Great Idea — A Constitutional Amendment Allowing States To Repeal Federal Laws And Regulations

At the Volokh Conspiracy, Professor Randy Barnett links to an oped he co-wrote with William Howell, the Speaker of the Virginia House of Delegates, regarding a proposed Repeal Amendment that would proved for the repeal of any federal law or regulation on a vote of 2/3 of the state legislatures.  The proposed text is as follows:

Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.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 of now, the only route available to the states for overturning federal laws and regulations is a constitutional amendment.  This is not only very difficult; it also requires more or less permanent changes to the text of the Constitution.  Given the manner in which some Judges and Justices interpret the Constitution, text changes can easily lead to unpredictable results.  Moreover, fighting about language is likely to make passing of most proposed textual amendments all but impossible, especially given the likelihood that certain Judges and Justices can be expected to interpret the new text in a manner unforseen by its proponents.

Getting two-thirds of state legislatures to overturn a federal law would not be easy, but it would be easier than getting agreement on new language to be forever enshrined in the Constitution.  Moreover, with a 2/3 disapproval requirement, the power would only be exercised if a law or regulation is very unpopular among a broad swath of states.  That would provide a check on federal power — especially expansions of power, such as the Obamacare takeover and individual mandate — without unduly undermining the general supremacy of federal law.

This Repeal Amendment is really an excellent idea.  It would return to the states some small measure of the power that has been taken from them by federal encroachments over the past several decades.  As the authors note:

The Repeal Amendment would help restore the ability of states to protect the powers “reserved to the states” noted in the 10th Amendment. And it would provide citizens another political avenue to protect the “rights . . . retained by the people” to which the Ninth Amendment refers. In short, the amendment provides a new political check on the threat to American liberties posed by a runaway federal government. And checking abuses of power is what the written Constitution is all about.

Amen to that.

Published in: on September 16, 2010 at 1:18 pm  Leave a Comment  

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