Can the SCOTUS undo DC statehood?

[VBM]

Let’s say that the Dems win the Senate and Presidency, so they manage to pass DC statehood. Can the conservative Supreme Court rule that it violates the Constitution to make DC a state, and therefore remove statehood from DC after it has already become a state?

[World politics is up Schmitt creek]

The Supreme Court can do anything it sees fit; it is, in fact, the only institution in the United States that can do anything it sees fit.

[Vosem]

Yes. It is in fact fairly easy to argue that the Twenty-third Amendment prohibits DC statehood (by permitting DC to do certain things "as if it were a State"; that's the exact wording).

It may be the case that Congress may be able to redefine "the District constituting the seat of Government" by legislation, but a really strong originalist might read Section 1 the way it would've been interpreted in 1961, which refers to a very specific District.

[VBM]

Wasn’t it mentioned somewhere that statehood cannot be revoked for any state unless the state wanted that?

[brucejoel99]

Wasn’t it mentioned somewhere that statehood cannot be revoked for any state unless the state wanted that?

If the Court were to just straight-up find that the granting of statehood in & of itself was unconstitutional, then that would be the end of that, previous precedent be damned.

[VBM]

Wasn’t it mentioned somewhere that statehood cannot be revoked for any state unless the state wanted that?

If the Court were to just straight-up find that the granting of statehood in & of itself was unconstitutional, then that would be the end of that, previous precedent be damned.

Isn’t unconstitutional to remove a state, or was that just a norm?

[Vosem]

Wasn’t it mentioned somewhere that statehood cannot be revoked for any state unless the state wanted that?

If the Court were to just straight-up find that the granting of statehood in & of itself was unconstitutional, then that would be the end of that, previous precedent be damned.

Isn’t unconstitutional to remove a state, or was that just a norm?

It is unconstitutional to remove a state if they are rightfully a state, but if they were never really a state in the first place their statehood could be revoked. Some really hardcore originalists have argued that West Virginia is not "really" a state, for instance.

[Pericles]

Wasn’t it mentioned somewhere that statehood cannot be revoked for any state unless the state wanted that?

If the Court were to just straight-up find that the granting of statehood in & of itself was unconstitutional, then that would be the end of that, previous precedent be damned.

Isn’t unconstitutional to remove a state, or was that just a norm?

It is unconstitutional to remove a state if they are rightfully a state, but if they were never really a state in the first place their statehood could be revoked. Some really hardcore originalists have argued that West Virginia is not "really" a state, for instance.

Didn't Barrett herself basically say that, except for West Virginia she thinks its statehood is such a 'superprecedent' that the Court can't and shouldn't overturn it. A factor which wouldn't apply with DC statehood.

[The Mikado]

Yes. It is in fact fairly easy to argue that the Twenty-third Amendment prohibits DC statehood (by permitting DC to do certain things "as if it were a State"; that's the exact wording).

It may be the case that Congress may be able to redefine "the District constituting the seat of Government" by legislation, but a really strong originalist might read Section 1 the way it would've been interpreted in 1961, which refers to a very specific District.

I really think that once DC statehood passes, repealing the 23rd Amendment shouldn't be too difficult. It's not like the GOP has any interest in giving the rump Federal District 3 electoral votes.

[brucejoel99]

Wasn’t it mentioned somewhere that statehood cannot be revoked for any state unless the state wanted that?

If the Court were to just straight-up find that the granting of statehood in & of itself was unconstitutional, then that would be the end of that, previous precedent be damned.

Isn’t unconstitutional to remove a state, or was that just a norm?

It is unconstitutional to remove a state if they are rightfully a state, but if they were never really a state in the first place their statehood could be revoked. Some really hardcore originalists have argued that West Virginia is not "really" a state, for instance.

Didn't Barrett herself basically say that, except for West Virginia she thinks its statehood is such a 'superprecedent' that the Court can't and shouldn't overturn it. A factor which wouldn't apply with DC statehood.

She did co-author a piece which noted that there are originalist arguments to think that WV was invalidly admitted as a state (among other weird conclusions), yes, but to be fair to her, the paper didn't accept those conclusions except for the sake of the hypothetical argument therein.

[Kingpoleon]

The Supreme Court can do anything it sees fit; it is, in fact, the only institution in the United States that can do anything it sees fit.

It is also the only institution that is incapable of enforcing even the slightest of its rulings, lacking the power to investigate; to fine; to prosecute; or to administer authority unto any other organization or person besides itself.

[Vosem]

Wasn’t it mentioned somewhere that statehood cannot be revoked for any state unless the state wanted that?

If the Court were to just straight-up find that the granting of statehood in & of itself was unconstitutional, then that would be the end of that, previous precedent be damned.

Isn’t unconstitutional to remove a state, or was that just a norm?

It is unconstitutional to remove a state if they are rightfully a state, but if they were never really a state in the first place their statehood could be revoked. Some really hardcore originalists have argued that West Virginia is not "really" a state, for instance.

Didn't Barrett herself basically say that, except for West Virginia she thinks its statehood is such a 'superprecedent' that the Court can't and shouldn't overturn it. A factor which wouldn't apply with DC statehood.

Yes, but this was a reply to other scholars who had pointed out that, technically, the US never recognized Virginia's secession, so Virginia technically remained a state during the Civil War, and technically no state can be partitioned against its will.

Forcibly re-amalgamating WV and VA would indeed be extremely disruptive and unpopular for all involved, and so won't happen. But in principle...

[Vosem]

Yes. It is in fact fairly easy to argue that the Twenty-third Amendment prohibits DC statehood (by permitting DC to do certain things "as if it were a State"; that's the exact wording).

It may be the case that Congress may be able to redefine "the District constituting the seat of Government" by legislation, but a really strong originalist might read Section 1 the way it would've been interpreted in 1961, which refers to a very specific District.

I really think that once DC statehood passes, repealing the 23rd Amendment shouldn't be too difficult. It's not like the GOP has any interest in giving the rump Federal District 3 electoral votes.

It would be plausible for the Court to rule that DC statehood cannot pass unless the 23rd Amendment is repealed first, though.

(And I presume the Democratic Party would resist an amendment that takes away 3 guaranteed electoral votes except as part of some bargain that gets them something else they want; as a stand-alone amendment in the world where DC statehood has already been achieved I think state-level Democratic parties would tend to resist ratification.)

[Senator Incitatus]

The Supreme Court can do anything it sees fit; it is, in fact, the only institution in the United States that can do anything it sees fit.

You forgot the military.

[True Federalist (진정한 연방 주의자)]

It's well established by the precedent of the Alexandria retrocession that Federal district need not be its maximum allowed size and that it can be shrunk. The only quasi-plausible reason SCOTUS could give to block it would be to assert that the territory surrendered to form the district can only be retroceded, but even then, if Maryland were to consent to the creation and admission of the Douglass Commonwealth, it clearly would be Constitutional. Given the solid Democratic supermajorities in both houses of Maryland's General Assembly and that it only requires three-fifths of both Houses in Maryland to override a Governor's veto, SCOTUS could at most present a minor procedural speedbump to the admission of DC if the Democrats retake the Senate.

So it might be worth getting Maryland's consent to the creation of the Douglass Commonwealth next year just to forestall a silly suit.

[Gary J]

Following on from the discussion of the constitutionality of WV being admitted as a state, Congress did not just ignore the requirement for VA to consent.

There was a pro-Union VA government which had broken away from Confederate VA. It consented to the division of the state. It was also a condition of VA being re-admitted to representation in Congress, after the civil war, that the state confirmed the consent to admit WV.

Extract from the Bills and Resolutions of the Senate, when the bill to admit WV was reported. This confirms that the pro Union VA government had given its consent.

http://memory.loc.gov/cgi-bin/query/D?hlaw:1:./temp/~ammem_l6tI::

June 23, 1862

Mr. Wade, from the Committee on Territories, reported the following bill; which was read and passed to a second reading. A Bill Providing for the admission of the State of West Virginia into the Union. Whereas, by an act of the State of Virginia, passed May thirteenth, eighteen hundred and sixty-two, entitled ''An act giving the consent of the legislature of Virginia to the formation and erection of a new State within the jurisdiction of this State,'' the people of that part of the State of Virginia including the counties of Hancock, Brooke, Ohio, Marshall, Wetzel, Marion, Monongalia, Preston, Taylor, Tyler, Pleasants, Ritchie, Doddridge, Harrison, Wood, Jackson, Wirt, Roane, Calhoun, Gilmer, Barbour, Tucker, Lewis, Braxton, Upshur, Randolph, Mason, Putnam, Kanawha, Clay, Nicholas, Cabell, Wayne, Boone, Logan, Wyoming, Mercer, McDowell, Webster, Pocahontas, Fayette, Raleigh, Greenbrier, Monroe, Pendleton, Hardy, Hampshire, and Morgan, did, with the consent of the legislature of said State of Virginia, form themselves into an independent State, and did establish a constitution for the government of the same:

[ibagli]

I guess we'd find out after they tried. The Supreme Court snuffing out an entire state would be probably the worst constitutional crisis since 1860. Maybe the other branches would roll over and comply without a fight (or the court would wait until it had a compliant regime in place), but I hope they wouldn't willingly commit suicide like that.