NPI's Cascadia Advocate

Offering commentary and analysis from Washington, Oregon, and Idaho, The Cascadia Advocate is the Northwest Progressive Institute's unconventional perspective on world, national, and local politics.

Sunday, May 2nd, 2021

Joe Manchin’s latest comments suggest his grasp of U.S. constitutional law is lacking

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.

Here’s what Manchin said when asked about D.C. state­hood by a radio sta­tion:

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.

Um, what?

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.

Sec­tion 1

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.

Sec­tion 2

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.

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