meantime, we hope Senator Manchin takes the time to actually read the Constitution and brush up on his knowledge of constitutional law. A United States Senator should be extremely familiar with the country’s plan of government.