Maryland Congressman Says Bill to Make D.C. a State is Unconstitutional

By Terence P. Jeffrey | August 7, 2020 | 3:00pm EDT
Rep. Andy Harris (Screen Capture)
Rep. Andy Harris (Screen Capture)

( - Rep. Andy Harris (R.-Md.) said in an interview with that a bill that passed the U.S. House of Representatives this summer to make the District of Columbia a state is unconstitutional.

“I would hope that the nine members of the Supreme Court can read the plain language of the Constitution and realize it would be an unconstitutional attempt,” Harris said of the bill.

On June 26, the House voted 232 to 180 to approve the Washington, D.C. Admission Act. Only one Democrat voted against the bill.

If enacted, it would convert the District of Columbia into a state that would be called Washington, Douglas Commonwealth. This new state, like all other states, would have two United States senators.

One provision of the bill, as explained in its summary, “provides for expedited consideration of a joint resolution repealing the 23rd Amendment to the Constitution, which provides for the appointment of electors of the President and Vice President.”

(Photo by Dean Conger/Corbis via Getty Images)
(Photo by Dean Conger/Corbis via Getty Images)

The reason the sponsors of the bill want to repeal the 23rd Amendment is because it requires the nation’s capital district to have at least three electors in the Electoral College, which elects the president. Under the bill, a small area of the current capital city of Washington, D.C.—primarily the Mall and the areas immediately around the Capitol building and the White House—would be carved out of the new state and retain their status as the federal capital district.

If the 23rd Amendment were to stand, this small area—which might only be populated by the president and whoever lived with him or her in the White House—would be required to have at least three Electoral College votes.

“So, imagine if you elect a single president, there would only be one eligible voter, but you need three electors, and the president would have to be an elector of his own election,” said Harris in his interview with “It creates just a crazy set up. This was not ready for prime time.”

Repealing the 23rd Amendment would require a two-thirds vote in both houses of Congress and then ratification by three-fourths of the states.

The authors of the House bill to make D.C. a state probably carved out the small area around the Mall, Capitol and White House as a remnant, but unpopulated, federal district—and, thus, created the need to repeal the 23rd Amendment--in an effort to comply with another element of the Constitution: Article 1, Section 8, Clause 17. It says in part:

“The Congress shall have Power…To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of Particular States, and the Acceptance of Congress, become the Seat of the Government of the United States.”

The original District of Columbia included land ceded by both Maryland and Virginia. In 1846, Congress passed and President James Polk signed a law giving back to Virginia the land it had originally ceded to help form the capital city. Washington, D.C., as now constituted, retains the land that was ceded by Maryland. Rep. Harris, thus, represents the state that ceded the land that is currently the capital city of the United States.

Here is a transcript of the interview with Rep. Andy Harris:

Jeffrey: Welcome to this edition of Online with Terry Jeffrey. Our guest today is Congressman Andy Harris. Congressman Harris is a practicing anesthesiologist who studied at John Hopkins University and Hospital in Baltimore. He represents Maryland’s first congressional district. He serves on the House appropriations committee on labor, health and human services, and education. Congressman thank you very much for joining us today, I appreciate it.”

Rep. Andy Harris: “It’s good to be with you.”

Jeffrey: “So, on June 26 the House voted 232-80 to pass a bill to convert the capital city of Washington DC into a state. Only one Democrat voted against that bill, no Republicans voted for it. You gave a very powerful speech on the House floor against the bill.

“The Constitution says in Article 1, Section 8, Clause 17, quote” ‘The Congress shall have power to exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States.’

“That's what the Constitution says. Do you think that the bill that the House approved to make D.C. a state consistent with the Constitution?

Harris: “No, clearly not. That land that they were going to create this state from was given by the state of Maryland to the federal government for the sole purpose of being the seat of government. If the federal government is done with it being the seat of government, they can’t just make it a state, they have to give it back to Maryland."

Jeffrey: “Now the bill itself had 84 provisions, defining the border of a new district. As I understand it, the sponsors wanted to make sure they left some stub of a federal district for the federal government to reside in. And when you look at maps of it, it's a very irregular territory-- mostly the Mall but all these jigs and jags away from the Mall to bring in some of the main federal buildings, but not all the federal buildings. Do you think that is realistic to create a district like that for the capital city of the U.S.?"

Harris: “No, not at all, because the sole purpose of creating a federal enclave is that you are actually not completely surrounded by states, which would have tremendous authority and power. We saw that for instance if during the riots—and, again, Washington D.C. police were not willing to enforce the law in those riots--you could’ve paralyzed the federal government."

Jeffrey: “Well, it’s interesting that you bring that up. I was going to ask you about that a little later, but, you know, Joseph Story, in his Commentaries on the Constitution, when he's talking about specifically Article 1, Section 8, the part that creates a capital district, says: ‘It is not improbable that an occurrence at the very close of the revolutionary war had a great effect on the introduction of this provision into the Constitution. At the period alluded to, the Congress, then sitting at Philadelphia, was surrounded and insulted by a small but insulant body of mutineers of the Continental Army. Congress applied to the executive authority of Pennsylvania for defense but under the ill-conceived Constitution of the state at that time, the executive power was vested in a council of consisting of 13 members and they possessed or exhibited so little energy and such apparent intimidation that Congress indignantly removed to New Jersey where inhabitants welcomed them with promises of defending them. Congress remained for sometime at Princeton without being again insulted until for the sake of greater convenience they adjourned to Annapolis. The general dissatisfaction with the proceedings of Pennsylvania and the degrading spectacle of a fugitive Congress were sufficiently striking to produce this remedy. Indeed, if such a lesson could have been lost upon the people it would have been as humiliating to their intelligence as it would have been offensive to their honor.’

"That's Joseph Story explaining why the Framers of the Constitution put a clause in their creating a federal district. Do you believe that that logic still applies? That it's possible that if the capital were surrounded by a state that it couldn't be adequately protected for Congress to go about its business?”

Harris: “That's absolutely right and again we just saw it a few weeks ago when out of control crowds that were not controlled by a local jurisdiction, threatened to paralyze the government. It could happen, and that's why you need this buffer zone around the federal buildings and it's called Washington D.C. It's called our capital city, which is controlled by the Congress by the Constitution.”

Jeffrey: “Now when they actually created the federal district, they created a 10-by-10 mile squares, 100 square miles. Part of it was on the other side of the Potomac with land ceded by Virginia and part of it was land ceded by Maryland. What happened to the part of District of Columbia that Virginia gave to the capital city?"

Harris: “Before the Civil War there was a concern, because there were slave holders in that part of the capital city. They were afraid that they would be outlawed. So, they actually asked to be returned back to Virginia. So, in fact, retrocession occurred. The federal government decided it wasn't going to use that land for the capital city anymore and it did the right thing. It gave it back to Virginia."

Jeffrey: “And so there is a precedent for retrocession of territory from the capital?”

Harris: “There is a precedent. But, again, retrocession of all the lands that were included in that bill that Congress considered would probably be too much retrocession because you have to have this buffer zone. You have to have this area of control around the federal government that is not in the power of an individual state.”

Jeffrey: “And literally under the bill with those 84 sentences describing the new boundaries of the district--the remnant district that it would leave--you would walk just a block or so from the Senate office buildings and you'd be in the state of Washington, where you may go to lunch or something. You would no longer be in the capital city.”

Harris: “And that's right and honestly you would be--the police force that is not controlled by Congress would be in charge of your security. It just doesn't make any sense.”

Jeffrey: “So the capital police would be restricted essentially to the mall itself?”

Harris: “That's right. And remember under the way the Constitution is drawn the federal government controls, has ultimate control, of the District of Columbia police. Now, we have given day-to-day control over the District of Columbia. But we retain ultimate control even over that police force.”

Jeffrey: “And if they were to draw different boundaries--let's say that they widened out this remnant district by several blocks and created a--would you be willing to consider retrocession? Or do you think that DC should remain what it is?”

Harris: “No, sure, you know, if you take the areas around the National Institutes of Health, Bethesda, Maryland. You know, if that went back to Maryland that wouldn't be a big deal. There would be plenty of buffer. But you would need an adequate buffer to ensure that the federal government would not be intimidated or threatened by violent crowds or by the lack of protection from that surrounding state, if a disagreement occurred."

Jeffrey: “And that would be a compromise on retrocession of that territory back to Maryland, not on giving that territory up to become an independent state.”

Harris: “That's absolutely right. There is no justification for making it an independent state. And again if people then want move from that buffer zone, they want to move into Maryland, move into Virginia, so that they have--and I use air quotes--‘full voting rights and representation’ they're more than free to do that.”

Jeffrey: Now, part of the bill that the House passed called for expedited consideration of repealing the 23rd Amendment to the Constitution. The 23rd Amendment to the Constitution, as you know, gives people in the District the power to participate in the presidential election by having members of the Electoral College. Is it possible that given that the bill passed, if it someday passed the Senate, and was signed by a president, that we’d end up having a District of Columbia where the only people who had those electoral votes were the folks that lived in the White House with the president?”

Harris: “That's right. So, imagine if you elect a single president, there would only be one eligible voter, but you need three electors, and the president would have to be an elector of his own election. It creates just a crazy set up. This was not ready for prime time.”

Jeffrey: “Do you think that there is really any realistic possibility that the other states in the union would vote to repeal the 23rd Amendment? So, this remnant district would be represented in the Electoral College?”

Harris: “Well, I don’t even think it goes that far because I think there'd be a constitutional challenge. I think you need a constitutional amendment to create that state because you would have to negate parts of the Constitution right now and there's no way that an adequate number of states would agree to give up that kind of authority to a District of Columbia.”

Jeffrey: “But it's possible that the bill could be enacted--if the Democrats control both houses of Congress and the White House--they could enact the bill to make D.C. a state?”

Harris: “Well, yes, but you still would have an immediate Supreme Court challenge or a challenge in the court system and the plain reading of the Constitution, I think, makes this bill unconstitutional on its face.”

Jeffrey: “And do you think there are the votes on the court now to uphold that and overthrow an act of Congress creating DC as a state?"

Harris: “Look, I would hope that the nine members of the Supreme Court can read the plain language of the Constitution and realize it would be an unconstitutional attempt.”

Jeffrey: “According to the Census Bureau's 2019 estimates, Washington D.C. is only the twentieth largest city in the country. For example, it had 705,749 people last year, according to the Census Bureau. That's only about one-twelfth the size of New York City that had 8.3 million people. It's less than one-fifth the size of Los Angeles that has 3.9 million people. Do you think it's fair to the people of other cities, these 19 cities that are bigger than Washington D.C., have more people, to cut out Washington D.C. and make it a state and give them two Senators?”

Harris: “Look, I would like to have my congressional district carved out as a separate state. I'm the only Republican in the state of Maryland. A lot of people in my district think that we should have a Republican secession and get our own two senators as well. Again, this scheme is just not ready for prime time. It's unconstitutional. It's a pure political power grab for two additional U. S. senators."

Jeffrey: “They want two additional Democrats in the United States Senate?”

Harris: “That's right and it's almost guaranteed that they would be Democrats.”

Jeffrey: “And a full-time voting member of the House as opposed to the delegate that they now have?”

Harris: “That's right. But, again, the real power would be in getting those two U.S. senators and, again, you know I'd love to have two U. S. Senators in my district as well, but that's just not the way the Constitution’s written.”

Jeffrey: “And they’d have the same number of Senators as the State of California which almost has 40 million people.”

Harris: “That's right and again it would never be able to be done under the Constitution with a constitutional amendment because the states would realize that that is just a political power grab.”

Jeffrey: “Now, congressman, talking about the internal politics of Washington D.C. as they now stand, a group seeking to decriminalize psychedelic mushrooms recently submitted 35,000 signatures to get their initiative on the November ballot in D.C. It wouldn't actually legalize psychedelic mushrooms because Congress passed an initiative after D.C. legalized marijuana saying they couldn’t legalize drugs. It would just say that enforcing the law on psychedelic measures would be the lowest priority of D.C. police. If D.C. voters approve decriminalizing psychedelic mushrooms, should Congress move annul that?”

Harris: “Look, I think we should. We have ultimate authority over D.C. It's more than just psychedelic mushrooms. It's actually any of the natural psychedelics, including mescaline and other what are called Schedule 1 dangerous controlled substances. Look, there are some potential medical benefits in people with some psychiatric and psychological illnesses for the use of this, but it does not justify decriminalizing the entire class because under that initiative, under that referendum, you would make the use of that drug the lowest priority of enforcement. So, that means if you operated a motor vehicle under the influence of that the police would be ordered to make that a low-enforcement priority. That's the last thing you ever need to do. This is just a terribly bad idea. But you know we've seen this from Washington on many things, including the legalization of recreational use of marijuana.”

Jeffrey: “So, literally if this passed someone in Washington DC could buy some psychedelic fungi, get in their car, drive out to your district, which isn't very far away, being high on a psychedelic drug, endangering people in Maryland or Virginia or wherever else.”

Harris: “Well if they went into my district, we could enforce the law. But, unfortunately, because my district is close, a lot of people from my district drive in Washington D.C. Or they are tourists, there on the streets in Washington DC. We've just seen from the data from the four states, the earliest states to legalize recreational marijuana that deaths by motor vehicle go up about 20%. That's about 6,500 additional deaths nationwide if we legalize recreational marijuana. Now on top of that, what a crazy idea to legalize, for anyone, dangerous psychedelic drugs, hallucinogens, like mescaline, again, like psylocybin, which is quote ‘the magic mushroom.’ This is just a terrible idea.”

Jeffrey: “And Congress does have the constitutional authority, because it has government over the District to stop this from happening?”

Harris: “We clearly do, but the problem is that the Democrats don't want to interfere in any way with what Washington D.C. does. So, even if they thought that this was a very, very bad idea for Washington, I don't believe that Congress would take the action necessary to stop that kind of bad law.”

Jeffrey: “So, your anticipation is that Nancy Pelosi as speaker of the House would stop any effort in the House to repeal D.C.'s legalization of psychedelic drugs?”

Harris: “Yes, we saw that in committee because I offered an amendment last week and the Democrats all argued against an amendment that would disallow the ability of this referendum to go forward and go into law.”

Jeffrey: “So, they want to surround the capital of the United States and the White House with a new state that would have legalized psychedelic drugs?”

Harris: “That's right. In fact, under the current system we would be one of the drug capitals of the world. You could get recreational marijuana at every corner, psychedelic mushrooms, mescaline, whatever you want. Washington DC would be the place to get it. That's not my idea of what the nation's capital should look like."

Jeffrey: “Congressman Andy Harris, thank you very much.”

Harris: "Thank you."

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