Article IV, Section 3, Clause 1:

New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

The equal footing doctrine does not mean that Congress may not place any conditions in legislation admitting new states. Rather, Congress has broad power to impose conditions under its authority over federal territories,1 its enumerated powers,2 and the Admissions Clause itself. The equal footing doctrine only prohibits conditions which limit state sovereignty after admission, in areas that are “exclusively within the sphere of state power.” 3 It follows that at least two broad categories of admission conditions are constitutional notwithstanding the equal footing doctrine.

First, Congress may impose “provisions which are fulfilled by the admission of the state.” 4 For example, Congress may require the population of a territory to have a certain number of inhabitants before it seeks admission5 or that proposed state laws or constitutions meet congressional standards (and be ratified by the people of the state) to qualify for admission.6 As the Supreme Court has stated, the Admissions Clause “is not a mandate, but a power to be exercised with discretion.” 7 Congressional prerequisites for admission do not violate the equal footing doctrine because they do not bind the newly sovereign state after admission.8

Second, Congress may impose post-statehood requirements in state admission acts that would be a valid exercise of congressional power if they were subject of federal legislation after admission.9 Thus, Congress may include in an admission or enabling act regulations of interstate commerce or commerce with Indian Tribes, or regulations of federal lands within a state.10 Such provisions derive force not from their acceptance as a term of admission but from the Supremacy Clause11 and “the power of Congress extended to the subject.” 12 Because Congress’s power in these areas extends equally to the original states, such legislation is not invalid under the equal footing doctrine just because it is part of an act of state admission.

Footnotes

1

See ArtIV.S3.C2.3 Power of Congress over Territories.

2

See U.S. Const. art. I, § 8.

3

Coyle v. Smith, 221 U.S. 559, 568 (1911).

4

See id.

5

See, e.g., 1 Stat. 50, 53 (1798).

6

See, e.g., 13 Stat. 30, 31 (1864) (conditions for Nevada’s constitution); 2 Stat. 173, 174 (1802) (conditions for Ohio’s constitution); see generally Permoli v. Municipality No. 1 of City of New Orleans, 44 U.S. 589 (1845).

7

Coyle, 221 U.S. at 568.

8

See Bolln v. Nebraska, 176 U.S. 83, 89 (1900).

9

Coyle, 221 U.S. at 573–74.

10

See, e.g., Stearns v. Minnesota, 179 U.S. 223 (1900) (regulation of federal lands); United States v. Sandoval, 231 U.S. 28 (1913) (regulating commerce with Indian tribes); United States v. Chavez, 290 U.S. 357 (1933) (same); Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1, 9–10 (1888) (prevention of interference with navigability of waterways under the interstate Commerce Clause).

11

U.S. Const. art. VI, cl. 2; see ArtVI.C2.1 Overview of Supremacy Clause.

12

Coyle, 221 U.S. at 574.