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Dozens of constitutional scholars tell Congress it has power to make D.C. a state

NBC News logo NBC News 5/24/2021 Sahil Kapur
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WASHINGTON — Dozens of constitutional experts are sending a letter telling congressional leaders they have the authority to make the nation's capital the 51st state.

"As scholars of the United States Constitution, we write to correct claims that the D.C. Admission Act is vulnerable to a constitutional challenge in the courts," write the 39 signatories, who include Laurence Tribe of Harvard Law, Erwin Chemerinsky of UC Berkeley Law, Larry Sabato of the University of Virginia and Leah Litman of the University of Michigan Law School.

They argue that there is "no constitutional barrier" to the District's "entering the Union through a congressional proclamation, pursuant to the Constitution's Admissions Clause, just like the 37 other states that have been admitted since the Constitution was adopted."

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The letter is a new entry into the heated battle over whether Congress can — and should — make this city of about 700,000 residents a state, with equal representation on Capitol Hill. It is likely to fuel the debate over legal questions that have left proponents struggling to find a path to get the legislation on the desk of President Joe Biden, who has endorsed statehood.

The Democratic-controlled House last month passed the D.C. Admission Act, which would create a 51st state with one House representative and two senators; it would be known as Washington, Douglass Commonwealth — named after the famed abolitionist Frederick Douglass.

To address the constitutional requirement for a "seat of the Government of the United States," it would turn the District into a small sliver of land including the White House, the U.S. Capitol and the National Mall.

The scholars vouch for it, but the legislation faces a steep climb in the Senate.

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It lacks a majority in the evenly divided chamber after Sen. Joe Manchin, D-W.Va., recently said he was opposed, saying supporters should propose a constitutional amendment because if statehood is achieved through an act of Congress, it will be challenged, and "you know it's going to go to the Supreme Court."

Republicans strongly oppose statehood for Washington, saying that it goes against the intent of the framers and that it would require amending the Constitution. Many have also accused Democrats of wanting to make this liberal-leaning city a state to add two senators to their ranks.

The scholars have a response: The courts won't stop it.

"Congress's exercise of its express constitutional authority to decide to admit a new state is a classic political question, which courts are highly unlikely to interfere with, let alone attempt to bar," they write in the letter.

Even if statehood were to win a majority, Democrats would need to find a way around the 60-vote threshold in the Senate, with no realistic chance of winning Republican support.

While the scholars did not mention Manchin, they did allude to the history of his state to argue that the Supreme Court "has never interfered with Congress's admission of a state, even when potentially legitimate constitutional objections existed."

When Congress admitted West Virginia into the Union in 1863, there were arguments that it violated the Admissions Clause, they wrote in the letter. "The Supreme Court, however, did not bar West Virginia's admission; to the contrary, it later tacitly approved of it," the letter says.

Sen. Tom Carper, D-Del., said in response to the letter Monday that he is “more optimistic than ever that we can finally make D.C. statehood a reality this Congress.”

“These leading law experts confirm what I have said before: Washington, D.C. is taking the same well-traveled road towards statehood that 37 other states have taken since 1791,” he said.

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