The nationwide effort to rid public spaces of Confederate monuments has morphed into a debate over what to do with those that exist in the nation’s capital.
Sen. Cory Booker (D-NJ) announced on Wednesday that he was planning to write legislation to remove statues in the U.S. Capitol that honor the Confederacy, a move that coincided with President Trump’s defense of the country’s monuments on Twitter early Thursday morning.
“The National Statuary Hall Collection is intended to celebrate ‘illustrious’ Americans ‘worthy of… national commemoration,’” Booker said in a statement provided to The Daily Beast. “It should be a place of honor for patriots—those who have served, sacrificed, or made significant contributions to our nation’s greatness and glory. Individuals who were treasonous to the United States, who took up arms against their own country, and inflicted catastrophic death and suffering among U.S. citizens, should not be afforded such a rare honor in this sacred space.”
The bill is still being drafted, according to Booker’s office and won’t be introduced until after the August recess. But regardless of how it materializes, the process of removing the ten Confederate statues that are part of the National Statuary Hall Collection will be difficult.
An 1864 law to create the hall from then-Representative Justin S. Morrill established that each state would contribute two statues to be housed in the Capitol. In 1933, Congress authorized displaying the statues throughout the building so as to avoid cluttering in the hall which now houses 35 of the original statues. This resolution, enacted into law in 2000 also provided states with the ability to replace their statues if they chose to do so. For instance, in 2009, California swapped out its statue of minister Thomas Starr King with former president Ronald Reagan.
Congress could hypothetically eliminate all the statues representing the Confederacy from the building with new legislation like Booker’s, but it’s unclear if it could get the necessary votes.
“I can’t think of any reason why they couldn’t be removed by statute,” Josh Chafetz, a professor of law at Cornell Law School told The Daily Beast. “Problem is, Booker would have to get that statute through 2 GOP-controlled chambers and then signed by Trump (or, I suppose, get it passed by veto-proof supermajorities in both chambers).”
Chafetz pointed to the fact that there is a provision for moving the statues in the current law which “appears to allow the Joint Committee on the Library to order them moved anywhere within the Capitol,” even to a broom closet for instance. But Booker is not on that joint committee. Any effort he pushes would have to come through legislation.
And absent that, it is ultimately the jurisdiction of the states to decide what to do with the statues that represent them, according to guidelines provided by the Architect of the Capitol (PDF).
Lawmakers have considered the idea of removing Confederate statues from the capital before, notably after the shooting at an African-American church in Charleston, South Carolina, in 2015. Democrats successfully relocated a statue of Robert E. Lee in National Statuary Hall when they controlled the House during the Obama years. But other efforts have gone nowhere.
Booker’s push, which comes in the wake of a white nationalist rally in Charlottesville, Virginia, that resulted in the death of one and the injuring of 19, has a bit of steam to it, though not a critical amount as of Thursday afternoon. House Minority Leader Nancy Pelosi (D-CA) also called for the elimination of the statues and Virginia Democratic Sens. Tim Kaine and Mark Warner indicated that they are supportive of Booker’s yet-to-be-written bill.
A spokesperson for Sen. Kamala Harris (D-CA) also told The Daily Beast that she is supportive of removing Confederate monuments from the Capitol but did not specifically weigh in on the prospective legislation.
Senate Majority Leader Chuck Schumer was not as openly enthusiastic about the idea, implying that it was a distraction of sorts from the controversy surrounding Trumps sympathetic comments toward the white nationalists who had gathered in Charlottesville.
“President Trump and Steve Bannon are trying to divert attention away from the president’s refusal to unequivocally and full-throatedly denounce white supremacy, neo-Nazism, and other forms of bigotry,” Schumer said in a statement. “While it is critical that we work towards the goal of Senator Cory Booker’s legislation, we must continue to denounce and resist President Trump for his reprehensible actions.”