Described here by Randy Bartlett of Georgetown University Law Center and William Howell, the Speaker of the Virginia House of Delegates, the “Repeal Amendment” would change the US Constitution to allow a 2/3rds majority of states to repeal a federal law or regulation. It has apparently gotten the support of the incoming House Majority Leader, Eric Cantor.
At first blush, I’m in favor of that. A law or regulation that inspires the ire of both legislative houses of 34 or more states is reviled enough that it doesn’t seem undemocratic to me to add this as a way to repeal such a law. But I may be missing some unintended consequences, so my approval is conditional only.
Seems kinda redundant. We already have two legislative houses that represent the states in varying proportions and can repeal federal legislation. If people don’t like the laws the legislature is passing, they can vote in new federal representatives. Why add a second mechanism to do the same thing?
The 34 least populous states represent something like 30% of the population. I can’t say I’m real anxious to codify yet another mechanism in the Constitution for giving N. Dakota and Wyoming voters far more say in the federal gov’t then those in Texas and California.
We elect state legislators to consider and enact laws which cover the interests of the individual state. This is a necessary and useful provincialism. But the narrow interests of each state don’t entirely mesh with broad federal or international concerns legislated by the US Congress, and the state congresses are neither responsible for such broad considerations nor given the range of powers necessary to properly discharge such responsibilities.
Why then give line item veto power to the states? The amendment seems like a power shift away from the accountable bodies rather than the strengthening of democracy intended (apparently) by its proponents.
I was thinking of it more as a step back from the ever-growing federal power and a step towards the smaller, less powerful federal model that the Founders envisioned.
Because the bar to repeal a law, once passed, is higher than what it took to pass it in the first place.
Hmmm. Good point here. The Senate was supposed to strike this balance between states and overall population, with the House more responsive to people, period, and the Senate more responsive to the concerns of the states.
This change would tilt that balance even further towards the small states, and you’re right – I hadn’t considered that point.
Why would we want to give states a line-item veto, which could conceivably be used to beat up on other states?
Let’s say a transportation reauthorization bill gets signed into law which contains a formula for distributing highway funds among the states. Let’s say that California and Texas come out particularly well-funded in this act, perhaps because of the growing populations and notorious traffic problems in those states.
Are we really ready to accept that 34 states, jealous of the needs of those two other states, could nix the specific provisions of the formula grant program to eliminate additional, justified spending in just two states? Perhaps so the spoils could be spread around to those smaller, “less deserving” states?
We already have a federal system that gives great deference to the interests of states in crafting legislation. Expanding that principle further would have unimaginable consequences in fueling state-against-state rivalries, especially pitting numerous small states against few large ones. No thanks.
But I can’t help but wonder, what issue is this proposal meant to tackle that hasn’t been tackled by federal representatives? What public policy issue has been decided by legislation or regulation to which 2/3rds of the states are so adamantly against? I’m coming up empty.
So far, the only real argument in favor appears to be that the Founders would have approved of it.
Well, so what? The founders also approved of the Electoral College, because they thought the common man was a doofus. Fuck 'em. In any event, if the founders wanted a repeal amendment they would have written one.
State legislatures are uniformly corrupt and inept. Even more corrupt and inept, in fact, than the national legislature. Fuck them too.
And if they had wanted a Thirteenth, Fourteenth, Fifteenth, and Sixteenth Amendments, they would have written them. I assume you’ll be supporting their repeal?
Flawed argument. RNATB isn’t saying that the wishes of the Founders are paramount - he is pointing out that your reliance on those wishes might not lead to the result you argue. In fact, he goes out of his way to point out ways he feels the Founders were incorrect, such as the electoral college.
My concern is that it dramatically shifts power towards the rural parts of the country, for two reasons.
The first has been pointed out - rural states will have disproportionate influence, much as they do in the Senate, since each state has equal “power” under this amendment.
The second is that in each state the make-up of the state legislature is also shifted towards the rural parts of the state, due to similar issues re: apportionment. This could perhaps be ameliorated by making the state resolutions subject to a governor’s veto.
In the end, however, my biggest concern might be that it would lead to reactionary government, and thwart the deliberative nature of the legislative process. It would also make it nearly impossible to pass unpopular but necessary legislation.
I guess I tend to think that there is a reason we are a representative democracy rather than a direct one.
What villa said. I’m not saying that any amendments the Founders didn’t think of shouldn’t be in there. I’m saying that if the point of an amendment is to bring us closer to their vision you’d better be damn sure that was their vision.
To me, the whole thing looks like a trick to get around the requirement that three quarters of state legislatures ratify an amendment. Messrs. Barnett and Howell appear to believe that it will only apply to federal statutes, but the “provision of law” wording sounds like it’s meant to encompass case law, too.
The states want the power to overturn federal law? Wasn’t Congress’ inability to enforce its own laws one of the main reasons the Articles of Confederation was scrapped and replaced with the Constitution?
I don’t think the Founders would have supported it. It seems like an attack on federalism, by giving the states power over every legislative decision, even powers that are right now reserved to the federal government.
Yes, i agree his argument about the electoral college suggests that the Founders’ wishes are not paramount.
But I cannot parse “In any event, if the founders wanted a repeal amendment they would have written one,” into making that argument as well. No matter how I read that sentence, it suggests that there is some inference to be gained by the lack of an earlier Repeal Amendment.
Well… yes. But since the federal scope of power is so dramatically enlarged from the Founders’ days, I view it as somewhat of a justified attack – unrolling a bit of the power that the federal government has garnered for itself over the years.
I think that should be read in light of your comments. In particular:
It was you making the argument that a good thing about this Amendment was that it was in line with the Founders’ intentions. RNATB’s response was that (a) the Founders’ intentions aren’t that important, because they were dumb on stuff like the Electoral College (and IMHO that whole slavery malarkey) and (b) even if those intentions are important, has it been in line with their intentions, they could have added it in the first place, which they didn’t.
Why don’t we just disband Congress entirely and bring the state legislatures together to vote on federal laws, appropriations, treaty ratifications, appointments, etc., in the first place?
Because they’re state legislatures, elected by the people of each state to take care of state-level concerns.
Let’s say that Congress gets rid of DADT and allows gays to serve openly in the military. Then a bunch of state legislatures get mad and vote to repeal it. Now you have a bunch of (not necessarily all) state legislatures directing the armed forces of the United States on their enlistment policies, as well as interfering in Congress’ explicit power “to raise and support Armies.”
Suppose 34 state legislatures decided they didn’t want Nancy Pelosi to be third in line for the presidency and voted to repeal the Presidential Succession Act of 1947. What’s to stop them?
So, once again – what are these issues on which 2/3rds of the states would likely agree that the Federal government has overstepped its bounds?
The only recent issue I can think of that would be a real candidate for this repeal procedure would be the Kelo case as decided by the Supreme Court, however, judicial opinions are not included in this constitutional amendment.
My take is that the proposed amendment is very similar to the amendment process, itself. If a piece of federal legislation is so onerous that this amendment came into play, then an amendment on that particular legislation would accomplish the same thing, and be just about as easy/difficult to enact. The only real difference is that legislatures will be much more willing to use this amendment (thus not altering the actual constitution) rather than the existing amendment process. It basically creates an alternate means of “amending” the constitution that people will be less reluctant to use. Not a good idea, IMO.
If State legislatures were equally representative of total state population, you might find a way around the 34 State rule.
Since they aren’t I don’t really see a way to tie in population-governing bodies of the State to a 2/3 vote.