Statehood is long overdue and warranted for a population that exceeds that of Vermont and Wyoming and nearly matches that of several western states. The House, in a majority partisan vote, passed a DC state bill. The Senate did not take up the bill and it is unlikely to pass it. Republicans in the Senate do not want the two additional Democratic senators that DC would bring. A subsidiary factor is that residents of Maryland and Virginia who work in DC could face a commuter tax, which would reduce incomes in Maryland and Virginia.
In the immediate future, DC should seek to extend its autonomy. In anticipation of that distant day when justice trumps political expediency and DC gains statehood, activists should seek to expand DC’s authority to govern its residents by removing or changing restrictions that were imposed as a necessary compromise to achieve limited autonomy in 1973. .
A bill before the DC Council illustrates the problem. To reduce over-incarceration in federal prisons, particularly of young black people, the bill provides that all persons under the age of 21 charged with a crime will be prosecuted in juvenile court, except where circumstances warrant that the DC attorney general is seeking a court order to send the case to adult criminal court. It’s a good idea, except it violates the Home Rule Act, which provides that the DC Council cannot pass any legislation that would alter or modify the powers of the US Attorney. Under pre-autonomy laws, the U.S. attorney can file criminal charges directly in adult court against youths 16 and older who are charged with very serious offenses. And the U.S. Attorney’s Office can charge anyone 18 or older who allegedly violates a local criminal law.
More generally, there is no good political reason for local crimes to be prosecuted exclusively by the federally appointed US Attorney and not the locally elected DC Attorney General. This authority is different from the arrangement in any of the 50 states, where the US Attorney’s office prosecutes federal crimes and the local prosecutor handles locally enacted crimes. This change would allow the local population to control basic political decisions relating to crime. For example, while local people have made clear their opposition to the death penalty, the federal government, at least under the previous presidential administration, was keen to carry out death sentences. Likewise, differences have emerged over marijuana policy between the local government and the federal government. Putting the prosecution of local crimes in the hands of a locally elected prosecutor would give DC residents more of a say in crime-fighting policies.
A revision to the Home Rule Act could also give exclusive control of DC’s budget to the locally elected government. The Home Rule Act provides that Congress has ultimate and exclusive control over DC’s budget. The situation is confusing due to two conflicting court decisions relating to the DC Budget Autonomy Act passed by the DC Council several years ago. A federal district court ruled that the local act, giving final authority over locally collected revenues to the DC Council, violated the Congressional Autonomy Act and the federal Antideficiency Act (which prohibits federal governments and DC to expend funds not appropriated by Congress) and was therefore invalid and unenforceable. A subsequent DC Superior Court decision affirmed that the budget law was consistent with these federal laws. Neither decision has been appealed. The DC Council and Congress acted as if each had the final say on DC’s budget. The problem is simmering, unresolved. This potential conflict could be resolved if Congress amended the Home Rule Act and allowed local government full control of its locally collected budget and the final decision on how tax revenues imposed locally on DC residents are spent.
Another salutary change to the Home Rule Act would allow the mayor to appoint local judges with the approval of the DC Council rather than requiring a presidential nomination with the consent of the Senate. Although presidential nominations over the past few years have been strong, the Senate has not been diligent or responsive to the confirmation process, resulting in extended vacancies in the DC Superior Court and the DC Court of Appeals. DC, leading to massive delays in resolving cases and charges against judges in the seat. There is no valid political reason to involve the federal government in the selection of local judges. In all 50 states, the selection of local judges is handled locally, either by election or appointment. Local appointment would not reduce the quality of the local justice system and would likely eliminate the extended vacancies that have such a deleterious effect on justice for DC residents.
The compromises that were necessary to get the Home Rule Act passed are no longer necessary or beneficial. The performance of the DC government over the past 50 years, and especially over the past decades, has demonstrated that it is well equipped to manage its own affairs, free from federal government control or oversight. If statehood is not possible now, Congress should quickly review and remove many of the Home Rule Act’s limitations so that DC residents can better control their own governance.