Washington D.C. and Taxation Without Representation

Washington, D.C. has always stood apart from the rest of the United States, in that its citizens are taxed without representation in the U.S. Congress. And right now, the discussions about Washington D.C. getting statehood are being amplified. What does ‘taxation without representation’ mean? And what are the potential implications of statehood for Washington D.C.? Attorney Ben Barry of Martin, Harding & Mazzotti, LLP discusses these issues and more on WVMT.

Please give it a listen or read the transcript below.

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Interviewer 1: Joining us now from Martin, Harding & Mazzotti is Ben Barry. Welcome to the show, Ben.

Ben: Good morning. How are you?

Interviewer 1: Doing well. Listen, there’s a story right now and there’s been a lot of talk. In school, we learned how we got to be the country we are. It came about due to a number of factors, but one of the major factors was, of course, the irritation. And I’ll put it mildly, irritation of taxation without representation. Washington, D.C. has always stood apart from the rest of the United States. And there’s always been discussion about D.C. becoming a state. And right now, that voice has started to be amplified and discussions are happening right now about D.C. getting statehood. What are the potential implications that could happen if that does happen?

Ben: Well, first, I don’t think it will happen. Period. One, the Constitution, Article 1 Section 8 sets out that Congress will have exclusive authority over an area of land that is 10 miles square or presumably greater, because Washington, D.C. is now greater than that size. I think it’s something like 63 or 65 square miles. I think that the argument rallies around this, “No taxation without representation.” That rally cry doesn’t necessarily apply to people who move into areas knowing that they’re not represented and they are taxed living in the district of Washington, D.C. So, as far as an argument made by the populace that resides in Washington, D.C., I think the argument falls flat.

Interviewer 1: It’s even on their license plates. I mean, if you had a D.C. license plate, it says right on the bottom of it, “Taxation without representation.”

Ben: It does. And so, people moving into that area or people who reside there, I think do so knowingly. I think that the question really becomes an issue for… it’s kind of a battleground for Democrats and Republicans. It’s a political maneuver. And I think that’s really where the argument lies. Unfortunately, because it’s in our Constitution, I think it requires much more involvement than I think most politicians have the will for. And it ultimately isn’t, in my opinion, a galvanizing issue for enough of the population to actually gain traction in the Senate.

There has been House bills passed. This has been something that comes up over the last 55 decades or so. It’s an issue that keeps on popping up, but I just don’t think that it will have traction quite frankly.

Interviewer 1: And I gotta tell you, I’ve seen a bumper sticker, there’s sort of an alternate bumper sticker that says, “Taxation with representation ain’t so great either.” So on the issue, obviously, there’s politics involved on both sides because Washington, D.C., you know, 90% goes to the Democratic candidate, whoever it is, and less than single digits to the Republicans. It’s overwhelmingly Democratic. But I would like it to liken it to this. If Burlington decided to secede from Vermont or any city seceded from a state, a city, and I think the language is in the Constitution as mentioned, can’t just say, “Now we want to become a state.”

Ben: They cannot.

Interviewer 1: And it’s pretty clear language, right?

Ben: It is clear language. It won’t happen under any circumstance. So it doesn’t really matter who’s elected in terms of a party, but simply the United States is not going to allow city states to start popping up. So, I think that there is that other layer of argument that is, kind of, a subsidiary argument, but Washington, D.C. itself also came about by cession of lands from states.

And so, the question then becomes more if Maryland had donated land or Virginia had donated land for the purpose that was ascribed in the Constitution and that parcel of land no longer holds the same objective, does the land revert back to the state that donated it to begin with?

So, even if there is this movement to turn Washington, D.C. into a state, the question is whether or not it can actually just occupy that land that was granted for a specific purpose. I think there’s another argument to be made that the land will then revert back to the states, which in this case, is primarily Maryland. I don’t think there’s any portion of D.C. that was formerly Virginia.

So, I think there’s this other question that could be brought about in a legal argument that could waylay the whole idea, to begin with. If the Democrats are looking to seize on statehood as a way to get more votes, I think that the Republicans have another argument to be made that could destroy the whole movement, to begin with.

Interviewer 1: Now it could be accomplished through a constitutional amendment, right, which although is a very difficult, long process?

Ben: It’s an extraordinarily cumbersome process. Very rarely does it happen. And I don’t suspect that it would happen in this particular circumstance.

Interviewer 1: So, Ben, if they were to get statehood, which I realize, you know, after what you said, sounds like almost an impossibility, but if they were to get statehood, is it clear on how they would then also be represented within the Electoral College? Because I’m sure I could hear the arguments for people concerning what kind of votes are going to be coming out of this new state, but really it’s gonna come down to, especially as it impacts the presidential office, it’s going to be about how they’re represented in the Electoral College.

Ben: Well, I think that question assumes something that may not be accurate and that is once D.C. becomes a state, if it ever did, that the Electoral College would still be around at that particular time. I imagine that there would be reforms to the election process well in advance of Washington, D.C. becoming a state.

Interviewer 2: We know one thing. They would get two senators if they were a state.

Ben: That’s correct.

Interviewer 1: They would be represented much like Vermont, but the population of D.C. is still higher than the State of Vermont. So, it’s an interesting dilemma that, I mean, I can understand, I think, both sides of this argument.

Ben: There’s two sides to every argument. I think that it’s unlikely because the political will doesn’t really exist to make Washington, D.C. a state. Period. There’s more political will to choose the Electoral College or the election process more so than turning Washington, D.C. into a state. And the argument is really one and the same. The reason that anybody wants Washington, D.C. to become a state or to remain a district is specifically for the voting implications that it has.

Interviewer 1: Do you think there’s the political will to change the electoral process to allow for the popular vote to become the way that electors cast their ballots in the Electoral College? Because there is a movement right now to make that happen and I have been told and heard and read that it would not require a constitutional adjustment to make that happen.

Ben: That’s correct. And I do think that the will exists. That’s an issue, I think, that affects everyone nationally as opposed to, you know, who down in Texas cares about Washington, D.C. statehood. It’s not going to affect cattle prices necessarily. So, that I think doesn’t relate to a lot of people’s everyday lives. Switching from, for example, Electoral College process to popular vote process, that does have an impact. That has a leveling effect on a lot of things. So, I think that there’s more political will there on the national stage, especially in the Senate. Whether or not that happens, I don’t know. I think that the 2020 election may have a pretty significant impact on how people are viewing the election process and it might reinvigorate some of the sentiments that, kind of, reached a fever pitch in 2016.

Interviewer 1: Well, Ben Barry, thank you so much for the insight. We appreciate talking to you this morning. We’ll talk to you again soon, I hope.

Ben: Thank so much. Talk to you soon.

Interviewer 2: Thank you, Ben.

Interviewer 1: Ben Barry. He’s a lawyer with Martin, Harding & Mazzotti. If you need answers to your questions, check them out, 1800law1010.com.

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