WASHINGTON, DC – Senator James Lankford (R-OK) today, during a Senate Homeland Security and Governmental Affairs Committee hearing, questioned a panel of witnesses on the constitutionality of making DC the 51st state. Lankford discussed the late Oklahoma Senator, Dr. Tom Coburn’s very brief remarks at the previous hearing to discuss the idea of Washington, DC, becoming a separate state. Lankford addressed his concerns with religious liberty in Washington, DC, after religious gatherings were subjected to arbitrary restrictions throughout the COVID-19 pandemic, leading to multiple lawsuits that eventually eased some of the restrictions. Last fall, Lankford joined more than 30 of his Senate colleagues to file an amicus brief supporting Capitol Hill Baptist Church’s lawsuit to challenge Washington, DC’s discriminatory restrictions on houses of worship.
Witnesses at today’s hearing included DC Mayor Muriel E. Bowser; Marc Morial, President and Chief Executive Officer of the National Urban League; Dr. Richard Primus, Theodore J. Antoine Collegiate Professor of Law at the University of Michigan Law School; Dr. Roger Pilon, Vice President for Legal Affairs at The Cato Institute; and Derek Muller, Professor of Law at the University of Iowa College of Law.
On the late Oklahoma Senator, Dr. Tom Coburn’s, thoughts on considering DC statehood
Lankford: I know you’ve been in this dialogue for a very long time and that you’ve been engaged in this as many of you have been for a very long time on this. You also know my predecessor in the last time that there was a hearing on this, Senator Coburn, when he came into this hearing, sat down and said, ‘This is a waste of time,’ and walked out.
On the viability of retrocession of DC back into Maryland and/or Virginia as opposed to separate statehood
Lankford: I want to begin with a larger question on this and that is the issue of retrocession. Obviously we’ve walked through this area before as a nation that the southern portion of the District of Columbia retroceded back to Virginia in 1846—I think just about everybody on the panel has mentioned that so far today to be able to discuss retrocession—what is the barrier to retrocession with Maryland today?
Pilon: That issue, with respect to the retrocession of Virginia in 1847/46 has never been tested. It arose in a private taxpayer suit and some 30 years later, the Court declined to address the merits because so much water had gone under the bridge and so much would have to be disturbed. Many people have questioned whether that retrocession was legitimate, including no less than President Lincoln and President Taft and others, and so it remains an open question.
On the proposed transition of the Mayor of Washington, DC, to the Governor if DC became a state
Lankford: Were you surprised at the transition of leadership that the Mayor, whoever the Mayor is at whatever time that this would, would automatically become Governor in that transition? Obviously the federal officials would have to go under an election, but at that point District leadership would become state leadership and get an automatic transition. Is that surprising to you just in the structure of it?
Bowser: We convened a constitutional convention, Senator, so over several months DC residents participated in how they would want the state government to look, and we wrote a constitution. In that constitution, we expanded democracy by adding more state legislatures, which is important, but also just converted the existing election officials to seats. And the constitution also contemplates the election of the new state representatives and the federal officials.
On religious liberty restrictions during the pandemic in Washington, DC, for religious gatherings
Lankford: Washington, DC, during the pandemic time period had the most strict religious liberty restrictions of all across the United States, with the limitations for gatherings of people of faith to be able to gather indoors. There was a lot of pushback that happened. You eventually changed that and opened that up a little bit. But it was still a very, very strict non-allowance I guess we should say for people of faith to be able to meet. Whether it was last Easter or other times to be able to gather and to be able to go through all these, just their normal faith gathering time period. You have to know that Congress overwhelming passed in 1993 the Religious Freedom Restoration Act, and it’s interesting to me during this time period and during this conversation—Delegate Norton introduced H.R. 4023, which would amend the Religious Freedom Restoration Act and would take out the applicability of that to Washington, DC—that Washington, DC, would no longer fall under the Religious Freedom Restoration Act as the rest of America would. And watching what happened for the limitation of people of faith during the time of the pandemic, I’m trying to figure out if this became a new state, the direction that this seems to be headed for people of faith to be able to live out their faith. Now, I have no belief that you’re trying to limit people from having faith in DC, but it was odd during this season of the pandemic to see such strong limits on people of faith gathering together.