On Tap Today: The Repeal Amendment

The National Journal’s morning e-mail blast today says that the House GOP leadership has gotten on board with an initiative which could ultimately become the 28th Amendment to the U.S. Constitution…

Incoming House Majority Leader Eric Cantor, along with several of his House Republican colleagues and a number of state legislators, hold a press conference today to endorse the “repeal amendment,” a proposed addendum to the Constitution that would allow states to nullify federal regulations and statutes if two-thirds of the legislatures approved. The idea was launched in Virginia two months ago and has been “picking up steam,” says project spokeswoman Marianne Moran.

Cantor’s press conference might be overshadowed by other events today, but it’s entirely possible that the amendment might turn out to be one of the most important structural changes the country has seen in terms of the relationship between the federal government and the states.

One tenet of the Tea Party movement which has been demonized by the establishment is the pursuit of a repeal of the 17th Amendment, the one which provided for the direct election of senators rather than for them to be elected by state legislatures. As originally designed by the Founders, the Senate was to be the body representing the interests of the states themselves – with the House representing the people on Capitol Hill. In their pre-17th role, Senators were to insure that the federal government didn’t overreach into the governmental role of state governments. Freed of the legislatures as a constituency, the Senate has become less of a repository for statesmen and more of a playground for attention whores like Chuck Schumer and Lindsey Graham or corrupt dunces like Harry Reid.

But repealing the 17th Amendment is a difficult sell. The majority of the electorate is interested in maintaining its power to elect senators, and a rather esoteric discussion of our current bastardization of the Founders’ intention to use that body as a check on the federal government isn’t likely to bear fruit.

The Repeal Amendment seeks to restore that balance through another, more easily understood, means. When Congress passes an especially unpopular or unworkable law, passage of a prospective 28th Amendment would set forth a flurry of state legislative action to knock its legs out.

The proposed amendment would read 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“Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that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.”
Cantor says he’s on board for the same reasons discussed above.
“It’s time to return America to the common sense conservative principles of limited government, free enterprise, and individual responsibility. The Repeal Amendment would provide a check on the ever-expanding federal government, protect against Congressional overreach, and get the government working for the people again, not the other way around,” Cantor said in a statement. “In order to return America to opportunity, responsibility, and success, we must reverse course and the Repeal Amendment is a step in that direction.”
Rep. Bob Bishop (R-UT), another backer of the Repeal Amendment, says he’s going to introduce a bill for it in the lame-duck session just to see how much support it has – but the real action will come beginning in January. And there appears to be a large contingent of state leaders coming aboard on the proposal.
Champions of the Repeal Amendment at state levels include Virginia’s Attorney General, Tea Party favorite Ken Cuccinelli, Virginia Governor Bob McDonnell, Florida Senate President Mike Haridopolos, Utah House Speaker David Clark, South Carolina House Speaker Bobby Harrell, Indiana House Speaker Brian Bosma, Texas House Speaker Joe Straus and members from state governments in New Jersey, Minnesota and Georgia.
Another state leader who’s pushing the Repeal Amendment is William Howell, Speaker of the Virginia House of Delegates. Howell, along with Georgetown Law Center professor Randy Barnett, penned an introduction of the amendment in the Wall Street Journal on Sept. 10 outlining how it might work in practice…

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.

The Repeal Amendment alone will not cure all the current problems with federal power. Getting two-thirds of state legislatures to agree on overturning a federal law will not be easy and will only happen if a law is highly unpopular.

Perhaps its most important effect will be deterring even further expansions of federal power. Suppose, for example, that Congress decides to nationalize private pension investments. Just as it must now contemplate a presidential veto, so too would Congress need to anticipate how states will react.

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.

There are two ways to get a constitutional amendment passed. The first is through Congress, where it has to get two-thirds votes in both houses. The second involves getting two-thirds of the state legislatures to vote to call a constitutional convention. The first is preferable to the second, as once a convention is called the entire mechanism is thrown open for review and the potential for damage to be done is immense. Once the amendment has been passed, it then must be ratified by three-fourths of the states to become law.

The Repeal Amendment movement is pursuing both avenues at present, though it appears they’re further along in developing Congressional support. How far the project has moved in the two months since Barnett and Howell put it forth in the WSJ will be known shortly, as Bishop’s bill will either generate support or fail in the 112th Congress.

But since a large part of the Tea Party movement’s impetus has been putting the brakes on an obnoxious, overreaching federal government, a sentiment shared by a majority of the American people, it’s a good bet that Cantor is jumping aboard a proposal whose time may be coming soon.



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