The Senate has passed a bill granting the District of Columbia a full voting member of Congress. The House will soon follow, and President Obama will sign the bill into law. The problem, however, is that the bill is unconstitutional, and courts will likely strike it down before it takes effect.

District residents do not have voting representation in Congress. Like several territories, the District elects a congressional delegate, but that delegate cannot vote on the final passage of bills. District residents were also not allowed to participate in presidential elections until the 23rd Amendment to the Constitution gave three electoral votes to D.C. in 1961.

The motto on the D.C. license plate is “taxation without representation.” And District residents are not wrong to express that sentiment. The District may not resemble a state in every way, but its population is larger than Wyoming and nearly as large as Vermont, Alaska, and North Dakota. It is not some newly acquired territory far away from the rest of the United States. And other countries, such as Australia, have distinct capital territories, which are granted representation in the legislature.

For all of these reasons, there is a strong case that D.C. residents should have representation in Congress. The question is how to do it.

There are three traditional, well established, and constitutional options for D.C. representation. The problem is that they are all hard to accomplish.

For many years, advocates of D.C. representation considered three means of attaining its statehood. First, Congress could admit D.C. into the United States as a state. This admission would not require a supermajority vote in Congress. Second, the Constitution could be amended to provide for D.C. representation in Congress, which would require a two-thirds vote of Congress and ratification by three-quarters of the states. Finally, D.C. residents would have representation in Congress if they merged with another state. While this would not create representatives of D.C. as its own entity, D.C. voters would nonetheless be able to cast votes for members of Congress who would represent them. The most logical choice for such a merger is with Maryland, which ceded the District in the 18th century to create the capital. This option is often called “retrocession.” It would require the consent of Congress, D.C. residents, and Maryland residents.

These are the traditional, well established, and constitutional options for D.C. representation. The problem is that they are all hard to accomplish. A constitutional amendment requires a supermajority. Retrocession to Maryland requires the consent of D.C. and Maryland, and there seems to be no appetite for that solution in either jurisdiction. Statehood does not require a supermajority, but many wonder whether D.C. could stand on its own given its limited industrial and tax base (unlike other states, it would be a central city without suburbs or rural areas). And both a constitutional amendment and statehood would run up against questions of partisan balance. The District would likely elect Democratic representatives, and Republicans would certainly object to the admission of new Democratic representatives unless a corresponding new Republican jurisdiction were created at the same time.

Left with difficult options, several advocates for D.C. representation created a novel approach that after several congresses looks likely to pass. The approach is for Congress to simply pass a bill increasing the size of the House and granting a new House seat to the District of Columbia. To address the question of partisan balance, it also adds yet another seat to the House, making 437. That second seat would go to Utah at least until the next census reapportionment, because Utah was the state that barely missed out on gaining a new seat after the last census.

The obvious constitutional objection to this approach is that the Constitution says that states should be represented in Congress. Under this plan, D.C. would not be a state.

Proponents argue, however, that there is another clause of the Constitution that gets around this objection. The Constitution grants Congress great power over Washington, D.C. The clause reads that Congress has the power “to exercise exclusive legislation in all cases” over the District. Proponents argue that this power is majestic, plenary, and allows Congress to act in all ways toward the District, including granting it representation in Congress. Even two conservative legal scholars, Ken Starr and Viet Dinh, have argued this case.

The Constitution grants Congress great power over the District. But it does not grant Congress any power to change the constitutional provision that only states are represented in Congress.

But looking at this clause more carefully, it is best understood as giving Congress the ability to rule over the District as a state government rules over a state. It does not grant Congress any power to change the constitutional provision that only states are represented in Congress. The same clause also mentions that Congress has the same power over military bases and installations. Could Congress grant a representative to Andrews Air Force Base? The reading of the district clause is a thin reed for defending the constitutionality of the bill.

The likely end to this story will be hopes for D.C. representation dashed on the steps of the Supreme Court.

John C. Fortier is a research fellow at the American Enterprise Institute and the author of several books including Absentee and Early Voting: Trends, Promises, and Perils, After the People Vote: A Guide to the Electoral College, and Second-Term Blues: How George W. Bush Has Governed. 

Image by Darren Wamboldt/The Bergman Group.