9.24 Myths about the District of Columbia

Apparently thinking that only states can belong to interstate compacts, William Josephson, a New York attorney, complained in 2022 about the District of Columbia becoming a member of the National Popular Vote Interstate Compact:

“No exercise by Congress of its generalized power to legislate for the District could make the District a state for purposes of the Compact Clause.”[540]

Josephson’s only authority for this asserted limit on Congress’ power is a citation to Article I, section 8, clause 17 of the Constitution, which states:

“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.” [Emphasis added]

We fail to discern any limitation on Congress’ power involving interstate compacts in this provision of the Constitution.

In any case, the District of Columbia has been a member of numerous interstate compacts—both before and after ratification of the 23^rd Amendment in 1961 and before and after enactment of the District of Columbia Home Rule Act of 1973.

The Council of State Governments lists 27 interstate compacts to which the District of Columbia is a party.[541] Examples include, but are not limited to, the:

• Potomac Valley Compact (1940)
• Civil Defense and Disaster Compact (1954)
• Compact for Education (1984)
• Interstate Compact on the Placement of Children (1989)
• Multi-State Lottery Agreement (1988)
• National Popular Vote Compact (2010).

Many interstate compacts include entities other than states, such as the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, and various provinces of Canada.

For example, the Agreement on Detainers[542] includes 49 states, the District of Columbia, Puerto Rico, and the Virgin Islands. Several provinces of Canada are members of the Northeastern Interstate Forest Fire Compact.[543]

Footnotes

Prior to 1973, it was customary for Congress to enact interstate compacts on behalf of the District of Columbia.

However, in the District of Columbia Home Rule Act of 1973, Congress delegated its authority to pass laws concerning the District to the Council of the District of Columbia in all but 10 specific areas listed in section 602(a) of the Act.[544]

The power to enter into interstate compacts was not one of the 10 specific areas listed in section 602(a).

Accordingly, the District of Columbia Council has entered into numerous interstate compacts since 1973.

For example, the Council entered into the Interstate Parole and Probation Compact[545] in 1976 (three years after enactment of the Home Rule Act). In 2000, the Council entered into the Interstate Compact on Adoption and Medical Assistance.[546] In 2002, the Council entered into the Emergency Management Assistance Compact.[547]

In 2010, the District of Columbia approved the National Popular Vote Compact.[548]

Footnotes

This myth apparently arises because of the appearance of the word “Congress” in the 23^rd Amendment to the U.S. Constitution (ratified in 1961):

“Section 1. The District constituting the seat of government of the United States shall appoint in such manner as the Congress may direct:

“A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a state, but in no event more than the small state; they shall be in addition to those appointed by the states, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a state; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.

“Section 2. The Congress shall have power to enforce this article by appropriate legislation.” [Emphasis added]

Of course, the word “Congress” also appears in Article I, section 8, clause 17 of the Constitution concerning the enumerated powers of Congress in connection with the District of Columbia:

“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….”

After ratification of the 23^rd Amendment to the Constitution in 1961, Congress enacted a law establishing the winner-take-all method of awarding the District of Columbia’s electoral votes (which, at the time, was the method used by all 50 states).

The winner-take-all method for awarding the District of Columbia’s electoral votes is currently contained in section 1-1001.10(a)(2) of the D.C. Code:

“The electors of President and Vice President of the United States shall be elected on the Tuesday next after the 1^st Monday in November in every 4^th year succeeding every election of a President and Vice President of the United States. Each vote cast for a candidate for President or Vice President whose name appears on the general election ballot shall be counted as a vote cast for the candidates for presidential electors of the party supporting such presidential and vice-presidential candidate. Candidates receiving the highest number of votes in such election shall be declared the winners.” [Emphasis added]

In the District of Columbia Home Rule Act of 1973, Congress delegated its authority to pass laws concerning the District to the District of Columbia Council in all but 10 specific areas listed in section 602(a) of the Act.[549]

Election law is not one of the 10 specifically excluded areas in section 602(a) of the Home Rule Act.

Moreover, section 752 of the Home Rule Act explicitly recognizes the authority of the District of Columbia Council concerning elections:

“Notwithstanding any other provision of this Act [Home Rule Act] or of any other law, the Council shall have authority to enact any act or resolution with respect to matters involving or relating to elections in the District.”[550] [Emphasis added]

Therefore, the District of Columbia Council may change section 1-1001.10(a)(2) of the D.C. Code establishing the winner-take-all rule as the method for awarding the District’s electoral votes.

In 2010, the District of Columbia approved the National Popular Vote Compact.[551] The Council had the power to do this because Congress had specifically chosen to delegate its power over elections to the Council.

Footnotes

Because the District of Columbia is not a state, the question has been raised concerning whether it would be bound by an interstate compact in the same way that a state is.[552]

Section 302 of the District of Columbia Home Rule Act states:

“Except as provided in sections 601, 602, and 603, the legislative power of the District shall extend to all rightful subjects of legislation within the District consistent with the Constitution of the United States and the provisions of this Act subject to all the restrictions and limitations imposed upon the States by the tenth section of the first article of the Constitution of the United States.” [Emphasis added]

Section 10 of Article I of the U.S. Constitution contains numerous restrictions on states. In particular, the Impairments Clause states:

“No State shall … pass any … Law impairing the Obligation of Contracts.”

The Impairments Clause of the U.S. Constitution prevents a state from violating the terms of an interstate compact into which it has entered.

Section 302 of the Home Rule Act explicitly applies the Impairments Clause to the District of Columbia, thereby permitting the District to bind itself to a compact’s terms in the same manner as a state.

The Impairments Clause is discussed in greater detail in connection with the National Popular Vote Compact in section 9.25.

Footnotes

The enactment of the National Popular Vote Compact in the District of Columbia in 2010 was governed by the District of Columbia Home Rule Act of 1973.[553]

Under the Home Rule Act, Congress delegated its plenary authority to pass laws concerning the District regarding a wide range of matters (including elections) to the District of Columbia Council.

Section 102 of the Act states:

“Subject to the retention by Congress of the ultimate legislative authority over the nation’s capital granted by article I, 8, of the Constitution, the intent of Congress is to delegate certain legislative powers to the government of the District of Columbia….” [Emphasis added]

Section 601 provides:

“Notwithstanding any other provision of this Act, the Congress of the United States reserves the right, at any time, to exercise its constitutional authority as legislature for the District, by enacting legislation for the District on any subject, whether within or without the scope of legislative power granted to the Council by this Act, including legislation to amend or repeal any law in force in the District prior to or after enactment of this Act and any act passed by the Council.”

The District of Columbia Council gave its final approval to the bill (B18-0769) on September 21, 2010. Bill B18-0769 contained the following provision:

“This act shall take effect following approval by the Mayor (or in the event of veto by the Mayor, action by the Council to override the veto), a 30-day period of Congressional review as provided in section 602(c)(l) of the District of Columbia Home Rule Act, approved December 21 1973 (87 Stat. 813; D.C. Official Code § l-206.02(c)(l)), and publication in the District of Columbia Register.” [Emphasis added]

On September 22, 2010, Tara Ross, a lobbyist against the National Popular Vote Compact who works closely with Save Our States, wrote in the National Review:

“And so the dominoes continue to fall. The D.C. Council yesterday approved the National Popular Vote plan that has been pending before several state legislatures. D.C.’s approval comes less than two months after Massachusetts approved the plan. Two procedural steps remain before NPV is officially enacted in D.C.: The mayor must sign the legislation and Congress has 30 days to review it. If these two hurdles are overcome, then D.C.’s approval will bring the total number of entities supporting the bill to seven: Hawaii, Illinois, Maryland, Massachusetts, New Jersey, and Washington.”[554] [Emphasis added]

Ross then issued a call to action:

“The Council’s action gives constitutionalists in both parties an excellent opportunity to highlight their allegiance to the Constitution during this election season. Constitutionalists in the House and Senate should sponsor resolutions of disapproval if and when NPV is signed by D.C.’s mayor.”[555] [Emphasis added]

Ross’ call to action to “constitutionalists in the House and Senate” to “sponsor resolutions of disapproval” is based on the fact that a single member of the U.S. House of Representatives or a single member of the U.S. Senate may introduce a joint resolution to disapprove any action of the District of Columbia Council.

If the committee to which a disapproval resolution has been referred has not reported the disapproval resolution by 20 calendar days after its introduction, it is in order for a single member to make a motion on the floor to discharge the committee.[556]

A single member’s motion on the floor to discharge the committee is “highly privileged,” anddebate on the motion to discharge is limited to one hour.

Note also that a motion by a single Senator to discharge a disapproval resolution from committee is not subject to a filibuster in the Senate.

Thus, a motion to discharge the House or Senate committees of a resolution disapproving of an action of the District of Columbia Council will receive an expeditious vote on the floor of the House or Senate.

In particular, a vote on the floor is ensured, regardless of whether there is majority support for the disapproval resolution in the relevant committee or subcommittee and regardless of whether the leadership of the House or Senate wishes the question to come to a vote.

After the motion to discharge is agreed to on the floor of the House or Senate, debate on a resolution of disapproval itself is limited to 10 hours.

Thus, a resolution disapproving of an action of the District of Columbia Council is assured an expeditious vote on the floor of the House or Senate.

The vote on a resolution of disapproval is not subject to a filibuster in the Senate.

In short, a single member of the House or a single member of the Senate can, without the support of the subcommittee or committee involved, and without the support of the leadership of the chamber, force a vote on the floor of a resolution disapproving of an action of the District of Columbia Council.

The procedure for congressional consideration of an action of the District of Columbia Council is contained in section 604 of the District of Columbia Home Rule Act of 1973.

“This section is enacted by Congress

“(1) as an exercise of the rulemaking power of the Senate and the House of Representatives, respectively, and as such these provisions are deemed a part of the rule of each House, respectively, but applicable only with respect to the procedure to be followed in that House in the case of resolutions described by this section; and they supersede other rules only to the extent that they are inconsistent therewith; and

“(2) with full recognition of the constitutional right of either House to change the rule (so far as relating to the procedure of that House) at any time, in the same manner and to the same extent as in the case of any other rule of that House.

“(b) For the purpose of this section, ‘resolution’ means only a joint resolution, the matter after the resolving clause of which is as follows: ‘That the ___ approves/disapproves of the action of the District of Columbia Council described as follows: ___, the blank spaces therein being appropriately filled, and either approval or disapproval being appropriately indicated; but does not include a resolution which specifies more than 1 action.

“(c) A resolution with respect to Council action shall be referred to the Committee on the District of Columbia of the House of Representatives [now the House Committee on Oversight and Government Reform], or the Committee on the District of Columbia of the Senate [now the Senate Committee on Homeland Security and Governmental Affairs], by the President of the Senate or the Speaker of the House of Representatives, as the case may be.

“(d) If the Committee to which a resolution has been referred has not reported it at the end of 20 calendar days after its introduction, it is in order to move to discharge the Committee from further consideration of any other resolution with respect to the same Council action which has been referred to the Committee.

“(e) A motion to discharge may be made only by an individual favoring the resolution, is highly privileged (except that it may not be made after the Committee has reported a resolution with respect to the same action), and debate thereon shall be limited to not more than 1 hour, to be divided equally between those favoring and those opposing the resolution. An amendment to the motion is not in order, and it is not in order to move to reconsider the vote by which the motion is agreed to or disagreed to.

“(f) If the motion to discharge is agreed to or disagreed to, the motion may not be renewed, nor may another motion to discharge the Committee be made with respect to any other resolution with respect to the same action.

“(g) When the Committee has reported, or has been discharged from further consideration of, a resolution, it is at any time thereafter in order (even though a previous motion to the same effect has been disagreed to) to move to proceed to the consideration of the resolution. The motion is highly privileged and is not debatable. An amendment to the motion is not in order, and it is not in order to move to reconsider the vote by which the motion is agreed to or disagreed to.

“(h) Debate on the resolution shall be limited to not more than 10 hours, which shall be divided equally between those favoring and those opposing the resolution. A motion further to limit debate is not debatable. An amendment to, or motion to recommit, the resolution is not in order, and it is not in order to move to reconsider the vote by which the resolution is agreed to or disagreed to.

“(i) Motions to postpone made with respect to the discharge from Committee or the consideration of a resolution, and motions to proceed to the consideration of other business, shall be decided without debate.

“(j) Appeals from the decisions of the chair relating to the application of the rules of the Senate or the House of Representatives, as the case may be, to the procedure relating to a resolution shall be decided without debate.” [Emphasis added]

The National Popular Vote Compact was signed by Mayor Adrian Fenty on October 12, 2010.[557]

On October 18, 2010, the bill was transmitted to the Senate Committee on Homeland Security and Governmental Affairs and the House Committee on Oversight and Government Reform. In the Senate, it was referred to the Subcommittee on Oversight of Government Management, the Federal Workforce, and the District of Columbia. In the House committee, it was referred to the Federal Workforce, Postal Service and the District of Columbia Subcommittee.

On October 22, 2010, the bill was published in the District of Columbia Register.[558]

Despite Ross’ call to action to “constitutionalists in the House and Senate” to “sponsor resolutions of disapproval,” not a single member of either the House or Senate introduced a resolution of disapproval or a motion to discharge the committees.

All of the requirements of the District of Columbia Home Rule Act of 1973 concerning congressional consideration were completed on December 7, 2010, and the National Popular Vote Compact became District of Columbia law number 18-274.

Representative Chellie Pingree (D–Maine) made the following remarks on the floor of the U.S. House of Representatives in December 2010:

“Madam Speaker, I rise today to recognize and congratulate the District of Columbia for its recent enactment of the National Popular Vote bill, which would guarantee the presidency to the candidate who receives the most popular votes in all 50 states and the District.

“Just a few weeks ago, Mayor Fenty signed this important legislation, which was passed by unanimous consent by the D.C. Council. National Popular Vote is now law in 7 jurisdictions, and has been passed by 31 legislative chambers in 21 states.

“The shortcomings of the current system stem from the winner-take-all rule. Presidential candidates have no reason to pay attention to the concerns of voters in states where they are comfortably ahead or hopelessly behind. In 2008, candidates concentrated over two-thirds of their campaign visits and ad money in just six closely divided ‘battleground’ states. A total of 98 percent of their resources went to just 15 states. Voters in two-thirds of the states are essentially just spectators to presidential elections.

“Under the National Popular Vote, all the electoral votes from the enacting states would be awarded to the presidential candidate who receives the most popular votes in all 50 states and D.C. The bill assures that every vote will matter in every state in every Presidential election.

“I look forward to more states, all across the country passing this important piece of legislation.”[559]

Congress may explicitly or implicitly consent to an interstate compact (section 5.19). As the U.S. Supreme Court wrote in Virginia v. Tennessee in 1893:

“Consent may be implied, and is always to be implied when Congress adopts the particular act by sanctioning its objects and aiding in enforcing them.”[560]

Footnotes