Statehood: The Best Path for D.C.
Halfway Measures Are Unconstitutional

Sunday, February 11, 2007

The Post and some District leaders support a bill co-sponsored by Del. Eleanor Holmes Norton (D-D.C.) and Rep. Thomas M. Davis III (R-Va.) that would replace the District's delegate to the House with a voting representative -- and buy Republican support with an additional seat for Utah.

District residents deserve a vote in the House -- but the bill is misguided. It is based on a novel interpretation of the Constitution. The theory is: Congress has such power concerning the District that it can ignore provisions of the Constitution when legislating regarding the District; in this case the provision that says the House is made up of representatives of the states.

Historical precedent shows that the District cannot properly be given a representative by statute; voting representation must be provided through constitutional means:

· The District was allotted a delegate in 1970 precisely because the Constitution doesn't permit it to be given a representative.

· In 1978, Congress passed a constitutional amendment to grant the District a representative and senators because a statute couldn't grant the representation. The amendment failed when only 16 states ratified it within seven years.

· The District has sought statehood so it could have a representative and senators.

· District residents were granted the right to vote for president by the 23rd Amendment because a statute wouldn't have sufficed.

In 1993, when Puerto Rico's resident commissioner and the delegates from the District, American Samoa, Guam and the U.S. Virgin Islands originally were granted the vote on amendments to bills in the House's Committee of the Whole, a revote was required without the non-state representatives if their votes determined the outcome of an amendment. The reasoning was that only representatives of states can constitutionally determine the passage of legislation. The federal courts ruled then that, without the revote, the proposal "would have been plainly unconstitutional" and that it was constitutional with the revote provision.

The Norton-Davis bill would also have extensive implications beyond just a House vote for the District.

First, if Congress's District power can override the provision of the Constitution that limits representatives to states, it can also override the provision that says senators must come from states.

Further, the Supreme Court has interpreted Congress's power concerning territories to be as broad as its power regarding the District:

· The delegates from American Samoa, Guam and the U.S. Virgin Islands should be replaced by representatives, and Puerto Rico's resident commissioner should be replaced by six representatives, given that territory's 4 million residents.

· The Northern Mariana Islands should get a representative when the reasons for it not having a delegate are resolved.

· The territories should get senators and electoral votes by statute.

The territories have higher rates of U.S. military service among their residents than many states do. Their residents pay taxes levied by Congress, including income tax in some cases. As is the case with the District, Congress has more power over the territories than it does over the states, but it treats the territories as states in most laws.

Additionally, regarding the Norton-Davis bill, a future Congress would be able to take back the District's House vote -- perhaps leaving the additional representative for Utah -- just as it took back the District's and the territories' vote in the Committee of the Whole in 1995 before restoring it last month.

Two of the three constitutional experts who testified at the House Constitution subcommittee hearing on the Norton-Davis bill last year made many of these points, as has the Congressional Research Service's top constitutional expert.

As difficult as the answers to the problem of the lack of democratic representation for the District may be, the only constitutional answers remain becoming a state, becoming part of Maryland or a constitutional amendment. Congress should grant the District's statehood request.

-- Jeffrey L. Farrow

Chevy Chase

The writer was co-chair of the President's Interagency Group on Puerto Rico from 1994 to 2001 and was staff director of the House subcommittee on territories from 1982 to 1994.