Posted on 09/16/2010 12:42:26 PM PDT by Uncledave
The Case for a ‘Repeal Amendment’
Randy Barnett • September 16, 2010 6:00 am
William Howell, the Speaker of the Virginia House of Delegates, and I have an op-ed in today’s Wall Street Journal making the case for a constitutional amendment giving 2/3 of state legislatures the power to repeal any federal law or regulation. Here is the wording of the Repeal Amendment:
“Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.”
As we explain:
At present, the only way for states to contest a federal law or regulation is to bring a constitutional challenge in federal court or seek an amendment to the Constitution. A state repeal power provides a targeted way to reverse particular congressional acts and administrative regulations without relying on federal judges or permanently amending the text of the Constitution to correct a specific abuse.
The Repeal Amendment should not be confused with the power to “nullify” unconstitutional laws possessed by federal courts. Unlike nullification, a repeal power allows two-thirds of the states to reject a federal law for policy reasons that are irrelevant to constitutional concerns. In this sense, a state repeal power is more like the president’s veto power.
This amendment reflects confidence in the collective wisdom of the men and women from diverse backgrounds, and elected by diverse constituencies, who comprise the modern legislatures of two-thirds of the states. Put another way, it allows thousands of democratically elected representatives outside the Beltway to check the will of 535 elected representatives in Washington, D.C.
Congress could re-enact a repealed measure if it really feels that two-thirds of state legislatures are out of touch with popular sentiment. And congressional re-enactment would require merely a simple majority. In effect, with repeal power the states could force Congress to take a second look at a controversial law.
You can read the whole thing here. (If this link is behind the subscriber wall, use the email button to send the page to yourself. You will receive an email with a link that will work for 7 days.)
Some readers may recall this was idea was one of the 10 amendments that comprised the Bill of Federalism I proposed in a Forbes.com article over a year ago. Of all those proposals, this one is the most transparent in its meaning and effect, and has the virtue of being “self-executing” in the sense that it does not rely on the judiciary to check the powers of Congress.
Not only has the idea gained the interest of the Speaker of the Virginia House of Delegate and several state legislators in Virginia, but legislators from other states have expressed enthusiasm as well. And I know at least one Congressman who would like to sponsor it in the House. So you may well be hearing more about this in the future. If you do, remember you heard it here first.
UPDATE: On Opinio Juris Julian Ku asks “If the States Can Repeal Federal Law, Can They Also “Repeal” Treaties?” The language of the Repeal Amendment adopts that of the Supremacy Clause of Article VI, which reads (with my brackets inserted):
[a] This Constitution, and [b] the laws of the United States which shall be made in pursuance thereof; and [c] all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land. . . .
So according to the Constitution, “laws of the United States” made in pursuance of the Constitution are distinct from either the Constitution itself or treaties, though all three comprise the “law of the land.”
Maybe this is why the Senators were intended to be chosen by State legislatures.
Repealing the direct election of Senators would have the effect of permitting a simple majority of States from preventing these laws they don’t want. I think that is what the original framers had in mind, not 2/3’s.
Beat me to it. I concur.
One could say that we got into the mess we are in because of the amendments voted in between 1913 and 1920 during the first wave of progressives.
This lowers the bar to passing a constitutional amendment. A very bad idea.
Yes, I'd much rather repeal the 17th, before monkeying around with this other business.
2/3rds is too much. It should be a simple majority. If 26 States do not want a federal bill, then there is no question that the bill should be repealed.
It actually would not. All this would do, is nullify any federal bill if 2/3rds of the State Legislatures agree to nullify. It doesn't change the requirement for a Constitutional Amendment.
[ 2/3rds is too much. It should be a simple majority. If 26 States do not want a federal bill, then there is no question that the bill should be repealed. ]
I like 3/5 better.
How so? It itself is a constitutional amendment. But it would empower the states by a supermajority only to veto regular congress-passed laws, not constitutional provisions.
Not sure if I support this, sounds good in principle, but may be used by liberals in the future to undermine Congress..(be careful what you wish for).
IF I were to propose an amendment it would be that all laws should have expiration dates on them.
That way congress can’t keep adding new laws and total number of laws regulating people can’t get increasingly larger as it does now.
And let’s not forget the power of those first wave Progressives came as a result of the massive wave of late 19th and early 20th Century Southern and Eastern European immigration.
People like to point out how we assimilated large numbers of immigrants before so we can do it now. But that’s a dishonest statement. Yes they assimilated culturally and linguistically but not without massively changing the political landscape of the country. The Immigration Act of 1924 was a reaction to this. That’s why the third wave of the left overturned it Immigration Act of 1965.
The grandchildren and great grandchildren of those immigrants still make up a large portion of the urban liberals to this day.
An amendment requires 2/3 of each house plus 3/4 of the states. A very high bar.
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