Norton Says Momentum Continues to Build for D.C. Statehood as Congressional Research Service and Leading Republican Scholar Find Constitutional Basis for Statehood
WASHINGTON, D.C. – The Office of Congresswoman Eleanor Holmes Norton (D-DC) today announced that the Congressional Research Service (CRS) and a leading Republican constitutional scholar and practitioner, Viet Dinh, have concluded that a challenge to the constitutionality of the District of Columbia statehood bill may be outside the courts' purview, and that, in any case, there is likely a constitutional basis for the D.C. statehood bill. CRS is the non-partisan legislative branch agency that provides legal and policy analysis to Congress, and Dinh is a former U.S. Assistant Attorney General for Legal Policy in the George W. Bush administration and a professor of constitutional law at Georgetown University Law Center.
"With receipt of the CRS testimony, the necessary prerequisites are now in place to move forward on D.C. statehood," Norton said. "This week, we had the first-ever Senate hearing on D.C. statehood and the first congressional hearing on D.C. statehood in more than 20 years, broke the cosponsor record for our statehood bill in both the House and Senate, and saw hundreds of D.C. residents who became statehood activists by turning out to fill the committee and overflow rooms for the hearing. The moral case for D.C. equality has always been unassailable. The legal basis for opposition to statehood continues to crumble."
CRS and Dinh provided written testimony on the constitutionality of the bill for the hearing, and Dinh was one of the witnesses. While Dinh reached more definitive conclusions than CRS, their analysis is similar. In his written testimony, Dinh concluded, "…courts would likely decline to adjudicate any constitutional challenge to the [New Columbia Admission] Act and, in all events, would likely hold that the Act is constitutional."
Both CRS and Dinh analyzed the likely constitutional challenges to the statehood bill – the 23rd Amendment (Electoral College), the New States Clause, and the District Clause (seat of government). As a threshold matter, however, both CRS and Dinh questioned whether a court would even entertain a constitutional challenge to the statehood bill. Courts generally decline to consider so-called political questions, which are left by the U.S. Constitution to the political branches. In examining the New States Clause, for example, CRS concluded, "The power of Congress over the statehood admission process appears to be committed to Congress's discretion….and the Supreme Court has provided in dicta that decisions regarding the territorial composition of a state are not generally reviewable by the judiciary."
Both Dinh and CRS concluded that the statehood bill likely does not violate either the 23rd Amendment or the New States Clause. Dinh found that the statehood bill, which reduces the size of the federal district, does not violate the District Clause. While CRS concluded that the District Clause is a closer question than other constitutional issues, it noted, "One would assume, however, that the courts would provide some deference if Congress were to determine that sufficient infrastructure and services could be provided within a smaller portion of the District of Columbia so as to avoid unnecessary influence from the surrounding states."
On Monday, the Senate Homeland Security and Governmental Affairs Committee held a hearing on the D.C. statehood bill, the New Columbia Admission Act (H.R. 292/S. 132), sponsored by Norton and Senator Tom Carper (D-DE), the chairman of the committee.
CRS's testimony can be found here.
Dinh's testimony can be found here.