As the Portland saga has dragged on, the Department of Homeland Security finally reached a deal with Oregon on Thursday evening to withdraw federal officers who have been defending the Hatfield Federal Courthouse from rioters. This is simply one step in the long fight between battling jurisdictions. While there are immediate consequences of these actions, the whole episode is representative of a broader reality.
Just one month ago, Democrats were touting statehood for the nation’s capital. Nancy Pelosi told reporters that the “deprivation of statehood is unjust, unequal, undemocratic and unacceptable.” In fact, HR 51, the Washington DC Admission Act, passed the House. However, this recent fight between federal and state officials in Portland demonstrates why that policy could be disastrous.
The federal government needs jurisdiction over its capital in order to maintain security. In defense of a capital district, James Madison wrote in Federalist No. 43 that it would not “be proper for the places on which the security of the entire Union may depend, to be in any degree dependent on a particular member of it.” States can be unreliable. This is true historically; back in 1783, Pennsylvania proved unreliable when angry protesters stormed the capital at Philadelphia. Congress, fearing for its safety, fled across the Delaware River to Princeton, New Jersey and would move around to various cities, not returning to Philadelphia for over 7 years. Just in these past few weeks, we have seen Oregon and Portland authorities active working against the federal government proving to be similarly unreliable at protecting and securing buildings where vital governmental activity takes place, such as the federal courthouse.
In an ideal situation, when there are threats to life, liberty, or property, all levels of government work together to ensure those seeking to harm the rights of others are stopped and brought to justice. As the authors of the Declaration of Independence wrote, “That to secure these rights, governments are instituted among men…” This is the purpose of government. However, that is not what we have seen many state and local government pursue in the past few months.
A big problem comes when local officials, like Minneapolis mayor Jacob Frey, order police to abandon local government buildings, like the 3rd precinct police station, and let rioters torch them. We can debate the strategy and wisdom behind such a decision by asking whether it is a good idea to let rioters overwhelm and level government buildings or whether we should, as Baltimore mayor Stephanie Rawlings-Blake did in 2015, “g[i]ve those who wished to destroy space to do that…” Regardless the outcome of the debate, since it is municipal government property that is at issue, it is easier to agree that they had the authority to make that decision. They can decide that they would rather not risk defending their property. The more difficult question comes when we are no longer dealing with property owned by the municipality. Can local governments make the decision to let federal buildings burn—particularly when federal officials are willing to defend their property?
That is what is happening in Portland. People on both sides of the aisle have criticized the Department of Homeland Security’s move into Portland, because it was against the approval of the mayor and governor. In fact, Portland’s city council passed a resolution forbidding local police from assisting federal officials. For these reasons, putting Washington DC, the seat of government, in the hands of a hostile and uncooperative state government could be quite dangerous.
It has been forgotten that Washington DC mayor Muriel Bowser made many of the same complaints and requests as Oregon, back in June. She wrote to the president “requesting that [he] withdraw all extraordinary federal law enforcement and military presence from Washington DC.”
Since, under the Constitution, the federal government has the authority “to exercise exclusive Legislation in all Cases whatsoever,” her requests had little weight. The president has command of the Washington DC National Guard and was able to continue using it as he saw fit. If Mayor Bowser were a state governor, she would have control over the National Guard and be able to deny its assistance to protect federal buildings and officials from rioters.
The Constitution requires a capital district under Congressional control. Under HR 51, for example, this district would be limited to the National Mall, White House, Capitol Building, Supreme Court building, and a few other areas. It would not even control Pennsylvania Avenue between the White House and Capitol Building. Control of this broader area is an “indispensable necessity,” Madison wrote. Allowing Washington DC to fall out of Congressional control hands its leaders the ability to wrongfully impute “awe or influence” over the federal government by denying it “protection in the exercise of its duty.”
Finally, it must be noted that granting the area new independent statehood is not the only solution to the enfranchisement problem. For some residents, moving just down the street to Maryland would not hinder the quality of life and perhaps provide more affordable housing options while also granting them the representation of a congressman and 2 senators. It is also possible that certain areas that are non-essential to the safety and security of the capital—such as predominantly residential neighborhoods near the northern and eastern borders of Washington DC and the section across the Anacostia River from the Capitol—could be retroceded back to Maryland, just as certain unused areas were retroceded back to Virginia in the 1840s. It is also necessary to remember that Washington DC is not alone in its lack of Congressional representation. Puerto Rico, Guam, American Samoa, the US Virgin Islands, and the Northern Marina Islands also have non-voting Congressional delegations. None of these territories get the benefit of electors in the electoral college, like Washington DC does thanks to the 23rd amendment.
It cannot be forgotten why Washington DC is not a state. This is not some unintended consequence; this was by design. These strong reasons date back to the revolutionary era, and recent events remind us that states are just as unreliable now as they were then. We must not look past this history lest we relearn the lessons of 1783 once again.