[Senate Hearing 117-481]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 117-481

                        EXAMINING D.C. STATEHOOD

=======================================================================

                                HEARING

                               before the

                              COMMITTEE ON
               HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
                          UNITED STATES SENATE

                    ONE HUNDRED SEVENTEENTH CONGRESS


                             FIRST SESSION

                               ----------                              

                             JUNE 22, 2021

                               ----------                              

        Available via the World Wide Web: http://www.govinfo.gov

                       Printed for the use of the
        Committee on Homeland Security and Governmental Affairs

















                                                        S. Hrg. 117-481

                        EXAMINING D.C. STATEHOOD

=======================================================================

                                HEARING

                               before the

                              COMMITTEE ON
               HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
                          UNITED STATES SENATE

                    ONE HUNDRED SEVENTEENTH CONGRESS


                             FIRST SESSION

                               __________

                             JUNE 22, 2021

                               __________

        Available via the World Wide Web: http://www.govinfo.gov

                       Printed for the use of the
        Committee on Homeland Security and Governmental Affairs




               [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]






                                 ______
                                 

                 U.S. GOVERNMENT PUBLISHING OFFICE

46-567 PDF                WASHINGTON : 2022











        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                   GARY C. PETERS, Michigan, Chairman

THOMAS R. CARPER, Delaware           ROB PORTMAN, Ohio
MAGGIE HASSAN, New Hampshire         RON JOHNSON, Wisconsin
KYRSTEN SINEMA, Arizona              RAND PAUL, Kentucky
JACKY ROSEN, Nevada                  JAMES LANKFORD, Oklahoma
ALEX PADILLA, California             MITT ROMNEY, Utah
JON OSSOFF, Georgia                  RICK SCOTT, Florida
                                     JOSH HAWLEY, Missouri

                   David M. Weinberg, Staff Director
                    Zachary I. Schram, Chief Counsel
   Lena C. Chang, Director of Governmental Affairs and Senior Counsel
              Chelsea A. Davis, Professional Staff Member
                Pamela Thiessen, Minority Staff Director
    Andrew Dockham, Minority Chief Counsel and Deputy Staff Director
 Amanda H. Neely, Minority Deputy of Governmental Affairs and General 
                                Counsel
           Meredith M. Pohl, Minority Deputy General Counsel
                     Laura W. Kilbride, Chief Clerk
                     Thomas J. Spino, Hearing Clerk











                            C O N T E N T S

                                 ------                                
Opening statements:
                                                                   Page
    Senator Peters...............................................     1
    Senator Portman..............................................     2
    Senator Carper...............................................     3
    Senator Johnson..............................................    22
    Senator Lankford.............................................    27
    Senator Rosen................................................    32
    Senator Hawley...............................................    36
Prepared statements:
    Senator Peters...............................................    45
    Senator Portman..............................................    46
    Senator Carper...............................................    49

                               WITNESSES
                         Tuesday, June 22, 2021

Hon. Eleanor Holmes Norton, Delegate of the District of Columbia, 
  U.S. House of Representatives..................................     5
Hon. Joseph Lieberman, Former U.S. Senator from the State of 
  Connecticut....................................................     7
Hon. Muriel E. Bowser, Mayor, District of Columbia...............    10
Hon. Marc H. Morial, President and Chief Executive Officer, 
  National Urban League..........................................    13
Richard Primus, D.Phil, Theodore J. St. Antoine Collegiate 
  Professor of Law, University of Michigan Law School............    15
Roger Pilon, Ph.D., Vice President for Legal Affairs, The Cato 
  Institute......................................................    17
Derek T. Muller, Professor of Law, University of Iowa College of 
  Law............................................................    19

                     Alphabetical List of Witnesses

Bowser, Hon. Muriel E.:
    Testimony....................................................    10
    Prepared statement...........................................    57
Lieberman, Hon. Joseph:
    Testimony....................................................     7
    Prepared statement...........................................    53
Morial Hon. Marc H.:
    Testimony....................................................    13
    Prepared statement...........................................    70
Muller, Derek T.:
    Testimony....................................................    19
    Prepared statement...........................................    96
Norton, Hon. Eleanor Holmes:
    Testimony....................................................     5
    Prepared statement...........................................    51
Pilon, Roger, Ph.D.:
    Testimony....................................................    17
    Prepared statement...........................................    88
Primus, Richard D.Phil.:
    Testimony....................................................    15
    Prepared statement...........................................    75

                                APPENDIX

Carper chart.....................................................   110
Viet D. Dinh 2014 Testimony......................................   111
Fitzroy Lee, Interim Chief Financial Officer Government of the 
  District of Columbia House Testimony...........................   124
Harry Wingo House Testimony......................................   128
Law Professors Letter............................................   132
NAACP and PP Letter..............................................   140
Federalist 43 Papers.............................................   148
Loughborough v Blake.............................................   155
Wurman Article...................................................   164
Additional statements for the Record:
    American Civil Liberties Union...............................   171
    American Civil Liberties Union of West Virginia..............   193
    American Federation of Government Employees..................   195
    Arizona Jews for Justice.....................................   196
    Conservative Voices..........................................   202
    District of Columbia Bar.....................................   205
    DC for Democracy.............................................   210
    Faith Leaders................................................   215
    Rose Ippolito................................................   243
    Jesse Lovell.................................................   244
    League of Women Voters of the United States..................   247
    Maine People's Alliance......................................   249
    George Derek Musgrove Report.................................   252
    National Active and Retired Federal Employees Association....   283
    Neighbors United for D.C. Statehood..........................   285
    NOPE for DC Statehood........................................   290
    Dave Yost, Ohio Attorney General.............................   292
    Wren Patton..................................................   296
    Alan Wilson, Attorney General of South Carolina..............   297
    Sunrise DC...................................................   302
Responses to post-hearing questions for the Record:
    Ms. Bowser...................................................   303
    Mr. Morial...................................................   310
    Mr. Pilon....................................................   312
    Mr. Muller...................................................   316






 
                        EXAMINING D.C. STATEHOOD

                              ----------                              


                         TUESDAY, JUNE 22, 2021

                                     U.S. Senate,  
                           Committee on Homeland Security  
                                  and Governmental Affairs,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10 a.m., via 
Webex and in room SD-342, Dirksen Senate Office Building, Hon. 
Gary Peters, Chairman of the Committee, presiding.
    Present: Senators Peters, Carper, Hassan, Sinema, Rosen, 
Padilla, Ossoff, Portman, Johnson, Lankford, Scott, and Hawley.
    Also present: Delegate Eleanor Holmes Norton.

            OPENING STATEMENT OF CHAIRMAN PETERS\1\

    Chairman Peters. The Committee will come to order. I would 
like to say thank you to our witnesses for joining us to 
examine legislation introduced by my colleague, Senator Tom 
Carper, to make the District of Columbia our nation's 51st 
State.
---------------------------------------------------------------------------
    \1\ The prepared statement of Senator Peters appear in the Appendix 
on page 45.
---------------------------------------------------------------------------
    I would also like to extend a warm welcome to Washington, 
D.C.'s Delegate to the U.S. House of Representatives, 
Congresswoman Eleanor Holmes Norton, as well as former Senator, 
and also a former Chairman of this Committee, Joe Lieberman. 
Certainly Congresswoman Eleanor Holmes Norton, I appreciate 
your attendance here today, and I want to recognize your 
incredible leadership on this issue over many years, so it is 
wonderful to have you here before the Committee.
    For decades, you both have, Senator Lieberman as well, 
served as strong advocates in the conversation to give D.C. 
residents an equal voice, and today, for the first time in 
nearly seven years, this Committee will continue that 
discussion and hear from the Mayor, policy, legal, and civil 
rights experts on how lawmakers can finally give D.C. residents 
the same representation in Congress as their fellow Americans.
    This lack of representation for the residents of this city, 
which serves as a beacon of freedom and democracy around the 
world, is a stunning contradiction.
    Since 1790, when President Washington signed into law the 
Permanent Seat of Government Act, D.C. has served as our 
Nation's Capital. D.C.'s more than 700,000 residents, many of 
whom have fought in our wars, paid Federal taxes, and served 
the American people in public service, have been denied an 
equal voice in the formation of the very laws and decisions 
that govern them. This is unconscionable.
    It is time to follow the lead of our colleagues in the 
House, pass the Washington D.C. Admission Act, which will 
finally ensure that D.C. residents have the full congressional 
representation and self-governance that they deserve, and that 
our democracy is built on.
    Our nation's most defining principle is that our 
government's power is derived directly from the people. It is 
why we elect leaders to represent us in Congress, and every 
American should be entitled to the same representation in our 
democratic republic, no matter which part of our nation they 
live in.
    When the founders first established a permanent seat of 
government at a site along the Potomac River, they could have 
never imagined it would become the large, vibrant, and diverse 
city that more than 700,000 Americans call home. While we may 
hear a number of questions raised about this issue today, I 
encourage all of my colleagues to stay focused on the core 
civil rights issue that we have an opportunity to address.
    I look forward hearing from our witnesses and having a 
productive discussion today about making the District of 
Columbia our nation's 51st State.
    With that I turn it over to Ranking Member Portman.

            OPENING STATEMENT OF SENATOR PORTMAN\1\

    Senator Portman. Thank you, Chairman Peters, and thank you 
for our witnesses. We have a distinguished group here today, 
including Eleanor Holmes Norton, my Congresswoman when I am 
here in D.C., and Senator Joe Lieberman, who is back to this 
Committee, having served as its Chair and Ranking Member, and 
really was the heart and soul of this Committee when he was 
here. We are also going to hear from Mayor Bowser today. I 
appreciate her coming, and a good group of academics.
---------------------------------------------------------------------------
    \1\ The prepared statement of Senator Portman appears in the 
Appendix on page 46.
---------------------------------------------------------------------------
    As you know, Mr. Chairman, I have both practical and 
constitutional concerns about making Washington, DC. its own 
State. Legally, Congress does not have the power to override 
the Constitution, and that is, to me, the most important issue 
here. D.C., of course, is the only place specifically created 
by the Constitution in Article 1 as the ``seat of government,'' 
meaning, it has a special constitutional status completely 
different from any current or previous U.S. territory that 
eventually became a State through the Article 4 Admissions 
Clause.
    Our framers gave us a limited Federal Government, one in 
which Congress only wields the power explicitly granted to it. 
Here, neither the District Clause nor the Admissions Clause 
provide Congress with the power to transform the ``seat of 
government'' into a new State. Moreover, D.C. has special 
constitutional status, of course, in the 23rd Amendment, which 
grants D.C. residents three electoral votes in Presidential 
elections. We cannot legislate over these constitutional 
provisions.
    Further, when Maryland authorized the cession of nearly 60 
miles of its territory to the Federal Government for the 
creation of the District of Columbia in 1788, it did so for the 
purpose that, ``Congress may fix upon and accept [the land] for 
the seat of government,'' When Congress formally accepted the 
land from Maryland by legislative act in 1790, we explained 
that the land was, ``hereby accepted for the permanent seat of 
the government of the United States.'' Maryland gave up its 
land, and we accepted it, so that we could create an 
independent Federal Governmental district.
    Making D.C. into a separate State violates the solemn 
compact we made over 200 years ago with Maryland, as well. By 
the way, we would be creating a State that by acreage comprises 
less than 6 percent of the next smallest State, Rhode Island. A 
better option, in my view, would be to retrocede a large 
portion of the District to Maryland. Retrocession is the 
preferable way to provide D.C. residents with voting 
representation in both chambers of Congress.
    This issue has come up before. The States declined to 
ratify the D.C. Voting Rights Amendment (DCVRA) in the 1970s, 
which would have granted D.C. Congressional representation in 
both Houses of Congress and repealed the 23rd Amendment. Only 
16 States ratified that amendment, 22 States short of the 
required two-thirds for adoption. Surveys today would 
demonstrate that the American people are still not interested 
in eliminating their capital district.
    Again, Mr. Chairman, I appreciate the witnesses coming 
today, and I look forward to hearing their testimony.
    Chairman Peters. Thank you, Ranking Member Portman.
    Before we turn it over to our distinguished guests and 
panel I want to give the lead sponsor of the Washington, D.C. 
Admission Act, the lead sponsor here in the Senate, Senator Tom 
Carper, an opportunity to address the Committee.

             OPENING STATEMENT OF SENATOR CARPER\1\

    Senator Carper. Thank you so much, Mr. Chairman. 
Colleagues, I appreciate this opportunity. Let me welcome Joe 
Lieberman. Welcome back to your home, and thank you for your 
years of leadership. Welcome to another Yale grad, Eleanor 
Holmes Norton. A couple of teammates here. Great to see you 
both. Thank you for joining us today and for your leadership.
---------------------------------------------------------------------------
    \1\ The prepared statement of Senator Carper appears in the 
Appendix on page 49.
---------------------------------------------------------------------------
    When Joe Lieberman left the Senate he handed off a piece of 
legislation to me, and it is the piece of legislation that is 
before us today.
    When summer ends and school resumes this fall, millions of 
American schoolchildren will begin each day by repeating these 
words: ``I pledge allegiance to the flag of the United States 
of America, and to the republic for which it stands, one 
nation, under God, with liberty and justice for all.'' One 
nation, under God, with liberty and justice for all.
    We are a nation of many faiths--Protestant, Catholic, Jew, 
Muslim, Buddhist, Hindu, and others. Each of these six 
religions share at least one thing in common, each of them. 
They share this admonition to love our neighbors as ourselves 
and to treat other people the way we want to be treated.
    The more than 700,000 citizens of the District of Columbia 
are our neighbors. They deserve to be treated as such by the 
rest of us in this country. They pay more on a per capita basis 
in Federal income taxes than any of the 50 States, yet they 
have no vote in the U.S. House of Representatives or the 
Senate. They serve in the U.S. Army (USA), the U.S. Navy (USN), 
the U.S. Air Force (USAF), the U.S. Marine Corps (USMC), the 
National Guard, yet they have no vote in the U.S. House of 
Representatives or the U.S. Senate.
    The leader of every State is authorized to call up their 
National Guard in times of crisis, but we learned on January 
6th that the elected leader of the District of Columbia has no 
such authority. The District of Columbia has earned an AA+ 
credit rating, higher than most other States, yet the Congress 
has to approve the District's budget.
    Some of the finest judges serve on D.C. courts, but the 
Congress has to approve each one of them, and when the Federal 
budget shuts down because of a budget impasse, it creates 
turmoil, budget turmoil, for the District of Columbia. When the 
Congress fails to vote to confirm highly qualified judges for 
weeks, for months, and sometimes for years, justice is delayed 
and sometimes justice is denied.
    Two hundred forty-five years ago, 13 colonies took on the 
mightiest nation on earth, England, because of unjust 
treatment. They found particularly galling the requirement to 
pay taxes without representation. Taxation without 
representation became the rallying cry that led to our 
Declaration of Independence and a war to achieve it. The people 
of the District of Columbia have no interest in waging a war 
for independence. They want to be treated fairly and justly.
    We should do that, and we can start doing that by enacting 
legislation that has passed the House of Representatives and is 
the subject of today's hearing. That is the right thing to do, 
the right thing to do. It meets constitutional muster, it puts 
the District of Columbia on the very same path followed by all 
37 States who entered the union since, I believe, 1791.
    To paraphrase Mark Twain, ``When it doubt, do what's right. 
You will amaze your friends and confound your foes.'' Let's do 
what is right. We start by treating our neighbors here in the 
District of Columbia the way we want to be treated.
    By the way, I want to give you another quote that may come 
as a surprise. It did to me, and it might to you as well. Here 
is another quote. ``The fact that more than half a million 
Americans live in the District of Columbia and are denied a 
single voting representative in Congress is clear an historic 
wrong and justice demands that it be addressed.'' I do not 
agree with our former Vice President, Mike Pence, on 
everything, but we certain agree on this one.
    Thank you, Mr. Chairman.
    Chairman Peters. Thank you, Senator Carper, and thank you 
for your leadership on this issue over many years.
    Before I introduce our witnesses, I want to give two very 
important guests an opportunity to provide remarks. Our first 
is Congresswoman Eleanor Holmes Norton, the delegate to the 
U.S. House of Representatives from the District of Columbia. 
Congresswoman Holmes Norton has, without question, been the 
leading voice in this fight for statehood, as she has worked 
tirelessly--I think that is a good word to sum up your work, 
Congresswoman--tirelessly to provide her constituents with 
equal representation throughout her 15-term tenure in the 
Congress. She recently led the passage of the Washington D.C. 
Admission Act through the Congress earlier this year.
    Welcome, Congresswoman. Again, thank you for your tireless 
leadership on this issue, and I speak for the entire Committee, 
we look forward to hearing your remarks.

 STATEMENT OF THE HONORABLE ELEANOR HOLMES NORTON,\1\ DELEGATE 
   TO THE U.S. HOUSE OF REPRESENTATIVES FROM THE DISTRICT OF 
                            COLUMBIA

    Ms. Norton. Thank you very much Mr. Chairman.
---------------------------------------------------------------------------
    \1\ The prepared statement of Ms. Norton appears in the Appendix on 
page 51.
---------------------------------------------------------------------------
    Chairman Peters, on behalf of the 700,000 District of 
Columbia residents, including 30,000 veterans, I thank you for 
holding this hearing and for being an original co-sponsor of 
the District of Columbia statehood bill.
    This hearing is of historic significance, because it is 
only the second Senate hearing on our D.C. statehood bill in 
the nation's history. In the last year, the House of 
Representatives has twice passed our D.C. statehood bill. In 
1993, when I first came to the House of Representatives, I got 
the first-ever House vote on D.C. statehood, but the bill 
failed because the House had a very different composition then. 
Prior to last year, neither chamber of Congress had ever passed 
the D.C. statehood bill in the nation's history.
    Senator Carper, I particularly thank you for sponsoring our 
D.C. statehood bill and for being a champion for D.C. in the 
Senate, where we have no representation. Following in the 
footsteps of Senator Joe Lieberman, under your leadership the 
D.C. statehood bill has 45 Senate co-sponsors, which is the 
greatest number of Senate co-sponsors of the bill in the 
nation's history.
    President Biden strongly supports D.C. statehood, our D.C. 
statehood bill, and is the first President to put the full 
weight of the presidency behind the bill in the nation's 
history. 54 percent of the American people, more than half of 
the American people, support D.C. statehood. According to a 
recent, very detailed poll, this is the greatest support for 
D.C. statehood in the nation's history.
    Congress has both the moral obligation and the 
constitutional authority to pass our D.C. statehood bill. The 
country was founded on the principles of no ``taxation without 
representation'' and consent of the government, but D.C. 
residents are taxed without representation and cannot consent 
to the laws under which they, as American citizens, must live.
    The State of Washington, DC. would consist of 66 of the 68 
square miles of the present-day Federal District. The Federal 
District would be two square miles, and Congress would retain 
control over it, as required by the Constitution. The D.C. 
statehood bill clearly complies with the Constitution, 
including the Admissions Clause, the District Clause, and the 
23rd Amendment.
    Those who believe the bill is constitutional need only rely 
on the plain text of the Constitution. A group of very 
distinguished law professors and scholars from America's top 
law schools have sent a definitive analysis of the bill's 
constitutionality to the House and Senate leadership. You 
already have that, so I do not believe to ask that it be 
admitted to the record. The Admissions Clause gives Congress 
the authority to admit new States. All 37 new States were 
admitted by Congress, by majority vote. No State was admitted 
by constitutional amendment, and no State would have to consent 
to the admission of the State of Washington, DC.
    The District laws gives Congress plenary authority over the 
Federal District and establishes a maximum size of the Federal 
District, 100 square miles. It does not establish a minimum 
size or a location of the Federal District. Congress reduced 
the size of the Federal District by 30 percent in 1846. The 
23rd Amendment allows the Federal District to participate in 
the electoral college but does not establish a minimum size or 
location of the Federal District. Therefore, the bill complies 
with the 23rd Amendment. Nevertheless, the bill would repeal 
the enabling act for the 23rd Amendment, and the 23rd Amendment 
itself would be repealed quickly.
    The Constitution does not establish any prerequisites for 
new States, but Congress generally has considered three: 
population and resources, support for statehood, and commitment 
to democracy. The State of Washington, DC. would meet all 
three. D.C.'s population is larger than the population of two 
States. D.C. pays more Federal taxes per capital--and I will 
repeat that one. The residents I represent pay more taxes per 
capita than any State, and pay more Federal taxes, right now, 
than 21 States.
    D.C. Federal domestic product is larger than 17 States. In 
2016, 86 percent of D.C. residents voted for statehood. D.C. 
residents have been petitioning for voting representation in 
the Congress and local autonomy for all of its 220 years of 
existence, from the moment this became the Capital of the 
United States.
    Congress does have a choice. It can continue to exclude 
D.C. residents from the democratic process, forcing them to 
watch from the sidelines as Congress votes on Federal and D.C. 
laws and to treat them, in the words of Frederick Douglass, as 
``aliens, not citizens, but subjects,'' or it live up to our 
nation's founding principles and pass our D.C. statehood bill.
    Again, Chairman Peters and Senator Carper, thank you for 
your leadership on this bill. I look forward to continuing to 
work with you and your colleagues to enact the D.C. statehood 
bill this Congress. Thank you again.
    Chairman Peters. Congresswoman Holmes Norton, thank you for 
your statement, and again, thank you for your leadership on 
this issue.
    Our second guest is Senator Joe Lieberman, who represented 
Connecticut in the Senate for 24 years. Senator Lieberman 
served as both the Chairman and the Ranking Member of this very 
Committee. In 2012, he helped author the New Columbia 
Admissions Act, the first D.C. statehood bill to be introduced 
in the Senate in nearly 20 years.
    Senator Lieberman, you may proceed with your statement.

 STATEMENT OF THE HONORABLE JOSEPH LIEBERMAN,\1\ FORMER UNITED 
          STATES SENATOR FROM THE STATE OF CONNECTICUT

    Senator Lieberman. Thanks very much, Chairman Peters, 
Ranking Member Portman, and Members of the Committee for 
convening this hearing today and for giving me the honor of 
testifying. Delegate Norton, Mayor Bowser, and other 
distinguished witnesses, it is a pleasure to be with you here.
---------------------------------------------------------------------------
    \1\ The prepared statement of Senator Lieberman appears in the 
Appendix on page 53.
---------------------------------------------------------------------------
    As Senator Carper alluded to, a few years ago, Delegate 
Norton and I were at law school together, and we have not aged 
at all since then. I will point out that we were lucky to go to 
Yale--the mascot at Yale is a bulldog, and I do not think 
anyone would argue with me if I said that Delegate Norton, on 
this particular issue and many others, has had the tenacity of 
a bulldog, occasionally the bark, and, if necessary, the bite. 
It is always good to be on her side.
    A special thank you, talking about tenacity, to Senator 
Carper, my dear friend, for introducing and advocating this 
legislation, which really would right a wrong that has been 
done for too long to the residents of the District of Columbia.
    I am honored, really personally, to have the opportunity to 
return to this Committee, in this room, where I spent so many 
of the best, most productive days of my 24 years in the U.S. 
Senate, in large part because I was privileged to work, in 
bipartisan partnership, with the leading Republicans on the 
Committee during that time, first Fred Thompson of Tennessee, 
and then for more than a decade, Susan Collins of Maine.
    I hope that the spirit of bipartisanship, which has been 
part of this Committee's history, and really has been 
exemplified, I think already this year, by Chairman Peters and 
Ranking Member Portman, will guide your Committee's 
consideration of the deprivation of voting representation in 
Congress for citizens of our Capital City, as you know, as far 
as anyone can tell, the only citizens of any capital of any 
country in the world who are disenfranchised in this way.
    I first introduced legislation on this subject in 2002, 
when some of the current Committee staff members were probably 
in elementary school. It was called the No Taxation Without 
Representation Act, and was, I am pleased to say, reported 
favorably from the Committee but was not acted on by the 
Senate.
    In 2009, a group of us introduced the D.C. House Voting 
Rights Act, which was favorably reported by this Committee and, 
in fact, passed by the Senate, in a vote of 61-37. 
Unfortunately, however, the Senate added an amendment that 
repealed D.C.'s gun control laws, and therefore, the House 
never acted on the legislation.
    In 2012, which was my last year in the Senate, a group of 
us introduced the D.C. statehood legislation, which is very 
much like Senator Carper's initiative that is before you today. 
But Senator Carper has done a much better job than I did. He 
has the largest-ever number of co-sponsors for this 
legislation. It is really a tribute to the cause and to his 
tenacity and advocacy.
    When Senator Carper asked me if I would get involved in 
supporting the current proposal I immediately said yes. The 
truth is, I was very grateful to Tom for giving me the 
opportunity to re-engage in this constitutional cause that has 
mattered to me for a long time. It has mattered to me because 
there are two great American constitutional principles that are 
at the heart of the cause of D.C. statehood and that are 
violated every day in the current treatment of residents of the 
District of Columbia. Both of these principles were central to 
the American Revolution against the British crown.
    The first is that governments should govern only with the 
consent of the governed, not by the whim of the crown or any 
other leader, particularly not a dictator, and that in a great 
democracy, a republic like ours, that consent is given by the 
votes of the citizenry.
    The second, as has been mentioned, a great founding 
principle, is that citizens should not and cannot be taxed 
without representation in the legislative body that taxes them. 
Here, in general, I quote Justice Hugo Black, who wrote in 
Wesberry v. Sanders in 1964, Supreme Court decision, ``No right 
is more precious in a free country than that of having a voice 
in the election of those who make the laws under which we must 
live,'' end quote. Today's residents of the District of 
Columbia, as has been said, have every right to sound the 
battle cry of our revolution, no ``taxation without 
representation''. Greater per capita income tax paid from 
residents of the District, and more, in total, than the 
residents and citizens of 21 other existing States.
    Why would anyone not want to eliminate these grossly 
outdated, un-American inequities? Today, you will hear some 
arguments why from the witnesses who will testify against 
Senator Carper's legislation. I must say, respectfully, that I 
have heard the arguments before many times over the years, and 
I suppose as judges say, I have reached a decision. All the 
arguments seem to me to be legalistic disputations, and 
ultimately excuses for something that is inexcusable. The 
arguments against this legislation do not come near to 
overcoming the great principled constitutional arguments for 
it.
    What is the problem? The media suggests it is not 
constitutional or philosophical but political and partisan, 
that Republicans today fear that granting equal voting 
representation in Congress to D.C. residents will inevitably 
lead to two more Democratic Senators and one more Democratic 
member of the House. I hope that is not the problem, because it 
is self-evidently unacceptable in America to condition the 
enjoyment of constitutional rights on political party 
membership, any more than Congress would condition access to 
constitutional rights on citizens' race or gender or religion 
or sexual orientation. Besides, it is not sensible to base 
one's vote on this legislation, which would correct an 
injustice forever, on a short-range political prediction, 
which, based on history, may well turn out to be baseless, or 
at least temporary.
    Who among us can really predict how the citizens of the 
State of Washington, DC. will vote in elections for their 
representatives in Congress in 50 years, or 20 years, or even 
five years? For example, who would have predicted, five years 
ago, that the State of Georgia would elect two Democratic 
Senators to this Congress? Who could have predicted, 30, 40, 50 
years ago, that there would be almost no Republicans from New 
England, my part of the country, in the Senate today, and 
almost no Democrats from the House, which is obviously why we 
were so surprised by the election of the two Democrats from 
Georgia.
    A look at American history shows that partisan anxieties 
have been common when States have been considered for admission 
to our union since the original 13, but 37 times these 
anxieties were overcome to enable us to become the United 
States of America we are today.
    Here is an example, which I think proves the difficulty of 
deciding this issue, based on political predictions. In 1959, 
Alaska and Hawaii were both seeking admission to our union. 
There was a lot of concern about how the citizens of those 
States would vote. They were essentially both admitted 
together, though there was a separation of a few months, 
because they were expected to balance each other politically. 
Alaska was expected to vote Democratic, and Hawaii was expected 
to vote Republican. That was the bipartisan consensus prophecy 
in 1959.
    I could tell you, in my 24 years in the Senate, and still 
today, the opposite is the case. Hawaii elects Democrats and 
Alaska has elected Republicans. So much for deciding great 
constitutional issues, such as this one, because of passing 
political prognostications. Its not only a weak basis for 
judgment, it is unacceptable in our system of law and equity.
    Mr. Chairman, many times in my 24 years on this Committee 
our Members were able to find bipartisan solutions to difficult 
problems, and then to convince the Senate to agree with those 
solutions, and together we got some great and good things done 
for our country, I am proud to say. I hope you Members of the 
Committee in this session will similarly rise to the challenge 
of this moment and this problem and work together to get 
something good and great done for our country, our 
Constitution, and for the people of our Capital City. Thank you 
very much.
    Chairman Peters. Thank you, Senator Lieberman and 
Congresswoman Holmes Norton for your perspectives on this 
issue. I would now like to invite our witnesses up to their 
chairs and to get settled. As we are making those changes, as 
the witnesses are coming to their seats, I would also like to 
welcome our esteemed guests to stay for the remainder of the 
hearing, if their schedules allow.
    As we set up to move into the next phase of this hearing, I 
hope my colleagues will pause and reflect on the remarks of 
Representative Norton and Senator Lieberman, with their depth 
of knowledge and experience working to provide D.C. residents 
with an equal voice in our democratic process. I think they 
have set the tone for today's very historic hearing. Today's 
hearing is not about political posturing, and it should not be 
predicated on predetermined views. It is simply about providing 
D.C. residents full and equal democratic rights.
    President Eisenhower I think said it best in his 1954 State 
of the Union address, and I quote President Dwight Eisenhower 
when he said, ``In the District of Columbia, the time is long 
overdue for granting national suffrage to its citizens and also 
applying the principle of local self-government to the Nation's 
Capital.'' That was Dwight Eisenhower, and now 67 years later 
those words still ring true. Like folks throughout our Nation, 
my constituents, and I know the constituents of everyone on 
this Committee, deserve a complete voice in government. It is 
long past time for the Senate to pass this act.
    Now that the witnesses have been settled I would like for 
each of the witnesses know that it is the practice of this 
Committee, Homeland Security and Government Affairs (HSGAC), to 
swear in witnesses, so if you will rise and raise your right 
hand. We have witnesses also on video. If you would do the same 
I would appreciate it.
    Do you swear that the testimony you will give before this 
Committee will be the truth, the whole truth, and nothing but 
the truth, so help you, God?
    Ms. Bowser. I do.
    Mr. Morial. I do.
    Mr. Primus. I do.
    Mr. Pilon. I do.
    Mr. Muller. I do.
    Chairman Peters. You may be seated.
    Our first witness is Mayor Muriel Bowser, the eighth Mayor 
of the District of Columbia. In her role, Mayor Bowser serves 
as the District of Columbia's chief executive and functions as 
its Governor, county Executive, and Mayor. You have a lot on 
your plate, Mayor, and it is certainly wonderful to see you 
here before the Committee today, and you may proceed with your 
opening statement.

TESTIMONY OF THE HONORABLE MURIEL E. BOWSER,\1\ MAYOR, DISTRICT 
                          OF COLUMBIA

    Ms. Bowser. Thank you, Chairman Peters, Ranking Member 
Portman, and Members of this esteemed Committee, thank you for 
convening this hearing on S. 51, the Washington, D.C. Admission 
Act, which provides the 700,000 residents of Washington, DC, 
full democracy.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mayor Bowser appears in the Appendix 
on page 57.
---------------------------------------------------------------------------
    I am Muriel Bowser, Mayor of Washington, DC, and I am 
honored to come before this Committee with a simple request: 
Senators, we ask you to right the wrong that occurred some 220 
years ago when the residents of the District of Columbia were 
stripped of their full congressional representation, and we ask 
you to do it now. The Constitution left the issue of democracy 
for residents of the District of Columbia to the Congress. The 
House of Representatives has passed the Washington, D.C. 
Admission Act twice, and the White House has indicated its 
support for the bill through a Statement of Administration 
Policy. Our democracy is truly in the hands of this Senate. It 
is time for the U.S. Senate to support the D.C. petition for 
statehood.
    My testimony today echoes the many arguments that I made 
before the House Committee on Oversight and Reform in March, 
and in September 2019, and some of the same arguments made by 
my predecessor in this very room in 2014. Then, as now, the 
District's call for full democracy has been drowned out by 
arguments that ignore the fact that the second-class status of 
D.C. residents is clearly an anomaly of the U.S. Constitution, 
not a feature of it.
    Over the decades, arguments against D.C. statehood have 
ranged from assertions that are, quite frankly, preposterous, 
to inaccurate legal claims. Just to cite a couple, in 2019, we 
were asked what would happen to the parking spaces for 
congressional staff if the District were to become a State. We 
were at a loss to see how our full democracy should be equated 
to a few parking spaces. This past March, I was confronted with 
concerns that the District could not be a State because it was 
believed that we did not have a car dealership, even though we 
do.
    Statements like these not only discount the civil rights of 
D.C. residents, they also demonstrate a true lack of 
understanding of the rapidly growing and thriving businesses, 
neighborhoods, and culture that surround the small Federal 
presence. It is for those neighborhoods and those people, the 
neighbors of Michigan Park, where I was born and raised, 
Congress Park, and Mount Pleasant, Columbia Heights and 
Hillcrest among them, that make up 99 percent of the District, 
and the people who live in them and who have come to D.C. for 
school, government service, or other work, I appear today to 
represent them.
    There is no legal or constitutional barrier to D.C. 
statehood. The prevailing constitutional issue is the civil 
rights violation of 700,000 D.C. residents who fulfill all 
obligations of U.S. citizenship but are denied any 
representation in this body. We say, and we rely on the 
opinions of 39 legal scholars who have submitted testimony to 
you, unequivocally, that the bill before you, S. 51, the 
Washington, D.C. Admission Act, is constitutional. Dozens of 
America's most recognized constitutional experts have testified 
before Congress and penned letters to that effect. Scholars and 
experts have opined that it is fully within Congress' power, 
under the Constitution, to make D.C. a State through the 
passage of S. 51.
    The Constitution's Admissions Clause grants Congress 
authority to admit States into the union, including Washington, 
DC. Following the 13 colonies, all 37 States were admitted by 
Congress through this constitutional authority. States were not 
added solely because of a particular industry, or the size of 
its land mass. States were added to include the people.
    The Constitution's District Clause poses no barrier to 
admitting D.C. as a State either. The District Clause sets a 
maximum size of 10 square miles for the Federal District, not a 
minimum size. S. 51, of course, retains a Federal District, as 
required by the Constitution. It encompasses the unpopulated 
areas that make up the Federal presence, including all of the 
House and Senate office buildings, the Capitol itself, of 
course, the Supreme Court building, the White House, the 
monuments and museums on the National Mall, and all of the 
Federal buildings and land. The people of America, when they 
come to the Nation's Capital, they will still find all of the 
great monuments and museums that make up their experience, and, 
of course, the free museums of the Smithsonian Institution.
    The 23rd Amendment to the Constitution, which granted D.C. 
residents a vote for President in 1961, does not pose a 
constitutional barrier to statehood either. The bill addresses 
it head on by repealing statutory language that enables the 
appointment of electors, and it includes expedited procedures 
for consideration of the repeal of the unnecessary 
constitutional amendment, thus virtually ensuring quick and 
certain ratification by the States to ensure no ambiguity about 
the electoral. S. 51 outlines a clear path forward on how to 
address the 23rd Amendment. post-D.C.'s admission. It is 
particularly contradictory that the 23rd Amendment, which was 
passed to expand democracy to taxpaying D.C. residents, is now 
being held up as the main barrier to further expanding 
constitutional rights in the District. This flies in the face 
of the amendment's intent.
    Retrocession to Maryland is also not required by the 
Constitution, nor is it addressed in the Constitution. Maryland 
has no claim to the land it ceded to the Federal Government 
when the District was founded. Certainly no one in this body 
would suggest that Maine should retrocede to Massachusetts, or 
that West Virginia should return to Virginia. Of course not.
    To be clear, D.C.'s current status is due to generations of 
inactivity by lawmakers, including the Founding Fathers 
themselves, failing to address the contradiction that D.C. 
residents of the U.S. Capitol are treated as second-class 
citizens. With no constitutional underpinning, the 
disenfranchisement of Washingtonians is a glaring civil rights 
and voting rights issue of our time. In fact, we are the only 
capital city, as has been stated, in the world's democracies, 
without voting rights in the national legislature.
    In two weeks, the country will celebrate our Independence 
Day and the establishment of the United States as a sovereign 
nation, free from ``taxation without representation''. Yet the 
700,000 predominately Black and Brown residents of Washington, 
DC. continued to pay taxes without representation for over 200 
years.
    As we celebrate our nationhood, I appeal to this Senate to 
end the ongoing systemic injustice faced by the growing 
population in D.C. and vote for statehood in the 117th 
Congress. We cannot emphasize enough the civil rights and full 
democracy of D.C. residents is in your hands.
    We are 700,000 people, some born here, others from all 50 
States and the many nations of the world. We are Washingtonians 
who serve proudly in our military and fight for our country, 
and we are 30,000 veterans of our Armed Forces.
    We are Washingtonians. We have served on the front line as 
essential workers during this pandemic--doctors, nurses, 
firefighters, schoolteachers--and yet we have no say in this 
Senate.
    We are Washingtonians who heroically defended our Nation's 
Capital during the January 6th insurrection by answering the 
call to support our Federal partners, despite not having any 
representation in this Senate.
    We are Washingtonians. We do not have any say when this 
Senate considers Presidential nominations, Supreme Court 
justices, and large investments like the Coronavirus Aid, 
Relief, and Economic Security (CARES) Act or the American Jobs 
Plan.
    I ask you today to treat D.C. residents the same as all 
taxpaying American. Your inaction could doom yet another 
generation of Washingtonians to being locked out of their 
constitutional power and human rights. Will this body 
perpetuate this civil rights and voting rights wrong? By what 
authority would this body continue to have Washingtonians pay 
Federal income taxes without a voice?
    Today, I am asking this U.S. Senate usher in a new age of 
fairness and equality for D.C. residents.
    One thing I know about D.C. residents is that they have 
been fighting for this for 220 years. We will not quit until we 
achieve full democracy, and our two Senators are seated here 
with you. D.C. residents are not standing alone. Over the years 
we have garnered the support of Americans of all stripes and 
beliefs: the bipartisan United States Conference of Mayors, for 
example, representing millions of Americans in big cities and 
small towns; the nonpartisan League of Women Voters (LWV) who, 
for 100 years have fought to defend our democracy; the National 
Association for the Advancement of Colored People (NAACP); the 
Human Rights Campaign (HRC); and the Leadership Conference on 
Civil and Human Rights (LCCHR), who recognize D.C. statehood 
for the civil and human rights contradiction that it is; to 
your former colleague and Independent Senator Joe Lieberman 
whose focus on justice and fairness makes plain why partisan 
considerations have absolutely nothing to do with the quest of 
D.C. citizens for full democracy and absolutely no place in 
ensuring that S. 51 moves forward in the 117th Congress.
    Finally, Chairman, together, with leaders from across 
America, we know that we will keep pushing until D.C.'s tragic 
disenfranchisement is rectified. You have the power to make two 
things happen that I see so clearly in my mind's eye and feel 
so deeply in my heart and soul. With your courageous leadership 
and clear-eyed focus on fairness and perfecting our union 
today, this session, this Congress, you will vote to admit D.C. 
into our great American union. Second, and prayerfully, I will 
be the last D.C. Mayor who needs to sit here demanding, on 
behalf of our 700,000 residents, what is our birthright, and 
what is owed to us as taxpayers, and that is full citizenship 
and democracy.
    Thank you, Mr. Chairman, and thank you, Senators, and we 
are happy to take your questions.
    Chairman Peters. Thank you, Mayor, for your opening 
statement.
    Our next witness is Marc Morial, President and Chief 
Executive Officer (CEO) of the National Urban League (NUL), the 
nation's largest historic civil rights and urban advocacy 
organization. Mr. Morial previously served as mayor of New 
Orleans, a Louisiana State senator, and was the president of 
the U.S. Conference of Mayors.
    Welcome, Mr. Morial. You may proceed with your opening 
comments.

  TESTIMONY OF THE HONORABLE MARC H. MORIAL,\1\ PRESIDENT AND 
         CHIEF EXECUTIVE OFFICER, NATIONAL URBAN LEAGUE

    Mr. Morial. Chairman Peters, Ranking Member Portman, and 
Members of the Committee, I want to thank you for the 
opportunity to testify on the Washington, D.C. Admission Act. 
As Chairman Peters indicated, I am Marc Morial. I am President 
and CEO of the National Urban League. In addition to serving as 
mayor of New Orleans and a Louisiana State legislator, I am 
also a former Senate staffer, having served for the late 
Russell B. Long of Louisiana in the 1980s.
---------------------------------------------------------------------------
     The prepared statement of Mr. Morial appears in the Appendix on 
page 70.
---------------------------------------------------------------------------
    I also am proud to say that Congresswoman Norton taught me 
both civil rights and constitutional law when I was a student 
at Georgetown University Law Center and a resident of the 
District of Columbia, from 1980 to 1983, and I thank her, Mayor 
Bowser, and Senator Lieberman for their testimony and their 
leadership on this important issue.
    We, the National Urban League, were founded in 1910, and we 
have served the District of Columbia through both the Greater 
Washington Urban League, since 1938, and the Washington, D.C. 
Bureau of the National Urban League, since 1962. On behalf of 
all of our members and supporters across the Nation, I urge the 
Senate to pass this legislation to remedy the 
disenfranchisement of nearly 700,000 Americans.
    Throughout my career as a voting rights activist, a civil 
rights lawyer, and an elected official, I have had a 
longstanding passion in the D.C. statehood movement. While in 
law school in Washington, I grew to know and love this 
community and made the city my second home. From 2006 to 2010, 
I served on the D.C. Statehood Commission, where we pushed for 
D.C. statehood and statutory representation.
    Despite the progress we have made in the fight against 
disenfranchisement over the 200-plus years, D.C. residents have 
been pushed to the sidelines as spectators, and continue to be 
deprived of full representation. They are unable to bring 
grievances to influential Federal officials, reap the benefits 
available to other congressional constituents, or have a say in 
the important issues of war and peace that confront this 
Nation.
    As a civil and human rights services organization, the 
National Urban League is in a unique position to see how this 
lack of representation acutely impacts D.C. residents during 
the Coronavirus Disease 2019 (COVID-19) pandemic. D.C. 
residents were in dire need of the relief afforded under the 
CARES Act. However, they did not have congressional 
representation that could offer amendments to, or vote on the 
final bill, and D.C. was originally denied some $755 million in 
critical funding that it needed to provide direct relief to its 
residents.
    Last summer, D.C. residents took to the streets to exercise 
their First Amendment rights to peacefully protest racial 
injustice and police brutality. In response, the then 
administration gave orders to the National Guard and Federal 
law enforcement to carry out a disproportionate and 
inappropriate response in the interest of a photo op.
    The same administration refused to call in the National 
Guard in response to a violent attack on the U.S. Capitol on 
January 6th, until much of the damage had already been done. In 
both cases, D.C. officials were absolutely powerless to respond 
to critical events that were happening to their own people, 
because the District did not have statehood and the critical 
safety mechanisms that statehood provides.
    D.C. residents are not able to hold elected representatives 
accountable for these horrors. There was no D.C. elected 
congressional representative to vote to establish the 
Independent January 6th Commission to investigate the attack on 
the U.S. Capitol or the George Floyd Justice in Policing Act, 
which would put in place critical policing reforms.
    We are at a unique juncture in American history, where we 
can create laws that reflect our democratic values and 
principles and ensure that the fundamental right to vote, which 
is a foundation of all rights, can be exercised by all American 
citizens. We cannot let this moment pass. It is time to enact 
the Washington D.C. Admission Act.
    I want to thank Senator Carper for calling attention to 
this issue by introducing the Washington D.C. Admission Act in 
the Senate, and I applaud all of the testimony herein. This is 
an injustice. This is a denial of voting rights. This is 
something that should be remedied now.
    I urge this committee to stand up for American values and 
for democratic principles and pass the D.C. statehood bill. 
Thank you so much.
    Chairman Peters. Thank you, Mr. Morial, for your opening 
statement.
    Our next witness is Richard Primus, the Theodore J. St. 
Antoine Collegiate Professor of Law at the University of 
Michigan Law School. Go Blue. Professor Primus is an expert in 
congressional law. He is the recipient of the first-ever 
Guggenheim Fellowship in Constitutional Studies for his work on 
the relationship between history and constitutional 
interpretation. He also clerked for the late Justice Ruth Bader 
Ginsburg on the Supreme Court.
    Professor Primus, welcome. You may proceed with your 
opening comment.

   TESTIMONY OF RICHARD PRIMUS, D.PHIL.,\1\ THEODORE J. ST. 
ANTOINE COLLEGIATE PROFESSOR OF LAW, UNIVERSITY OF MICHIGAN LAW 
                             SCHOOL

    Mr. Primus. Chairman Peters, Ranking Member Portman, 
Members of the Committee, my name, as the Chairman says, is 
Richard Primus. I am the Theodore J. St. Antoine College 
Professor at the University of Michigan Law School. I am 
honored by your request that I participate in today's 
proceedings. I want to recognize Chairman Peters as my own 
Senator and Ranking Member Portman as a distinguished graduate 
of the law school where I teach, and I thank the Michigan law 
students who helped me prepare: Ruby Emberling, Savannah Brice, 
Rob Loteman, Thomas Quillen, and Tyler Washington.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Primus appears in the Appendix on 
page 75.
---------------------------------------------------------------------------
    The constitutionality of S. 51 is straightforward. The 
Admission Clause, or Article IV, Section 3, empowers Congress 
to admit new States subject only to the limitation that 
Congress cannot unilaterally reconfigure existing States. S. 51 
would not reconfigure any existing State. It would simply take 
an American territory that is not currently a State and make it 
one. This exactly what the Admission Clause empowers Congress 
to do.
    Some say that this admission would require a constitutional 
amendment, but the Constitution does not say that. The 
Constitution gives the power to admit new States to Congress, 
not jointly to Congress and the State legislatures by way of 
constitutional amendment.
    Still, some Americans have the intuition that something 
would be constitutionally amiss about making most of what we 
know as Washington, D.C. into a State, and that intuition, 
which I think many people hold on a good-faith basis is based 
on our knowledge that the Founding generation did not intend 
Washington, D.C. to be a State. It is true. The Founding 
generation did not intend Washington, D.C. to be a State. But 
the Founding generation also did not intend to create a 
situation in which 700,000 Americans would have no voting 
representation in Congress. For the Founders, no principle was 
more central to the Constitution than representative 
government. At their time there was no conflict between that 
principle and the non-state status of Washington, D.C, because 
virtually nobody lived in Washington, D.C, but today it is a 
conflict.
    The number of registered voters in D.C. today is larger 
than the entire number of voters who participated in all of the 
elections, of all of the conventions that ratified the 
Constitution, in all 13 original States put together. On any 
constitutional vision that takes representative government 
seriously, that is a serious problem, and given the importance 
that the Founders attached to representative government, it 
would be strange to conclude that their vision requires us to 
maintain a situation in which so many American citizens lack 
representation.
    Unfortunately, it doesn't. The Constitution they adopted 
gives Congress a tool for solving the problem. That tool is the 
power to admit new States and give representation for Americans 
who currently lack it. S. 51 is not at odds with the Founders' 
vision. On the contrary. S. 51 helps fulfill what is most 
important in that vision.
    Before I close, I should say a word about the ideas 
expressed in the testimony of two witnesses with whom I have 
the honor to share this meeting, Professor Derek Muller and Dr. 
Roger Pilon. Professor Muller cautions that S. 51 could cause 
confusion at the next Presidential election, given the 23rd 
Amendment. I agree with Professor Muller that the best solution 
is to repeal the 23rd Amendment and that the second-best 
solution is for Congress to ensure, by statute, that the seat 
of government does not appoint rogue electors, and read S. 51 
to accomplish the latter solution by removing any electors that 
might be appointed for the seat of government from the 
electoral count. In my written testimony, I offer suggestions 
for what Congress could do if it wants to improve on that 
solution, but the existing solution is adequate.
    Professor Muller rads the statutes differently, but the key 
point is this. Professor Muller and I agree that even if his 
reading were correct, S. 51 would be constitutional, and 
Congress could solve any confusions rising from the 23rd 
Amendment statutorily. In other words, he and I agree that 
nothing about the 23rd Amendment makes S. 51 unconstitutional.
    In my limited time, I will address one of Dr. Pilon's 
arguments that contention to S. 51 would require the consent of 
the Maryland legislature. The idea is that Maryland gave what 
is now Washington, D.C, to the United States to be used as the 
seat of government, not so that one day it could be a State of 
its own. In my own view, this is the strongest of Dr. Pilon's 
arguments, and Ranking Member Portman picked up on it in his 
spoken remarks.
    But there is a difference between giving a gift for a 
reason and giving a gift on condition, and I am happy to 
discuss the distinction further, if it is helpful. But in 
short, if Maryland had ceded lands to the United States and 
specified that the cession was valid only so long as the land 
were used in a certain way, there might be a problem with S. 
51. But Maryland's cession has specified no such condition. 
Washington, D.C., belongs to the United States. Maryland has no 
greater claim on it than the rest of America does.
    I thank the Committee for its attention and I will be happy 
to address any questions.
    Chairman Peters. Thank you, Mr. Primus.
    Our next witness is Roger Pilon, Vice President for Legal 
Affairs and the B. Kenneth Simon Chair in Constitutional 
Studies at the Cato Institute. Mr. Pilon is a policy scholar at 
the Cato Institute and is the Chair of the Constitutional 
Studies program.
    Welcome, Mr. Pilon. Please proceed with your opening 
statement.

 TESTIMONY OF ROGER PILON, PH.D.,\1\ VICE PRESIDENT FOR LEGAL 
                  AFFAIRS, THE CATO INSTITUTE

    Mr. Pilon. Thank you.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Pilon appears in the Appendix on 
page 88.
---------------------------------------------------------------------------
    Chairman Peters, Ranking Member Portman, thank you for 
inviting me to testify on the D.C. Admissions Act. S. 51 raises 
both Constitution and practical problems. That has been the 
conclusion of every Department of Justice (DOJ) that has 
considered related issues since the time of Attorney General 
(AG) Robert Kennedy. To summarize my written statement here, in 
which the points I make here are much more fully discussed in 
written statement. I will simply touch on four issues: 
congressional authority, Maryland's consent, practical 
problems, and most important, 23rd Amendment.
    Congress certainly has authority to admit new States to the 
union. It has done so 37 times under Article IV, Section 3, 
either with consent of the State from which the new State was 
created or, more often, from Federal territory acquired in 
clear contemplation of creating States from it, like the 
Northwest Territory.
    But this is not a normal admissions case. The District of 
Columbia is unique. Our first Congress created it not under 
Article IV but under Article I's Enclave Clause for the express 
purpose of it becoming the seat of the new government. It has 
been that well over 200 years. Given that history, there is a 
strong presumption by now against this bill's radical change. 
The framers certainly did not intend anything like this.
    Second, Maryland ceded the land for the express purpose of 
it becoming the seat of the Federal Government. It did not do 
so for the purpose of creating a new State on its border, nor 
is it likely that it would have done so for that purpose. 
Contrary to the bill's proponents, Article IV alone requires 
Maryland's consent.
    Third, as a practical matter, this bill strips Congress of 
its authority over the present district. Congress will then 
have authority over this tiny enclave around the National Mall, 
and that raises numerous practical problems. As James Madison 
explained, the Federal Government must not be dependent on any 
one of the States, nor should any State be either dependent or 
excessively influential on the Federal Government. This bill 
fails on each of those counts.
    Finally, and most important, the 23rd Amendment granting 
the District three electoral college votes, would need to be 
repealed, because there will still be residents in this tiny 
enclave, including the First Family, and they will have 
outsized influence on Presidential elections, yet their votes 
cannot be taken away by mere statute. It is going to take an 
amendment. Proponents seem to understand this. Indeed, their 
bill provides for expedited procedures for repealing the 23rd 
Amendment, but that is a long shot, given the ratification 
hurdles. The bill also provides for repealing the statute that 
enables residents to vote.
    That would extinguish the residents' right to vote, of 
course, so there is a problem here, and not even the 39 
scholars who wrote to Congress recently to support this bill 
are able to agree about how to resolve it. One camp reads the 
23rd Amendment as self-enforcing and therefore as mandating the 
appointment of electors. The other reads it as requiring 
enabling legislation, so without that there is no way for the 
residents to vote, and that camp seems perfectly happy with 
that result.
    But even if the self-enforcement camp prevailed and the 
District had to appoint electors in such manner as the Congress 
made direct, as the amendment reads, both camps claim that 
Congress could replace the current law. That law orders 
electors to vote in accordance with the District's popular 
vote.
    The scholars believe that Congress could order electors to 
vote for the ticket that got the most electoral college votes 
nationwide, for example, or for the ticket that won the 
national popular vote. In other words, the scholars read manner 
as referring not simply to procedures needed to execute voting 
but to legislation allowing Congress to direct electors now to 
vote.
    The current statute does that, of course, but the way it 
does it is perfectly consistent with the whole point of the 
23rd Amendment, namely to enable District voters to choose 
electors pledged to their preferred ticket. Congress certainly 
cannot direct voters how to vote, but neither could Congress 
direct electors how to vote, except as consistent with the 
popular vote, in the jurisdiction. Otherwise, the amendment 
would amount to nothing. Yet that is precisely what the 
scholars' examples come to.
    Thus, if District voters went overwhelmingly for electors 
pledged to the Democrat ticket, while in the rest of the 
country the Republican ticket got the most electoral college 
votes, or won the national popular vote, the District's voters 
would effectively count for nothing, because the electors they 
voted for would be required to ignore how they voted. That 
would surely raise constitutional issues.
    In short, I do not see how this bill, if enacted, can 
overcome the constitutional and practical challenges 22 State 
attorneys general have promised it is going to face. Thank you.
    Chairman Peters. Thank you, Mr. Pilon. Our final witness is 
Derek T. Muller, a Professor of Law at the University of Iowa 
College of Law. Mr. Muller focuses on election law, Federal 
courts, civil procedure, administrative law and evidence. His 
research concentrates on the role of State and the 
administration of Federal election.
    Professor Muller, welcome to the Committee. You may proceed 
with your opening comments.

 TESTIMONY OF DEREK T. MULLER,\1\ PROFESSOR OF LAW, UNIVERSITY 
                     OF IOWA COLLEGE OF LAW

    Mr. Muller. Thank you, Chairman Peters, Ranking Member 
Portman, Members of the Committee. I appreciate the kind 
invitation to testify here today. I am a Professor of Law at 
the University of Iowa College of Law, as mentioned. I teach 
election law and Federal courts, and today I am here to talk 
about four points on voting issues relating to the District. 
These are not abstract questions about statehood. These are 
practical problems related to S. 51 as it presently exists.
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    \1\ The prepared statement of Mr. Muller appears in the Appendix on 
page 96.
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    First, the 23rd Amendment guarantees that the new District 
would have three electoral votes, no matter how few people 
reside in it. While most of the District of Columbia would 
become a State, under S. 51 the new seat of government would be 
known as ``Capital,'' and Capital would be entitled to three 
electoral votes. The boundaries of Capital roughly map onto a 
census tract. That tract had 33 inhabitants in the 2010 census, 
and 58 in the 2019 survey. A tiny group of prospective voters, 
potentially including the President and family, who happen to 
reside here, now have three electoral votes.
    Second, S. 51 does not adequately address the 23rd 
Amendment and related voting issues. To start, there is no 
guarantee of repeal of the 23rd Amendment. The bill simply 
hopes it will happen. If there is a legal controversy about 
whether the District could become a State, everyone has an 
incentive to wait and see the legal process play out. If 
statehood is unconstitutional, as found by a Federal court, I 
assume District residents would prefer to retain the 23rd 
Amendment rather than see it repealed.
    Amending the Constitution is a hard thing to do. It has 
been done once in the last 50 years. We have had a lull period 
of amending the Constitution, and we should not simply wish for 
future events to occur.
    Additionally, Section 223 of the act is misleading. It is 
entitled ``Repeal of law providing for participation of seat of 
government in election of President and Vice President.'' But 
in my judgment this does not ``repeal'' the law providing for 
participation'' in the Presidential election, which is 
currently codified in the D.C. Code and would continue to be in 
force after S. 51 was enacted. Instead, it repeals 3. U.S.C. 
Section 21, a provision enacted to clarify the Electoral Count 
Act about the timing, transmission, and counting of electoral 
votes, not the District's participation in a Presidential 
election.
    Finally, Section 221 of the bill may be unconstitutional. 
It compels States to permit absent Capital voters, eligible 
voters in Capital who had previously domiciled in another 
State, to register in their former States and request absentee 
ballots for Federal elections, but States have the broad power 
of the qualifications of their voters, including reasonable 
citizenship, age, and residency requirements.
    Congress' power to dictate voter qualifications for those 
who moved out of a State years ago is deeply contested. If this 
section is successfully contested in court, a related provision 
in Federal law that entitles tens of thousands of military and 
overseas voters access to the ballot may well be in peril.
    Third, statehood for the District of Columbia should be 
conditioned on repeal of the 23rd Amendment. An amendment might 
condition repeal in the event that the District falls below a 
certain population threshold. If the bulk of the present 
District of Columbia becomes a State or is retroceded, the 23rd 
Amendment would simply cease to apply.
    Fourth, potential alternative statutory solutions present 
legal and practical problems. None of these solutions that I 
describe are present in S. 51. They are the stuff of conjecture 
at the moment. If Congress decided not to appoint any electors 
at all, by, say, repealing the relevant provisions of the D.C. 
Code, Congress would be derelict in its duty. The Supreme Court 
has repeatedly noted that in the context of elections the word 
``shall'' places a duty. The Constitution provides, in the 23rd 
Amendment, the District shall appoint electors.
    Congress might enact a law awarding Capital's electors to 
the winner of the electoral college or to the winner of the 
national popular vote, but the 23rd Amendment provides that the 
District shall appoint and Congress may direct the manner. The 
first clause is the ``who.'' The second clause is the ``how.'' 
If Congress chooses a manner to award electors based on what 
happens in the rest of the United States, it is hard to say 
that the District has appointed anyone. Selection must occur 
within a place, not outside it.
    Awarding Capital's electors to the winner of the national 
popular vote suffers too. How does Congress determine the 
national popular vote? How does it handle litigation and 
recounts? Voter eligibility rules vary from State to State. 
Voting procedures vary. Different candidates appear on the 
ballot in different States. While some variation in election 
procedures is inevitable, it may well violate the Equal 
Protection Clause, and it certainly presents significant 
practical problems.
    In one sense my testimony is modest. It does not weigh in 
on the merits of constitutionality of statehood. It is 
addressed simply at the practicalities of S. 51, what it would 
do and what might happen if it were enacted. It only addresses 
practical voting rights problems, but these problems are 
serious and vexing, that in my judgment the present bill is 
inadequate to address.
    Thank you for the opportunity to testify. I look forward to 
answering your questions.
    Chairman Peters. Thank you, Mr. Muller, for your testimony 
here today.
    As we sit here and meet at this hearing the U.S. Senate, we 
are within a city outside these grounds that is populated by 
over 700,000 Americans who simply do not have equal 
representation or an equal voice in this Congress.
    Mr. Morial, as President and CEO of the National Urban 
League, you lead an organization that is dedicated to achieving 
equal rights. Would you explain to this Committee how D.C. 
statehood further our democratic promise of equal 
representation and how ensuring D.C. very diverse population 
has a voice in Congress is part of the American Civil Rights 
Movement.
    Mr. Morial. Thank you very much, Chairman Peters. It is 
axiomatic that the right to vote is fundamental to American 
democracy. Think of what we have here--700,000 American 
citizens who comply with our laws, pay Federal taxes, 
participate in our society, are the only who do not have the 
right to vote in Federal elections in a way that counts, and, 
of course, excluding territories. That robs the residents of 
the District of Columbia a voice in many critical decisions--
war and peace, taxation, regulation, distribution of proceeds, 
and I could continue to list it. It is so basic.
    We fought, as a Nation, in the 20th Century to expand the 
right to vote, first to women with the passage of the 
Nineteenth Amendment, to African Americans, with the enactment 
of the Voting Rights Act, which made real the promise of the 
Fourteenth and Fifteenth Amendments, with the constitutional 
ban on poll taxes. In every single instance, this is one of the 
last pieces of that, I think, important shift in how we govern 
this Nation.
    For us, at the National Urban League, nothing is more 
fundamental than the right to vote, the ability to choose a 
member of the House, who has a vote on the floor of the House, 
to choose two members of the U.S. Senate, who have a say in all 
of the important proceedings.
    I might add that right now Federal judges and superior 
court judges are appointed by the President of the United 
States and ratified, or rather confirmed by the Senate with no 
voice by the members of the District of Columbia, by the 
residents of the District of Columbia, and any choice for U.S. 
Attorney, for district court judge, for appellate court judge, 
or even the court that deals with, if you will, the counterpart 
to State laws in the District of Columbia, the superior court. 
No voice by the residents of the District of Columbia. This is 
an injustice, and all of the legalistic arguments do not 
address the fundamental basic issue, and that is the right to 
vote.
    I think I speak for the broad civil rights community and 
for the voting rights community in saying that this is a long 
battle whose time has come. It is time to enact this bill.
    Chairman Peters. Thank you. Our country was founded on the 
principle of no ``taxation without representation'', the key 
part of what inspired the Revolutionary War. But the reality 
for D.C. residents is that unlike any other citizen of this 
country they pay taxes, Federal taxes, without having full 
representation in Congress. In fact, residents of the District 
of Columbia currently pay more than $6.9 billion annually 
Federal income taxes. That is more than residents in over 20 
States, and it means D.C. residents pay more per return in 
Federal income tax than residents of any other State.
    Mayor Bowser, under the status quo, in your mind, is it 
fair that D.C. residents are paying billions of dollars in 
taxes every year to the Federal Government and yet have no say 
in how that taxpayer money is being spent?
    Ms. Bowser. It is absolutely unfair, Mr. Chairman, and you 
laid it out perfectly. It is a question of fairness and it is a 
question for us of what we are entitled to as American citizens 
and taxpayers. What we have spent, many years, making sure that 
everybody recognizes is that the residents of the District of 
Columbia, we pay our own way. We run our own government. We are 
a State, a city, and a county all at once. It is very important 
that a jurisdiction as well run as ours, a jurisdiction that 
has built its population, its tax base, has built a AAA bond 
rating on Wall Street, have full representation in the 
Congress, but also that we have full autonomy over our 
decisions.
    Chairman Peters. Thank you, Mayor, for that response. I 
need to step out and be on the floor of the Senate, and so I am 
going to turn over the gavel to Senator Carper. But I will now 
recognize Senator Johnson. I know Ranking Member Portman had to 
step away. He has yielded his time to you, Senator Johnson. You 
may proceed with your questions.
    Ms. Bowser. Thank you, Mr. Chairman.

              OPENING STATEMENT OF SENATOR JOHNSON

    Senator Johnson. Thank you, Mr. Chairman. We have heard 
approximately about an hour of testimony, opening statements in 
favor of D.C. statehood, and about 15 minutes of the 
counterargument there, which I found quite convincing, the 
complexities of it, the difficult nature of the Constitution, 
as well as the statutes.
    A number of times I have heard that something is not 
constitutional about this, that there are constitutional rights 
being violated. Yet the Constitution set up the District, 
specifically.
    Mr. Pilon, can you talk about what the Founders had in mind 
and why they set the District apart separate from the type of 
statehood that we have in the rest of the country?
    Mr. Pilon. I would be delighted to do, Senator Johnson, and 
the argument can be found in Federalist 43\1\, by James 
Madison, in which interdependency and the problem it poses runs 
throughout the arrangements that were set forth, to create a 
separate District of Columbia such that the Federal Government 
would not be seated in any one of the particular States.
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    \1\ The Federalist 43 papers appear in the Appendix on page 148.
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    They had experience with that in 1783, under the Articles 
of Confederation, where the then Continental Congress was 
meeting in Philadelphia at the time. They were confronted with 
a job that sought to storm the Constitutional Hall, and indeed 
were forced to fleet because the local government would not 
take measures to prevent that mob from doing so. That was 
clearly on their mind when they drafted the Constitution's 
Enclave Clause, which provides for a District no larger than 10 
miles square, not 10 square miles. There is a difference 
between the two.
    Senator Johnson. There is obviously a conflict between a 
central Federal Government versus the sovereign States. Those 
individuals that are within the District obviously have a 
vested interest in a very powerful Federal Government. Correct?
    Mr. Pilon. Yes.
    Senator Johnson. Which is counter to the power vested in 
the States, that the States want to maintain their sovereign 
power. Correct?
    Mr. Pilon. Yes.
    Senator Johnson. From my standpoint--and again, we can talk 
about the constitutionality, we can talk about the complexities 
with the statutes and how to deal with the 23rd Amendment--to 
me this seems like a naked power grab.
    I thought it was interesting, Senator Lieberman talked 
about that nobody can predict how the District would vote. I 
think you can predict quite handily. He cited Alaska and 
Hawaii's examples of what people thought, how they thought they 
would vote has completely flipped, but I do not think either 
Hawaii or Alaska had these types of voting histories.
    In 2020, 92.2 percent of D.C. votes went to the Democratic 
candidate, 5.4 percent went to the Republican candidate. In the 
last eight elections, no Republican candidate has gotten more 
than 10 percent of the vote. That is over 28 years. Again, I 
would argue that certainly has something to do with the vested 
interest of the people here in D.C. who--there is certainly 
poverty here, but this District is not made of many 
disadvantaged individuals, because the average median income of 
the District of Columbia is $92,000. That compares to the 
average median income nationally of $65,000.
    Thirty-four percent of the residents of the District of 
Columbia that are 25 years or older have some kind of post-
graduate or professional degree, versus 13 percent of the rest 
of the population. This is an elite group of people here. They 
have a vested interest in the power of the Federal Government, 
and I think that is one of the issues that we need to address 
when we are talking about whether we should grant statehood to 
the District of Columbia.
    Professor Muller, would you agree with that, or what would 
your comments be on that?
    Mr. Muller. I think statehood is a question of 
representation and a question of the kinds of issues that the 
Members of this Committee are debating, to determine whether or 
not it should look like the present form, whether it should 
look like statehood, whether it should look like retrocession. 
It is certainly the kind of thing that should be considered.
    Senator Johnson. In the end, people choose to live here, as 
well.
    Madam Mayor, I cannot let this opportunity pass, as long as 
you are here testifying before the Committee, to talk about 
what I consider an important constitutional issue, which is the 
equal administration of justice. Just a couple of questions in 
terms of how the District has handled people who have rioted in 
the summer versus people who breached the Capitol. I condemn 
both equally. Have you seen any information in terms of 
insurance claims of how much property damage, was done during 
the summer rioting? Do you have a figure on that, because we 
know nationally those riots, close to $2 billion in insurance 
claims.
    Ms. Bowser. Thank you, Senator, for your interest in the 
District, but I have to address your question first by talking 
about the residents of D.C., 700,000 people, hard-working 
individuals, who educate their children, start businesses, and 
work in the District. It would be incorrect to say that D.C. 
residents have more of an interest in the Federal Government 
than other Americans. We know that we have----
    Senator Johnson. Again, that is not the question.
    Ms. Bowser [continuing]. All over----
    Senator Johnson. That is not the question I asked you, so 
could you answer the question? Do you have a property damage 
estimate from the summer riots?
    Ms. Bowser. I am glad to hear you say that you are opposed 
to riotous behavior, whether it happen on 16th Street or here 
at the Capitol.
    Senator Johnson. Madam Mayor, could you answer the 
question? Do you have an estimate of the property damage during 
the summer riots?
    Ms. Bowser. I know that we had one night of rioting in the 
District----
    Senator Johnson. Do you know how many people were arrested 
for the summer riots?
    Ms. Bowser. We have had dozens of people arrested over the 
last year.
    Senator Johnson. How many are still being detained?
    Ms. Bowser. I do not know. I do not know the answer to 
that.
    Senator Johnson. Do you know whether, by using geolocation, 
did we go and arrest people who participated in the summer 
riots in their individual States, like we did with the January 
6th breachers?
    Ms. Bowser. If you are asking about how the Federal Bureau 
of Investigations (FBI) operates you will have to address those 
questions to them. I can speak for the Metropolitan Police 
Department (MPD), and we do not permit any riotous behavior, 
whoever is conducting it. We have made arrests in both cases, 
in cases where we had riotous behavior, and that is a specific 
behavior, here, on the Congress' grounds, and on city streets.
    Senator Johnson. OK. My final point is I know the members 
of the House of Representatives have written a letter to you 
inquiring about the conditions in the D.C. jail, which people 
are being held basically the entire population in some form of 
solitary confinement. When you respond to their letters I would 
like you to send me the same response.
    Ms. Bowser. Senator, you are aware that our criminal 
justice system is also unique in the American system, that our 
Metropolitan Police Department makes arrests, but all arrestees 
are processed through a Federal system, through the courts who 
have federally appointed judges, a pretrial system that is 
Federal as well.
    We operate a D.C. jail, and if there are any concerns about 
conditions at the jail I will address them.
    Senator Johnson. There are, and again, I just ask you to 
respond to me when responding to the House members who are 
asking about the conditions of solitary confinement.
    Ms. Bowser. Yes. Having control of our criminal justice 
system is a driving force behind why we need statehood. 
Certainly we have talked about representation, but being able 
to enforce our own laws is important to how we operate our 
jurisdiction.
    Senator Johnson. OK. Thank you, Mr. Chairman.
    Senator Carper [Presiding.] Thank you, Senator Johnson.
    To our witnesses, let me just note that the Members of the 
Committee will have the opportunity and the right to submit 
questions for the record, and if they exercise that right then 
we would appreciate very much your timely response.
    Again, we thank all of you for joining us today to testify 
and presenting your points of view. I am going to ask, if I 
can, for Dr. Primus, if you don't mind I would like for you to 
reflect on what we have heard today from Dr. Pilon and from Mr. 
Muller, and to ask is there anything that you have heard from 
either of these witnesses, anything you would like to comment 
on, please? Thanks.
    Mr. Primus. Sure, and it is a privilege to share the 
hearing with both of them. They are both people who think a lot 
about these issues.
    The first point I would note is that there is something a 
little bit curious about the contention that we have heard from 
Professor Muller that we should not count on the ability to 
repeal the 23rd Amendment. It is true the repeal does not 
happen by itself, but here is what I want to point out to the 
Committee in a very big-picture way.
    Many members of the U.S. Senate are committed to a theory 
of constitutional interpretation that usually goes by the name 
of originalism. It is the theory that is usually associated 
with late Justice Scalia. One of its very basic premises is 
that the Constitution's original leanings are binding because 
if we do not like what it means we can change it. That is, the 
whole theory is premised on the idea that the Constitution can 
be amended whenever we want.
    To take the view that the 23rd Amendment could not be 
amended, that it is very unrealistic to think that would 
happen, even though the 23rd Amendment would be ultimately 
pointless--nobody would really want it around if S. 51 were to 
be adopted--is essentially to say that the theory of 
originalism associated with Justice Scalia is all wrong, is a 
fable. I do not think that is a position that everyone who is a 
member of the U.S. Senate wants to endorse.
    I should also say, briefly, to Dr. Pilon's comment. I am 
sorry?
    Senator Carper. Thank you. I was listening to something 
that colleague, Senator Johnson said. Go ahead. Anything else 
you wanted to say on this point?
    Mr. Primus. Just very briefly, Dr. Pilon says that there is 
disagreement among the scholars who wrote in to support the 
constitutionality of this bill about the best way to solve the 
complications arising from the 23rd Amendment. It is true that 
there is disagreement about what the best way to solve the 
problem is. That is because there are many possible solutions, 
and as among many adequate possible solutions, not everyone 
agrees on what the best solution is, but everyone agrees that 
the problems are solvable. Mr. Muller agrees about this. I 
agree with this also. I could, if the Committee wanted to, 
speak about specific details of complexities that are raised 
and why there are actually not problems, or solvable, but we 
all agree that all of these problems are solvable, and none of 
them should be an obstacle to S. 51.
    Senator Carper. Dr. Primus, thank you very much for that 
response. As you mentioned in your testimony, some people 
believe that the District of Columbia can only become a State 
through constitutional amendment. My bill, a bill that many of 
our colleagues have co-sponsored, as well as the nearly 40 
constitutional law experts who recently signed a letter of 
support, believe otherwise.
    Professor Primus, I am going to ask you a series of brief 
questions, if you do not mind. The first of those is, how many 
of the 37 States admitted into the union after the original 13 
colonies were done so by a constitutional amendment?
    Mr. Primus. None.
    Senator Carper. Second, did Congress require constitutional 
amendment to shrink the Capital in 1946, when it gave land back 
to Virginia?
    Mr. Primus. No, it did not.
    Senator Carper. Third, what is the maximum size of the seat 
of government established in the Constitution, and does it 
require a minimum size?
    Mr. Primus. The maximum is 10 miles square. That is in 
plain text. There is no minimum size. It is left to the 
judgment of Congress.
    Senator Carper. Thank you. Last, can you speak briefly as 
to why a constitutional amendment is not required, nor the 
norm----
    Mr. Primus. Well, constitutional----
    Senator Carper. Wait. Can you speak briefly as to why 
constitutional amendment is not required, nor the norm, in 
entering a State into the union, and how the Constitution 
grants Congress the authority to make a State? Go right ahead.
    Mr. Primus. Sure. This is the text of the Constitution. The 
Constitution, Article IV, Section 3, the Admissions Clause, 
which says that Congress can admit new States into the union. 
Like every other power expressly vested in Congress by the 
Constitution, except where specifically specified otherwise, 
that power is accomplished by congressional action by a 
majority of each house, and then presented to the President. In 
the small number of cases where something has to be done 
different, the Constitutional specifies that it has to be done 
different.
    This is not an oversight. At the Constitutional Convention 
in 1787, there was a proposal considered to require a super-
majority of Congress to consent to the admission of new States, 
and it was rejected. It was felt that this was the sort of 
thing that Congress can do all by itself, in the normal way 
that it does everything else. That is the text of the 
Constitution. To state that it has to be done in some other way 
is simply to say something that the Constitution does not say.
    If I might say one other thing, the suggestion that 
Congress needs Maryland's permission is not supported by the 
clause. It is true that Maryland gave the land to the United 
States to be used as the District. The land was used as the 
District.
    Suppose you wanted to bike to work instead of drive, and I 
said, ``I have an extra bike. Why don't you take my bike? Here, 
it is a present,'' and for 10 years you used my bike and ride 
it every day. Then 10 years later you decide that you want to 
do something else with the bike. You are going to ride it on 
weekends, or you are going to give it to your kid, or some such 
thing. You do not need to come back and ask me to do that. I 
gave you the bike. I did not say, ``If you do something with 
it, otherwise one day you have to give it back to me.''
    That is the position we are in. D.C. belongs to the United 
States.
    Senator Carper. Thank you for that response. We are being 
joined by Senator Lankford. I am pleased to recognize him at 
this time. Thank you for joining us, James.

             OPENING STATEMENT OF SENATOR LANKFORD

    Senator Lankford. Senator Carper, thank you very much. I 
know you have been in this dialogue for a very long time, and 
that you have been engaged in this, as many of you have been, 
engaged for a very long time on this. You also know my 
predecessor, in the last time that there was a hearing on this, 
Senator Coburn, when he came into this hearing he sat down and 
said it was a waste of time, and walked out.
    Senator Carper. A man of few words.
    Senator Lankford. Yes. I know that you all had multiple 
conversations on things you did not agree on, and I know this 
was also an area that you had strong disagreements.
    Senator Carper. We had a great friendship. He was a good 
talker. I was good listener.
    Senator Lankford. Yes. I appreciate the dialogue on this 
and to be able to go through it. Obviously this has been a 
point of conversation for many people for a very long time, to 
be able to talk about this.
    I want to begin with a larger question on this, and that is 
the issue of retrocession. Obviously we have walked through 
this area before, as a Nation, that the southern portion of the 
District of Columbia retroceded back to Virginia in 1847, 1946. 
I think just about everybody on the panel has mentioned that so 
far today, to be able to discuss retrocession. What is the 
barrier to retrocession with Maryland today? Mr. Pilon?
    Mr. Pilon. Yes. Thank you, Senator Lankford. That issue, 
with respect to the retrocession of Virginia in 1846 has never 
been tested. It arose in a private taxpayer suit some 30 years 
later. The court declined to address the merits because so much 
water had gone under the bridge, and so much would have to be 
disturbed.
    Many people have questioned whether that retrocession was 
legitimate, including no less than President Lincoln and 
President Taft, and others. And so it remains an open question.
    Senator Lankford. What is the way that that would have to 
be resolved?
    Mr. Pilon. The court have to speak to it, first of all.
    Senator Lankford. You have to find someone with standing, 
first of all, for the court to speak to it.
    Mr. Pilon. Yes. The standing issue would certainly come up. 
But with respect to retrocession to Maryland, which is what 
your opening question was about, there you would certainly need 
the consent of Maryland to do that. In fact, if I may respond 
to a point that Professor Primus made, the grant of land from 
Maryland to the District was made pursuant to Article I, the 
Enclave Clause, expressly for the specific purpose of creating 
a seat for the new government.
    Now, he used a hypothetical. I will give you a 
hypothetical. Suppose that immediately upon receiving that land 
the Federal Government turned around and created a State rather 
than the seat of the new government. Everybody would agree that 
was sheer political mischief. If that is the case, then what 
difference does it make whether they did it immediately or in 
the intervening 200 years? The principle remains the same. They 
did not use it for the purposes for which the land was granted, 
but to do something completely different, and that raises a 
series problem, in and of itself. It raises the Article IV 
question too, because in order for the Federal Government, 
Congress, to make a State out of the District, you would need, 
had they done that initially, the consent of Maryland to do 
that, under Article IV. It seems to me that consent will still 
be needed, even though it is more than 200 years later.
    Senator Lankford. It is interesting to me when I look back 
on the history of this conversation, again, none of this is new 
in this dialogue. In 1963, at that time Attorney General Robert 
Kennedy wrote, ``While Congress' power to legislate for the 
District is a continuing power, its power to create the 
District by acceptance of secession contemplates a single act. 
The Constitution makes no provision for revocation and the act 
of acceptance or for retrocession.''
    Then Ed Meese, a couple of decades later, as our Attorney 
General, in 1987, wrote, ``Clearly, the District chosen would 
not exceed 10 miles square, but under the language of that 
clause, once the session was made and this District became the 
seat of government, the authority of Congress over its size and 
location seems to have been exhausted. The Constitution appears 
to leave Congress no authority to redefine the District's 
boundaries absent an amendment granting it that power.''
    Now obviously constitutional scholars, even at this 
conversation, have disagreed with that. What are your thoughts?
    Mr. Pilon. Attorney General Kennedy was absolutely right. 
The creation of the district was a single act. It was 
completed. It was done. Now you have to look where Congress 
might have other authority to turn that District into something 
like a new State.
    The other side points to Article IV. The problem there is 
that the District is sui generis. It is unique. This is not a 
normal creation of a State process, as though you were doing it 
under Article IV with the Federal territory, say the Northwest 
Territory, the Louisiana Purchase, land that was acquired in 
clear contemplation of new States being created for it. The 
District of Columbia of was not created with the contemplation 
of a new State being created from it.
    Senator Lankford. Mayor Bowser, it is good to see you 
again. We have had the opportunity to be able to chat for 
several years now, so it is good to see you again. Let me ask 
you a couple of questions on this as well.
    Were you surprised at the original design of the transition 
of leadership that the Mayor--whoever the Mayor is, at whatever 
time that this would automatically become Governor in that 
transition? Obviously, the Federal officials would have to go 
under an election, but at that point District leadership would 
become State leadership and get automatic transition. Is that 
surprising to you, just in the structure of it?
    Ms. Bowser. We convened a Constitutional Convention, 
Senator, so over several months D.C. residents participated in 
how they would want the State government to look, and we wrote 
a constitution. In that constitution we expanded democracy by 
adding more State legislatures, which is important, but also 
just converted the existing elected officials to seats, and the 
constitution also contemplates the election of the new State 
representatives and the Federal officials.
    Senator Lankford. OK. Let me follow through on one more 
issue that is connected but not connected on this.
    Washington, D.C., during the pandemic time period, had the 
most strict religious liberty restrictions of all across the 
United States, with the limitations for gathering of people of 
faith to be able to gather indoors. There was a lot of pushback 
that happened. You eventually changed that and opened that up a 
little bit, but it was still a very strict, non-allowance, I 
guess I should say, for people of faith to be able to meet, 
whether it was last Easter or other times, to be able to gather 
and to be able to go through all these, just a normal faith-
gathering time period.
    You have to know that Congress overwhelmingly passed, in 
1993, the Religious Freedom Restoration Act (RFRA), and it is 
interesting to me during this time period and this conversation 
Delegate Norton introduced H.R. 4023, which would amend the 
Religious Freedom Restoration Act and would take out the 
applicability of that to Washington, D.C., that Washington, 
D.C., would no longer follow under the Religious Freedom 
Restoration Act as the rest of America would, and watching what 
happened for the limitation of people of faith during the time 
of the pandemic.
    I am trying to figure out, if this became a new State, kind 
of the direction that this seems to be headed for people of 
faith to be able to live out their faith. Now I have no belief 
that you are trying to limit people from having faith in D.C., 
but it was odd, during this season of the pandemic, to see such 
strong limits on people of faith gathering together. Can you 
help me understand that?
    Ms. Bowser. Certainly. The COVID restrictions were for 
everybody, and I do not have to tell you that we faced a 100-
year pandemic, and I am very proud of D.C. residents, 
businesses, houses of worship who followed health guidance and 
allowed us to crush this virus. That is why I can sit here 
today with D.C. fully open, and I know that we saved lives by 
flattening the curve, keeping people out of the hospital and 
intensive cares, and making sure our first responders could 
respond to the virus. I am proud of the work that we did.
    Certainly what health guidance told us, Senators, was that 
some indoor spaces were more of a risk for transmission of the 
virus than others, and unfortunately churches were among them. 
Believe me, I have had this debate. I have had this debate with 
my own church, in court. We came to many compromises. It was 
always our intent to make sure that people of faith and houses 
of worship all across the District could practice their faith, 
but also practice it safely.
    I do not have to remind you our very first case in the 
District was in a church, and we saw the spread of the virus, 
and we learned a lot about the spread of the virus from case 
No. 1.
    The work that we did was important, it was necessary, and 
the compromises that we made were also good ones.
    Senator Lankford. It is an interesting balance, though, to 
be able to walk through First Amendment protections and also 
pandemic protections----
    Ms. Bowser. Yes.
    Senator Lankford [continuing]. In this process, and as you 
know many churches left the District to be able to go worship a 
few miles away, either in Maryland or in Virginia, where they 
could meet for worship, to be able to gather indoors or 
outdoors. I understand as a mayor you make difficult calls, but 
there is a unique protection for people of faith to be able to 
live out their faith and be able to guard that. I appreciate 
the dialogue----
    Ms. Bowser. Sure.
    Senator Lankford [continuing]. Let me yield back the time. 
I apologize for going a little bit long.
    Senator Carper. No, happy to hear you. Thank you for your 
questions. It would be interesting to know. Senator Lankford is 
probably, I should mention, a number of members of our body 
here are people of deep faith, and none deeper than his. It 
would be interesting to know, attendance at worship services of 
all different faiths ebbs and flows over time. We are seeing 
some ebbing going along in most major faiths in this country 
today. I don't assume to believe that anybody knows what this 
number would be, but it would be interesting to know what 
church attendance is like in the District as compared to some 
of our other States. That would be interesting. We will ask 
that question for the record. It would be interesting to see 
what that looks like.
    I have a follow-on question, if I could, and I would ask 
the Mayor if you could handle this, but I also want to ask Mr. 
Morial to join as well. I will ask the two of you to tag-team 
it. I never imagined, as an elected official, as Delaware's 
Treasurer, Congressman, Governor, Senator, that a retired Navy 
captain, a Vietnam veteran, last Vietnam veteran serving here, 
but I never imagined serving in all those capacities that I 
would ever end up leading a charge in the Senate to fight on 
behalf of the residents of the 51st State. But that is where we 
find ourselves, and I think we regularly see the negative 
effects on D.C. residents of not having a vote or a voice in 
Congress. We talked about that, especially during a global 
pandemic.
    As a District with 46 percent African American population, 
let's not forget that like other communities of color across 
the Nation, African Americans are suffering disproportionately, 
or have suffered disproportionately in D.C. from the COVID-19 
pandemic, and most of those infected in D.C. are people of 
color, as you know, and I am told that about 75 percent of 
those who have died here are African American.
    I would ask the Mayor and then Mr. Morial, can you speak to 
the issue of inequality here, and, Mayor Bowser, could I please 
ask you to speak to why the nearly 700,000 District residents, 
our fellow Americans, have been and continue to be 
disproportionately impacted during the pandemic as a result of 
not being a State.
    Ms. Bowser. Thank you, Senator, and I think you are about 
right about those stats. We saw early on in the pandemic that 
our African Americans residents were not only being affected 
with COVID-19 but dying from COVID-19 in vastly greater numbers 
than their white counterparts. We know that African Americans 
and our Latino residents are more likely to be in essential 
work positions and were unable to stay at home once the home 
orders were introduced across America, because they were the 
grocery workers, they were the nursing assistants, they were 
the people that were keeping our sanitation services going 
across America. They were getting infected more, and because of 
centuries of disinvestment in our health, were also dying more.
    What was a tragedy that we did not expect during all of 
this, as we were facing a 100-year pandemic, is that we would 
be left out of the emergency funding that we so desperately 
needed, to stand up testing, to build alternative care sites, 
to make sure that we could provide alternate spaces for 
learning. In the CARES Act, $755 million, we were short-
changed, and we spent the better part of the year making sure 
we got that money back. I am grateful to this Congress for 
seeing that through.
    But what that meant, Senator, for the first time in no one 
could remember since, that we were treated in a formula with 
territories, rather than being treated like a State, which we 
are, in hundreds of Federal statutes. So it made clear to all 
of us how important it was that what our practical operation as 
a State, a county, and a city can only be codified and not 
reversed in any piece of legislation with statehood.
    Senator Carper. Thank you for that response. Mr. Morial, 
would you like to add to those words?
    Mr. Morial. Let me say, Senator Carper, I appreciate you 
raising this issue. A few important facts. The United States is 
approximately 14 percent African American. The District of 
Columbia is some 46 to 50 percent African American. The failure 
to provide Federal voting rights, voting rights for a Member of 
Congress and two U.S. Senators, for the 51st State, 
disproportionately impacts a large number of African American 
citizens of the United States.
    There was once a time when the District of Columbia was as 
much as 70 percent African American, and D.C. became, in the 
early 20th Century, a place where African American residents of 
Virginia, North Carolina, South Carolina, and the Old South, as 
a part of the great migration transitioned to. They had no 
right to vote in Alabama, Georgia, South Carolina, North 
Carolina, or Virginia, and they had no right to vote in the 
District of Columbia.
    Then the Voting Rights Act came along, and people in 
Alabama, Georgia, South Carolina, North Carolina, Virginia, 
Louisiana, Texas, and Florida gained the right to vote for 
members of the House and members of the U.S. Senate. But the 
members of the District of Columbia, the black residents, and 
beyond the black residents, were left out and left behind.
    Mayor Bowser identified the structural impact of this, is 
that D.C., for many Federal programs and initiatives, is 
treated like a territory, which denies the residents of the 
District of Columbia, including its black residents, equal 
treatment and therefore equal representation, not only in 
voting but across the board. That is a structural inequity that 
is associated with this fundamental denial of a right to vote.
    One only believes, as I do, that the residents of the 
District of Columbia have been patient since 1965, have been 
patient as they sought to achieve and to accomplish their full 
rights as American citizens, and I doubt if anyone else outside 
of the District of Columbia would stand for being 
disenfranchised in the way the residents of the District of 
Columbia have been disenfranchised. This is something whose 
time has come, and this is something that is a right.
    Senator Carper. Thank you for those words. That was very 
insightful. Thank you.
    We have been joined by Senator Rosen. I want to thank you 
for joining us today, for being in support of this legislation, 
and you are now recognized. Thank you, Senator Rosen.

               OPENING STATEMENT OF SENATOR ROSEN

    Senator Rosen. Thank you, Senator Carper. I appreciate your 
work on this for many years and your chairmanship of this 
Committee in the past.
    I would really like to thank Mayor Bowser, Congresswoman 
Holmes Norton, well, Senator Lieberman has left, but everyone 
for being here and for the work that you have been doing, 
because we know there are a lot of contributions from our D.C. 
residents. I like to say every Senator is a parent of an only 
child, the States we represent, and we are so incredibly proud 
of them, right? We are their biggest cheerleader, their biggest 
champion.
    For me that means Nevada, and I could not be prouder of our 
great State and its amazing people, but we were not always a 
State. We began as a territory, becoming part of the United 
States but not yet a full State. Via treaty with Mexico in 
1848, that is when we were a territory. In the beginning we did 
not even have our name. We were part of the Utah Territory, 
becoming the Nevada Territory only in 1861, and it was not 
until October 31st--Nevada Day, we call it now--1864, in the 
midst of the Civil War, just eight days before President 
Lincoln's reelection, that Nevada, the Battle Born State, 
became the 36th State in the union.
    I am a proud co-sponsor of S. 51, the bill that provides 
statehood to D.C., and so I am so glad to hear your stories and 
have that become part of your State story when somebody tells 
that in the future. And so we just want you to be the parents 
of the newest State.
    Mayor Bowser, as a proud D.C. resident, as its elected 
Chief Executive, can you tell us about some of the wonderful 
contributions that D.C. residents make to our, not just this 
community but to our country, every day?
    Ms. Bowser. Thank you for that question, Senator, and thank 
you for sharing the Nevada story, and we do indeed look forward 
to telling the D.C. story and being admitted, just like Nevada 
was, by a simple legislation by this Congress, who has that 
full authority.
    When we think about D.C. residents we are eight wards, 
700,000 people, people who start businesses here, who raise 
their children here, and pay their taxes. In fact, they pay 
more taxes per capita than any other American, and we pay more 
taxes than 20 States.
    We are what we call a donor State to the Federal 
Government, and sometimes people are mistaken and think that 
the Federal Government pays to operate the District of 
Columbia, and that is just not the case. I presented, just a 
couple of weeks ago, a $17 billion budget to the Council of the 
District of Columbia, which will become our State legislature. 
Unlike other mayors, we operate a school system. We operate our 
corrections system, our Department of Motor Vehicles (DMV). In 
so many ways we already function as a State.
    Senator Rosen. You are the busiest mayor--is that what you 
are saying? [Laughter.]
    But you are the most diverse mayor, perhaps, because 
diversity is a strength. That is for sure. And like D.C., 
Nevada's population and our State is incredibly diverse. Our 
strength as well. We have 30 percent Latino, 10 percent African 
American, about 9.5 percent Asian American and Pacific Islander 
(AAPI) community. In fact, we have the fastest-growing AAPI 
community, one of them, in the Nation. While D.C. is often 
called out for having lots of newcomers, Nevada has many new 
residents as well, and sometimes we have been known to be the 
fastest-growing State in the country.
    And so only 25 percent of Nevada's 3 million residents were 
actually born in Nevada. So our diverse population, the influx 
of people from all around the Nation and the world, make us the 
dynamic State that we are. I know you too have a diverse 
population, coming from all over the country and all over the 
world. Why does it matter to this population as well that they 
are the 51st State?
    Ms. Bowser. Absolutely. We are diverse, and we are diverse 
in some ways that people do not recognize. I call him Mayor 
Morial, but President Morial also mentioned, 46 percent African 
American, 12 percent Latino, about 3 or 4 percent AAPI. We are 
also growing. With our recent census we are among the fastest-
growing jurisdictions in the Nation as well.
    Let me say something about our economic diversity. 
Infrequently we are thought of us as a Federal Government town, 
and indeed, we are proud to be host to the Federal Government. 
But the Federal Government's presence in the District of 
Columbia has actually been decreasing over a couple of decades. 
Federal jobs have been decreasing, Federal workers have been 
decreasing, and even the Federal use of space in the District 
has been decreasing over several years.
    We have been focused on how to diversify our economy, build 
private-sector jobs, focus on technology and hospitality and 
education. Those are the jobs of the future in the District. 
That is why our economy has been so robust.
    It was discussed earlier that we are an elite place. 
Speaking as the daughter of two government workers who raised 
five kids and focused on family and faith in this city, I can 
tell you that people work hard here, but we also have a 
diversity of incomes, and even a diversity of views.
    We are particularly well situated right now, Senator, to be 
admitted as a State. You will see, with our population, we are 
larger than two States already and we rival five others, and 
the way that we are growing we will achieve that. We are by far 
larger than most States when they were admitted to the union. 
We are just poised to be a great benefit to the union as the 
51st State.
    Senator Rosen. Thank you. I think you are a great benefit 
already. I appreciate your service, and I will yield back my 
time.
    Senator Carper. Thanks very much for yielding. Senator 
Lankford, if you would like to be recognized again I am happy 
to do that.
    Senator Lankford. Senator Carper, thank you very much for 
that.
    Professor Muller, I want to ask you a couple of questions 
to be able to follow up on some of your statements earlier. You 
had talked about the difference in this bill, the H.R. 51 bill, 
and the way that it handles the 23rd Amendment. This bill says 
that we will pass it, we will declare D.C. a State, and then we 
will get around to doing the 23rd Amendment, to be able to 
change the electors issue that is hanging out there.
    You flipped that in your earlier statement in saying why 
wouldn't this be conditioned on the 23rd Amendment being 
eliminated first, to be able to make sure that there are not 
three additional electoral college--I think you mentioned, for 
59 people that would be in the new Capital enclave at that 
point, that those 59 people would not have three electoral 
college votes. Can you go into that a little deeper?
    Mr. Muller. Sure. The bill does anticipate an expedited 
repeal process. It could only do one thing, which is an article 
that says we repeal the 23rd Amendment. But, until that happens 
we have an enclave of around 59 people, some set of that 
voters, who would then be eligible to choose three Presidential 
electors. And so the thought is, well, if we can push people 
and hopefully wait and see what happens, then maybe the 23rd 
Amendment will be repealed.
    So there is no condition on that. There is no sort of hard 
rule. The hard rule is that Congress has to have a vote. There 
is no guarantee that two-thirds of each house of Congress does 
it. There is not going to be a time limit about when 38 or 39 
States approve that amendment. It is sort of waiting to see 
what will happen while the 23rd Amendment, giving three 
electoral votes to this enclave, sits there.
    So instead, another way might be to say let us repeal the 
23rd Amendment or put a condition in the 23rd Amendment saying 
if the population of the District constituting the seat of 
government drops below a certain population threshold then the 
23rd article of the Constitution is no longer in place, 23rd 
Amendment no longer applies. Then that way we do not have these 
sorts of residual problems out there.
    Senator Lankford. All right. Do you know of any issue with 
trying to be able to form that way, what you are describing, as 
far as a constitutional issue or a problem with that?
    Mr. Muller. No. I think you could develop a constitutional 
amendment that would condition the repeal of the 23rd Amendment 
on some future event, like retrocession or statehood for the 
District. I mentioned in my testimony some of the concerns 
about how to handle the Capital voters left within that 
enclave. I think it is contested whether or not Congress has 
that power. I think a constitutional amendment that empowers 
Congress expressly to handle those voters left in the Capital. 
You could certainly fashion amendments and think creatively 
about how to address that solution holistically, on a 
constitutional side, before you get to the statutory side.
    Senator Lankford. Right. But either way there is a 
tremendous number of constitutional issues that still have to 
be resolved. Obviously, the Founders designed a Capital region 
to never be a State. I mean, that was the design in the 
Constitution to say this is uniquely, so that the Federal 
Government does not exist under the authority of any State, or 
try to interact with a State. It was designed very particularly 
to be able to make sure that constitutionally there would 
always be a region that is there, that was established so that 
Federal Government did not have to worry about what is State, 
what is Federal, and living under that.
    So there are lots of constitutional questions here that the 
farther you go, the larger the constitutional questions get. 
Many of them are novel. They have never been addressed before. 
Obviously, the retrocession to Virginia of the southern portion 
of D.C. was never really resolved long term. That one still 
hangs out there. But all the other constitutional issues still 
are reserved. Is that correct or not correct?
    Mr. Muller. Right. There are a number of unsettled 
constitutional issues. You have heard about some of them today, 
and they have been written about for decades.
    Senator Lankford. Right. Two hundred-plus years, any 
individual that moves to Washington, D.C., understand that 
Washington, D.C., is unique. This is a place where you do not 
have a vote for a Senator or a House member. Of the last 100 
years, we have had a delegate in the House. But it has been 
well known that when you move to Washington, D.C., at any point 
you are moving to an area that does not have two Senators or a 
House member. Correct or not correct?
    Mr. Muller. Yes, that is correct.
    Senator Lankford. When I look at it, and just the 
transition of this, that is a given statement for anyone that 
is moving. My hometown of Oklahoma City is ten times the size 
of Washington, D.C,, but there are still individuals that want 
to live in Edmond, Norman, Moore, or in Bethany, and they 
choose to be able to move out of Oklahoma City but still 
commute back and forth in other areas, to be able to work or 
live, because it is a choice that they make.
    In an area that is literally one-tenth the size of my 
hometown of Oklahoma City, people have options to be able to 
still work and to be able to travel and to be able to move into 
other areas. If they wanted to be able to work in Washington, 
D.C., many people live in Maryland, in Virginia, or in West 
Virginia, and drive in, to be able to here from longer 
distances. But that is a volitional choice. No one is compelled 
to actually be here, knowing that that has been the situation 
for more than 200 years. Correct?
    Mr. Muller. Yes.
    Senator Lankford. OK. Thank you.
    Chairman Peters [Presiding.] Thank you, Senator Lankford. 
The Chair recognizes Senator Hawley for your questions.

              OPENING STATEMENT OF SENATOR HAWLEY

    Senator Hawley. Thank you very much, Mr. Chairman, and 
thanks to all the witnesses for being here.
    Dr. Pilon, let me just start with you, if I could. Just 
help me understand the history here. My understanding is that 
the United States Justice Department, the Office of Legal 
Counsel (OLC), has weighed in on this question a number of 
times over the course of its history. To my knowledge, the 
Office of Legal Counsel has never said that Congress has the 
ability, by statute, to turn the District of Columbia into a 
State. Is that correct?
    Mr. Pilon. That is correct. The only exception occurred 
during the Obama Administration, when the Office of Legal 
Counsel gave the no-go for this. And so he turned to the 
Solicitor General's Office (OSG), and the Solicitor General 
said we can defend this, and, of course, that is very precious, 
because that is the job of the Solicitor General's Office, to 
defend even unconstitutional matters that may turn out to be 
such.
    Senator Hawley. Sure. What happened was the Attorney 
General under that administration got a consistent, the same 
answer that Attorneys General, and Presidents, had been getting 
for decades, decided he did not like that answer, and said, 
well, maybe somebody else will give me a different answer. But 
consistently, the Office of Legal Counsel, which is that unit 
in the Justice Department, that office that is charged with 
looking at these constitutional questions and providing 
dispassionate, impartial, nonpartisan legal counsel, has 
consistently said there is no constitutional authority for 
Congress to snap its fingers, use a statute to turn D.C. into a 
State.
    Mr. Pilon. Right.
    Senator Hawley. Now that is a bipartisan tradition. You 
mentioned in your written testimony one pretty prominent 
Democrat Attorney General, Robert Kennedy. He rendered a fairly 
lengthy opinion on this. Tell us about the significance of 
Robert Kennedy's opinion back in 1963, I think it was, when he 
said that, no, the Constitution does not give Congress the 
power, by statute, to turn D.C. into a State. Of course, it can 
be done by constitutional amendment, how exactly it would have 
to be worked out, but that is what we are talking about here. 
We are talking about just doing it by statute. Even Robert 
Kennedy said no, that cannot be done. Tell us about the 
significance of his opinion.
    Mr. Pilon. The significance, beyond the fact that was a 
Democrat, comes from the fact that he said that this is a 
single act, the creation of the District. Then the question 
becomes does Congress have authority to do what is contemplated 
by these various proposals that have come over the years, and 
the conclusion that the Office of Legal Counsel gave him was 
that no, they do not. It is a single act to create the 
District. It is finished. If you want to do something more like 
retrocession and so forth you are going to need to find some 
authority under the Constitution.
    The important issue here, which was just brought up by 
Senator Lankford, namely that the District is unique. It is not 
an ordinary process of creating a new State from territory 
acquired for the express purpose of creating new States from 
it, the Louisiana Purchase, et cetera. It is sui generis. It 
was created expressly under Article I, not under Article IV, to 
be the seat of the Federal Government. Under this bill, S. 51, 
the seat of the government would be this tiny enclave, and I 
just invite you to think, in response to an earlier question 
from Senator Lankford, what this would mean with this much-
reduced authority of Congress to have exclusive jurisdiction 
over this tiny enclave. It means that, for example, they are 
dependent upon this new, untested State for everything from 
power to water to fire protection, and going on and on. We can 
imagine how the framers did not want that, and they did not 
want it expressly because of what the experience, as we 
testified earlier, they had under 1783, when the Congress was 
attacked by a mob.
    Senator Hawley. Let me ask you this. So we have the scene 
set. The Constitution of the United States expressly and 
explicitly created the District of Columbia. It designates it 
as the seat of government, with the 23rd Amendment, which comes 
along and ratifies that, essentially. I mean, it is already in 
the Constitution. The 23rd Amendment ratifies that, so it is 
there. It is not an unincorporated territory. It is created by 
the Constitution, created as the seat of government.
    Now my understanding of constitutional law is Congress 
cannot, by legislation, override the Constitution. Am I right 
about that basic understanding?
    Mr. Pilon. That is Con Law 101.
    Senator Hawley. Now what if Congress really wants to? Like 
if Congress thinks, no, it is really important that we override 
the Constitution. Do they get to do it then?
    Mr. Pilon. That is called the demise of the rule of law.
    Senator Hawley. What happens if there is a great political 
advantage to one party of they do it? I am looking here at a 
series of news articles from the last year and a half. The 
Nation, ``Democrats have inherited a broken Senate. Can they 
make it work? It calls for D.C. statehood to add two more 
Democrat votes to the Senate.''
    NBC News, ``New push for Washington, D.C., statehood hits 
the Presidential campaign trail, imperative, Democrats say, to 
add two more votes to the U.S. Senate for them.'' New York 
Magazine, ``D.C. statehood is the Democrats' only option.'' 
VOX, ``Eleven ways to fix America's fundamentally broken 
democracy, D.C. statehood, to add two more Democrat votes to 
the U.S. Senate.'' Indivisible says, ``Making democracy reform 
a priority has to be D.C. statehood.''
    All of this, the premise of all of these articles, which 
are very candid, is that Democrats think that they will not be 
able to control the U.S. Senate in the long term, they need to 
add two more Democrat seats to control the Senate, so it is 
really important. If they think it is really important, does 
the Constitution give them the authority to override what is 
actually written down on that text with the law? Can they do 
that?
    Mr. Pilon. Let me get on the record an important point. It 
is often thought that we, on this side, are opposed to giving 
the District residents the vote. Nothing could be further from 
the truth. The idea is, however, that you must do it in the 
right way. You have to do it in the constitutional way. And so 
that means that you are going to have to address, among other 
things, the 23rd Amendment problem, because there will still be 
people within this District who still have the right to vote. 
You cannot remove that from them by mere statute. It has got to 
have an amendment to do that. Indeed, if the tables were 
reversed on some other issue, I think the other side would be 
screaming if this were attempted.
    Senator Hawley. Rightfully so, and I will just finish, Mr. 
Chairman, by saying that it is a fundamental premise of our 
democracy that the Constitution of the United States is the 
supreme law of the land, that it binds all who live under it. 
We, the people, can change it. We absolutely can change it. We 
have a process to do that, a democratic process.
    What Congress cannot do is override the Constitution any 
time it becomes inconvenient for a majority in Congress, a 
temporary majority, as James Madison would have said. Today it 
is the Democrats, tomorrow it is the Republicans, after that 
the Democrats again. Who knows? The point is the Constitution 
endures, and that is the fundamental premise of our democratic 
republic, and I fear that that premise is being threatened by 
this legislation.
    Thank you, Mr. Chairman.
    Chairman Peters. Thank you, Senator Hawley. I want to 
follow up on Mr. Pilon's comments on the 23rd Amendment. This 
question is for you, Mayor Bowser. In your written testimony 
you state that it is, ``It is particularly contradictory that 
the 23rd Amendment is being held up as the main barrier to 
further expanding constitutional rights in the District.'' 
Could you elaborate on this point for the Committee, please?
    Ms. Bowser. Yes, Mr. Chairman, and let me be clear what the 
23rd Amendment does. The 23rd Amendment allowed D.C. residents 
a vote for President, and that was in the 1960s. Let that 
marinate for a second. Before the 1960s--this is, about 10 
years before I was born--we could not even vote for President. 
So that is what the 23rd Amendment does. Its intent was to 
expand democracy to D.C. residents, and now it is being held up 
as a barrier.
    I just ask you to look at the comments that were submitted 
by 39 legal scholars, where Professor Primus has already 
testified to today, that the 23rd Amendment poses no 
constitutional barrier to this bill's passage. D.C. can be 
admitted as a State.
    The practical concerns have been discussed, and this bill 
also lays out practical solutions, by repealing the enforcement 
legislation. The 23rd Amendment makes clear that Congress, that 
it is the Congress, by statute, can enforce the 23rd Amendment, 
must enforce the 23rd Amendment. That is what will happen after 
this bill is passed.
    Chairman Peters. Thank you, Mayor. Mr. Morial, I want to 
ask you a question related to the 23rd Amendment as well. You 
have heard the Mayor speak and you have heard critics say that 
the 23rd Amendment really provides sufficient voting rights 
now, because you can vote for President. That is part of it.
    Could you, Mr. Morial, would you explain the importance of 
granting full voting rights and equal representation, and how 
important that is in your mind?
    Mr. Morial. Every American citizen has the right, those 
that live in the States of the United States, the right to 
elect people to the Legislative Branch and the Executive 
Branch, and therefore have a voice in the selection of the 
Judicial Branch. To suggest that for the residents of the 
District of Columbia that solely having a right to participate 
in the Presidential election, it is tantamount to the one-third 
rule--we will give you one-third of your Federal voting rights 
and the other two-thirds we are going to withhold.
    I have listened today to a lot of arguments about the 
Constitution and about the law, and I am lawyer, and respect 
those. But when you balance what is fundamental to the United 
States, all of our rights as citizens, it is the right to vote 
which is fundamental.
    When the 23rd Amendment was passed, black D.C. residents 
did not have the protection of the Voting Rights Act. Poll tax 
was legal. These are different times, and I think that all of 
these arguments fall by the wayside when you balance it against 
the necessity. What does a vote in Congress give you an 
opportunity to do? Participate in the appropriations process, 
participate in the process of writing laws, giving yourselves a 
voice on taxation issues, on regulatory issues, on a wide range 
of issues. The District of Columbia is a dynamic community of 
700,000 people. It is distinct from the State of Maryland. Its 
voters have said we do not want to retrocede to Maryland. In 
fact, the polling suggests that the residents of Maryland have 
said we do not want the District of Columbia to retrocede to us 
either.
    This is so crucial that the right to vote is what is at 
stake here, the right to representation is at stake here. Our 
soldiers have been overseas, fighting in Iraq, fighting in 
Afghanistan, fighting for democracy, fighting for the right to 
vote, fighting for the right to participate. What about right 
here in the United States of America? Why do we single out the 
residents of the District of Columbia? Forget the partisanship. 
Forget who will vote for who. That is not what is at stake. If 
we really, truly want to nonpartisan, we will be like Lady 
Justice. We will put a blindfold on as to how the residents of 
the District of Columbia might vote, and affirm their 
fundamental right to vote, without regard to who they may vote 
for.
    Chairman Peters. Thank you, Mr. Morial. A foundational 
principle of our Nation, that I think we can all agree on, and 
certainly was etched in the Declaration of Independence, is 
that government is derived from just powers, and the just 
powers they have is from the consent of the people. Bottom line 
is it is from the consent of the people.
    Professor Primus, in your written testimony you state that 
that principle, and I would quote here, ``animates the whole 
Constitution and is the idea that Congress should be 
electorally responsible to the people for whom it legislates.''
    Professor, could explain how D.C. statehood would fulfill 
our core democratic principles while also complying with the 
Founding Fathers' intent that there be an independent seat of 
government?
    Mr. Primus. Statehood would mean that D.C. residents who 
are American citizens can vote and be represented in Congress. 
It is that simple. And S. 51 would mean that the Constitution's 
vision of a seat of government that is not part of any State, 
it would be maintained. We can have a both. If we can have 
both, then it does not seem to make sense to blame the 
Constitution if we decide not to have both, because the 
Constitution lets us have both of those things.
    We heard a few times today that the Constitution does not 
give Congress the power to do this, but, in fact, the 
Constitution does give Congress the power to do this. That is 
Article IV. Congress has the power to admit new States. That is 
all this would be. Sometimes we have heard this discussed as if 
there was a really powerful set of incentives to admit D.C. 
statement but it cannot be done because the Constitution does 
not permit it, and we would disrespect the Constitution to go 
forward.
    What actually disrespects the Constitution is to pretend 
that the Constitution says things that it does not, that stop 
us from doing the right thing. The Constitution does not say 
that the seat of government has to be D.C. as we know it. The 
Constitution does not say anything about D.C. or where it has 
to be or how small it can be. The Constitution does not say 
that Article IV permits Congress to admit new States but not 
D.C. We have heard a number of times today D.C. is unique, but 
Article IV does not say ``except D.C.'' All of those things 
that are raised as objections are actually not in the 
Constitution. The Constitution permits this, and the vision it 
represents to the government requires it.
    Congress can decide to do it or not, but if Congress does 
not do it, Congress should not say we wish we could but the 
Constitution prevents it. No one has identified anything in the 
Constitution that prevents it, for the simple reason that 
nothing in the Constitution does prevent it.
    Chairman Peters. Thank you, Professor Primus.
    Mayor Bowser, the professor has just mentioned nothing is 
in the Constitution that would prevent this from happening, so 
we would also like to think about what perhaps were our 
Founding Fathers thinking, as they wrote this. My question to 
you is, do you believe that preserving the status quo in D.C., 
where residents have no voice in their government, do you think 
that is what the Founding Fathers envisioned when they drafted 
and ratified the Constitution?
    Ms. Bowser. Absolutely no, Senator. We know, as we have 
already discussed, that ending ``taxation without 
representation'' was a principle that led to the independence 
of our Nation, and it is a glaring contradiction of our 
democracy that residents of the Nation's Capital, literally 
people who could look out of their windows and see this 
building, do not have a vote or a voice in this chamber, and no 
vote in the House of Representatives. As the professor 
outlined, it is very clear that the Congress has the authority 
to admit new States, including Washington, D.C. We know the 
time to correct that wrong is now.
    Chairman Peters. Mr. Morial, I mentioned men and women who 
are serving in the military from the District now, and we know, 
since World War I, around 200,000 brave men and women from 
Washington, D.C., have served in the Armed Forces, including 
11,000 residents who are actively serving right now, and 
roughly 30,000 veterans who live within the borders of D.C.
    Mayor Bowser, can you speak to the service and to the 
sacrifice of your veteran constituents, and the injustice that 
they face as they put their lives on the line to protect the 
rights of others, and yet when they return to the city those 
rights are actually being denied.
    Ms. Bowser. Yes. So our Congresswoman spoke very eloquently 
when she started. We represent 30,000 veterans. We see D.C. 
residents sign up and volunteer for the Armed Forces every 
single day. Our residents go to service academies in service to 
their country. D.C. residents, you note, Senator, are not 
asking for special treatment. We are asking to be treated 
equally. We have stepped up in every case that we have been 
asked to serve our country, and we want to continue to be able 
to do that.
    When D.C. residents have two Senators they can argue for 
better treatment for our veterans, not just our own but 
veterans across America. We can stand shoulder to shoulder with 
you to make sure the Veterans Administration has what it needs, 
or like I like to see here in Washington, D.C., a world-class, 
state-of-the-art, new Veterans Hospital for Washington, D.C.
    We can be creative with you and our fellow Americans in 
addressing the needs of our veterans, including work and job 
training, job opportunities, and housing. We can promote 
innovative housing options like we have done right here in 
Washington, D.C., and share all of that learning with our 
fellow Senators. So our admission to the union is only going to 
enhance how our country really invests in and responds to our 
veterans.
    But imagine--and I think when we were here the last time we 
were joined by members of our Armed Forces, who when important 
measures come before this Senate, like Mayor Morial said, 
including issues of war and peace, they have no voice here. 
That is fundamentally unfair to their service and unfair to 
their citizenship.
    Chairman Peters. Thank you, Mayor. Senator Carper, you are 
recognized for your questions.
    Senator Carper. Thank you, and thank you so much. I 
appreciate your patience as a panel, which we are voting on a 
number of bills, so thank you for bearing with us. Thank you, 
Mr. Chairman, as well.
    I want to know one last question, if I could, for Professor 
Primus. Some folks are concerned that if statehood is granted 
to the District of Columbia, the Federal District is reduced. 
The individuals living in the Federal District will have 
outsized power due to the three electoral votes assigned to the 
District through the 23rd Amendment. Our bill, S. 51, would 
repeal the enabling statute for the 23rd Amendment and provide 
for expedited consideration of a joint resolution for the 
repeal of the amendment.
    Now I understand that even if Congress does not move to 
repeal the 23rd Amendment it has the authority remedy that 
situation. Professor Primus, can you take a moment to address 
the options Congress has when it comes to dealing with three 
electors assigned to the Federal District and why you do not 
see this as a constitutional obstacle, please?
    Mr. Primus. Yes, Senator, I would be happy to. The first 
best-case scenario, I think everyone agrees, is if the 23rd 
Amendment should be repealed, and the good news is if everyone 
agrees that it would be not a good situation to have a couple 
of dozen people have three electors for the presidency--I think 
everyone does agree about that--repeal ought to come pretty 
quickly. If you think that we cannot get a repeal of the 23rd 
Amendment on those facts, it means that you do not believe that 
the Constitution can be amended at all, and that is a 
proposition that I think few of us want to endorse.
    Now, until that happens, secondarily, S. 51, as presently 
written, takes the electors appointed pursuant to the 23rd 
Amendment, out of the electoral count, that ultimately names 
the President. That is an amendment that it makes statutorily. 
That is enough to prevent the situation where those electors 
distort the outcome of a Presidential election, even if the 
23rd Amendment is still on the books.
    If the Congress wanted to do other things to make even more 
sure that there would be no problem under the 23rd Amendment, 
Congress has many options. The Congress is in charge of 
legislation enabling, implementing the 23rd Amendment. For 
example, Congress could provide, by statute, exercising their 
constitutional power, that if there are electors named for the 
seat of government that they will be legally instructed to vote 
for the candidate that would get the most electoral votes 
anyway. That would not be hard to do, and it would have the 
effect of making sure that those electors do not affect the 
electoral vote. Or Congress could, if it wanted to, decide that 
it would instruct those electors to vote for the winner of the 
national popular vote, and if necessary could specify what 
shall constitute the winner of a national popular vote.
    It could even, in a symbolic measure, if it wanted to make 
the admission of D.C. into a further moment of confirming our 
connection to the framing of the Constitution, it could even 
direct those electors to vote for President, for George 
Washington of Virginia, and for Vice President, for John Adams 
of Massachusetts. That would not distort our current elections 
at all.
    Again, the best thing is simply for the 23rd Amendment to 
be repealed, that any of these solutions would do, and the 
concern that we cannot find a solution for something for which 
there are many good solutions, is the sort of thing that gets 
to we do not want to find a solution? There are lots of easy 
solutions here, and S. 51 already has one of them.
    Senator Carper. Mr. Chairman. Thank you. I want to thank 
again the panel, Mayor, everyone, all the witnesses on both 
sides, and Senator Lieberman as well, and for Mayor Morial.
    I opened my statement by quoting, earlier today, Mr. 
Chairman, the words of Mark Twain. I want to close with the 
words, if I could, of Thomas Jefferson. Jefferson once said 
words to this effect. He said, ``If the people know the truth, 
they will not make a mistake.''
    Our intent in this hearing today is to better ensure that 
people know the truth. I think most people have no--and 
probably, if you ask them, they do not realize that the 
District of Columbia has more people living in it than a number 
of States. Most people in this country probably do not realize 
that the per capita income, on a per capita basis, the Federal 
Government income taxes paid by the residents of the District 
of Columbia are greater than any other State. Most people do 
not realize that in this case the leader of the District of 
Columbia does not have the authority to call the Washington 
National Guard. There are any number of things that people just 
do not realize.
    My guess is that the framers, when they were writing the 
Constitution, never would have imagined that the District of 
Columbia would have this many people, and to pay this much in 
taxes but yet not have the opportunity to have representation 
or vote in the House and the Senate.
    This is a wrong that needs to be righted, and my hope is 
with the information, some of the information, the knowledge 
that we are gaining from this hearing and others going forward 
that at the end of the day we will do the right thing.
    I close with the words of William Wilberforce, not an 
American but a great British parliamentarian, who, for many 
years, was a leader against slavery in Great Britain. He said 
these words, the words of Wilberforce, 150 years ago. He said, 
``You may choose to look the other way, but you can never again 
say you did not know.'' We want to make sure the people of this 
country know, and know the truth, the whole truth, and nothing 
but the truth.
    Thank you, Mr. Chairman, and again, for our witnesses. Much 
obliged.
    Ms. Bowser. Thank you.
    Chairman Peters. Thank you, Senator Carper. In closing out 
this hearing I want to first thank Congresswoman Norton for 
your opening, for your incredible leadership over the years, 
and for passing significant legislation out of the House that 
we are now in the processing of looking at here in the U.S. 
Senate. I also want to thank Senator Lieberman for his 
leadership on the issues over the years as well.
    I want to thank each of our distinguished witnesses. This 
has been a great panel that certainly has provided perspective 
on, in my mind, this fundamental civil rights issue that we 
discussed here today. I think the Committee heard very 
compelling testimony on why Washington, D.C., should be 
admitted to the union as the 51st State. In my mind, it should 
not be viewed as a partisan issue in any way. This is about 
ensuring that more than 700,000 American citizens, who call 
Washington, D.C., home, have an equal voice in this great 
democratic republic of ours. For far too long, these Americans 
have been denied our nation's most critical founding 
principle--the right to equal representation and government.
    We heard convincing testimony today that there are no 
constitutional obstacles to admitting Washington, D.C., as a 
State, and the importance of passing Senator Carper's 
legislation here in the Senate would right this longstanding 
wrong in our nation's history.
    Once again, I appreciate our speakers. I appreciate our 
witnesses for their input on this important issue. The record 
for this hearing will remain open for 15 days, until July 7th 
at 5 p.m. for the submission of statements and questions for 
the record.
    Senator Carper. Mr. Chairman, before you do, can I just say 
one last sentence? A word of thanks to D.C. shadow Senators, 
Paul Strauss and Michael Brown, for their input in anticipation 
of this hearing. We appreciate their input. Thank you.
    Chairman Peters. Very good. With those final words, this 
hearing is now adjourned.
    [Whereupon, at 12:37 p.m., the hearing was adjourned.]




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