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quote, "to be forever ceded and relinquished to the Congress and Government of the United States in full and absolute right and exclusive jurisdiction."

That's not the Constitution I'm quoting. That's the cession act for Maryland, which is the operative legislation in answer to your question here.

In contrast, almost every State cession act or consent since that time had contained a provision that provides for reversion of the land once the Federal use of it discontinues.

And by contrast, to give you an example of such an act, let me make a nearly contemporaneous act of the State of Maryland ceding land for Fort Monroe. This is from 1821.

It provided: Should the United States at any time abandon the said lands and shoal, or appropriate them to any other purpose than those indicated in the preamble to this act, that then, and in that case, the same shall revert to and revest in this commonwealth.

Obviously, the people that ceded land to the United States in the 19th century and earlier knew how to frame a reversion provision. Maryland chose not to and instead used sweeping and unconditional language.

And I think, therefore, in the language of that cession, they invested the full and absolute right in the United States to dispose of that land as it sees it.

Now, there is one case to the contrary in the Supreme Court, S.R.A. v. Minnesota, in which the Court implied a reversion into an act of cession that didn't contain one when the Federal use of the land was discontinued.

It reasoned that such a reversion provision had to be implied, because otherwise you would have a no-man's land under neither Federal nor State jurisdiction, or else you would have Federal jurisdiction over a land that wouldn't be of any Federal use, over purely private land. And either result was unacceptable.

But I don't think that logic applies here because if the United States divests itself of the non-Federal part of the District in favor of a new State, it does not create a no-man's land or jurisdiction. It simply surrenders that land to a new State for the jurisdiction of New Columbia.

In any event, the S.R.A. case was dictum. And it involved an act of cession that I don't think contained the sweeping and unconditional language of the Maryland act of cession.

So, the answer is I don't believe that Maryland's consent would be required.

Your last two questions I'll handle as one. And they are, in a way, the most difficult to answer.

The questions were: Can the Congress impose limitations on the District as a condition for admission as a State and, if so, what kind of limitations, and can Congress rewrite the submitted constitution?

Let me answer in two parts.

No State comes into the Union as a right. The act of admission or the decision to admit is a political decision, which Congress is free to approve or disapprove as it sees fit.

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Accordingly, it can impose any conditions precedent on admission that it sees fit to impose, subject only, possibly, to two restrictions.

Article IV guarantees to the States a republican form of government. And I presume, therefore, that Congress could not require a State to adopt a monarchy or some other nonrepublican form of government.

And the other prohibitions of the Constitution would presumably also require; Congress couldn't require a State to deny Catholics the right to worship, for example.

But subject to those limitations I think Congress has an unfettered power to impose conditions precedent.

However, that doesn't mean that these conditions survive the act of admission. Whether they are binding Federal law after New Co lumbia enters the Union is a separate question.

Every act of admission since 1796 has provided that the new State enters on an equal footing with all the other States.

And in 1910 the Supreme Court ruled that the equal footing doctrine was of constitutional origin and so would apply regardless of how the act of admission was framed.

What this means is that a new State can't be subjected to any political limitations via the admission act that Congress could not enact as ordinary legislation independent of the admission act.

The 10th amendment reserves to the States various sovereign powers that are simply beyond the reach of ordinary congressional legislation.

Now, to put it differently, Congress can drive a very hard bargain indeed in admitting New Columbia. But once it's in the club it has the same rights as the other States. And Congress can't make the proponents of statehood bargain away permanently any political rights that it couldn't impinge by ordinary legislation vis-a-vis the existing States.

Now, to illustrate that let me give you three examples.

First of all, the proposed constitution, at least in its original version, subjects local judges to retention elections. Article IV, section 10, provides for periodic retention election.

If Congress as a condition precedent to admission says they don't like this condition, we want live tenure for all local judges, I think it has that power.

The District or the proponents for statehood for the District would have to amend the constitution and have it ratified to include a life-tenure provision in order to satisfy that condition precedent.

I don't think there's any question that Congress has that power.

However, once the act of admission is passed, then this limitation would no longer be binding on New Columbia as Federal law be cause the tenure of local judges is a matter reserved to the States under the 10th amendment and beyond the article I power of Congress to legislate on.

It doesn't mean that it would be invalid. It would simply only continue to be valid as a matter of State law, the New Columbia's law, and it could be amended by New Columbia as it sees fit.

In other words, the promise by proponents for statehood of New Columbia that they would provide by this provision is an enforcea

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ble promise. Congress takes it on good faith, and is stuck with it once it has admitted the State.

This, in fact, is what Arizona did. Arizona was subjected to this kind of limitation as condition precedent, said, OK, we'll abide by it, was admitted to the Union, and then reneged on its promise.

There was no enforceable Federal law in that case.

As a second example, consider a condition precedent that required or set certain safety standards for transportation run by the New Columbia State. That's a valid condition precedent. I also think it would be binding as Federal law after admission, because to the extent such public transportation involves interstate commerce it's well within Congress' legislative power under article I.

As a third example let me take the controversial one of a ban on commuter taxation.

If Congress as a condition precedent states that the new State will not be allowed to tax commuters, I believe that's a valid condition precedent.

There is some question as to whether it would be binding after admission. In my best judgment, it would be. And that's because Congress' power to legislate includes its power to legislate over the National Capital service area, the residual Federal enclave that would exist after New Columbia became a State.

And to the extent that a ban on commuter taxation is necessary and proper to protect activities in that Federal enclave, I think it's within Congress' article I legislative power.

Alternatively, Congress might condition continued payment of the Federal payment to the District on a bar on commuter taxation on the theory that the District shouldn't collect twice for providing the same services.

This is a controversial point. But I think the best-my best guess is that such a condition precedent would be binding after admission.

I think, in answering this question, I've answered the fifth one. Congress clearly has the power to rewrite the constitution. The District, the people of the District would still have to ratify it. And then whether or not the rewritten constitution would be binding after admission turns on compliance with the equal footing doctrine.

Thank you, Mr. Chairman.

Mr. FAUNTROY. And Mr.-Professor Raven-Hansen, I can't tell you how thoroughly delighted I am with the quality of your testimony, clear, to the point, and, in my view, impeccable.

May I, at this point, assure that the entire statement will be entered in to the record.

[The prepared statement of Mr. Raven-Hansen follows:)

STATEMENT OF PETER RAVEN-HANSEN

PROFESSOR OF LAW GEORGE WASHINGTON UNIVERSITY NATIONAL LAW CENTER

BEFORE THE SUBCOMMITTEE ON FISCAL AFFAIRS AND HEALTH

OF THE COMMITTEE ON THE DISTRICT OF COLUMBIA

UNITED STATES HOUSE OF REPRESENTATIVES

NINETY-NINTH CONGRESS

MAY 13, 1986

Statement of Professor Rarea-Hansen

May 13, 1986

me

The subCommittee has asked

to address five questions raised by bills providing for the admission of the non-federal part of the District of Columbia as a state of the union.

1. What are the steps Congress must take to pass a Statehood bill for the non-federal part of the District of Columbia?

The only steps clearly required by the Constitution are: (a) passage

by a simple majority of each house of Congress of a bill admitting the new state, and (b) presentment of the bill to the President, in accord with the usual Article I legislative process. 1 As noted below, the act of admission may delegate to the President the task of certifying the applicant's compliance with conditions of adnission and thus make admission effective first upon

such certification rather than upon the date of the act's enactment.2

In order to fulfill the constitutional duty of the United States to "guarantee to every State in this Union a Republican Forn of Government,

..3

however, Congress has often required certain preliminary steps.

4

None of these is hard and fast, and there has historically been considerable flexibility in form.

Congress has often begun the

process by passing enabling legislation establishing procedures for the statehood applicant to draft and ratify a proposed state constitution. When used,5 enabling legislation has contained More or less detailed

1

1.3. Const. art. IV, sec. 3 & art. I, sec.7. : Congress has evidently never refused an application for admission to statehood, although it has delayed approving such applications, and two Presidents have initially vetoed admission bills. See Davila-Colon, "Equal Citizenship, Self-Determination, and the U.S. Statehood Process:

A Constitutional

and Historical Analysis," 13 Case W. Res. J. Int’i L. 315, 317-18 & nn. (1981).

2

See Park, "Admission of States and the Declaration of Independence," 33 Tene, L. Q. 403, 405 (1960) (citing admission of Ohio as an example).

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4 The following summary of such steps is drawn from DavilaColon, supra note 1, at 315-26, and Park, supra note 2.

5

Twenty-eight states spontaneously drafted and ratified their constitutions without the aid of enabling legislation from Congress. Davila-Colon, supra note 1, at 324.

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