The good in Governor Greg Abbott’s constitutional amendments

posted at 6:31 pm on January 10, 2016 by Taylor Millard

There are some really good things in Texas Governor Greg Abbott’s proposed nine new amendments to the U.S. Constitution. Ed’s given some thought on it, but there’s a ton to unpack on this. The push for an Article V convention has been getting a lot of support, including Florida Senator Marco Rubio endorsing it in USA Today. But Abbott took it a step further by actually making suggestions on what he thinks should be added to the Constitution. One thing which was really important in Abbott’s “Restoring The Rule Of Law” proposal is the governor’s belief the Constitution, as it is, is far from broken, but needs some fixing.

What is broken is our Nation’s willingness to obey the Constitution and to hold our leaders accountable to it. As explained in the following pages, all three branches of the federal government have wandered far from the roles that the Constitution sets out for them. For various reasons, “We the People” have allowed all three branches of government to get away with it. And with each power grab the next somehow seems less objectionable. When measured by how far we have strayed from the Constitution we originally agreed to, the government’s flagrant and repeated violations of the rule of law amount to a wholesale abdication of the Constitution’s design.

Abbott’s The Texas Plan is a mix of populism and intellectualism, which keeps him from going into the “crackpot” category. Abbott is an extremely smart guy who knows how important it is to propose actual solutions instead of just railing against government. His delivery can be as sharp as Ted Cruz, but also as substantive as Rand Paul or Utah Senator Mike Lee. Abbott’s speech at the Texas Public Policy Foundation (which is a very well-respected institution in Texas) proves he knew it was important to show this was a serious plan and not done to just raise money for his next campaign. The fact he was willing to put together a 92 page document (with footnotes) shows Abbott wants this plan to be seriously considered. The substance of Abbott’s proposal shows his willingness to put forth a plan he believes will limit the federal government’s overreach. The other thing which is great is Abbott’s willingness to say, “Hey, look this over, and let me know what you think.” It means Abbott will listen to criticisms of his proposal (which I will do in another post).

One of the best proposed amendments is Abbott’s desire to require Congress to balance its budget. Federal spending is out of control and the almost $19T in debt makes me shudder. If state governments are required to balance their budgets why can’t the federal government be required to balance its budget? The only way the U.S. is going to reduce its debt is to be willing to stop the leviathan and fight it like Perseus does the serpent Cetus or Thor’s final battle with Jormangandr. Abbott believes The Texas Plan would end up requiring Congress to do something it doesn’t want to do, by cutting spending (emphasis mine).

If Congress failed to meet its balanced-budget obligations, the Texas Plan would automatically freeze all federal spending (except for payments on outstanding debt) at 90% of the preceding year’s levels.

The Texas Plan also would specify how Congress must balance its budget— namely, by cutting spending. After all, the federal government already takes 18% of the Nation’s GDP in the form of taxes; there is no justification for taking even more of today’s earnings to pay for yesterday’s excesses. Therefore, the Texas Plan would prohibit Congress from taxing its way to a balanced budget. In particular, the Texas Plan would freeze the federal government’s income as a proportion of GDP at today’s 18% level.

Abbott’s inclusion of the prohibiting Congress from raising taxes is the key factor in this proposal. The federal government decided to raise taxes in 1990 because it didn’t want to cut spending. Abbott saying his plan would keep the government from raising taxes to balance the budget is fantastic. The only concern is Abbott adding, “The only exception would be for a national emergency, like a war or national-security crisis.” The federal government could use the “national emergency” phrase as a way to increase spending, and never stop. But this definitely adds financial discipline on D.C. and it’s fantastic Abbott wants a balanced budget.

The other great parts of Abbott’s proposal are the restrictions on administrative agencies. The governor is absolutely correct in saying agencies like the IRS, EPA, and HHS are out of control. There are far too many government agencies, and they need to be cut back as a way to decrease spending. Alphabet agency regulations are a way for Congress and the President to shirk responsibility by saying, “Well we had nothing to do with it,” when in reality, they had EVERYTHING to do with it by allowing the agency to exist (or be funded) at all. Abbott believes a constitutional amendment would put the onus back on Congress and the President to do policy.

The Texas Plan would revert the lawmaking process to the one enshrined in the Constitution. Under current law, administrative actions like the Clean Power Plan have legal force unless they are rejected by Congress or the courts. By contrast, under the Texas Plan, administrative actions like the EPA’s would have no binding legal force unless they are approved by Congress. The Texas Plan thus prevents Congress from delegating its lawmaking powers to administrative agencies and from deputizing bureaucrats as law-writers. By elevating the Constitution’s lawmaking procedures over the administrative convenience of theorists like Landis, the Texas Plan vindicates the rule of law.

It’s also great Abbott wants to keep federal agencies from getting involved in state issues. He uses the awesome example of Diane Monson, a California woman who was growing her own medical marijuana for her own use, who ended up having all SIX of her marijuana plants destroyed following a DEA standoff. The Texas Plan may keep situations like the Bundy ranch or the situation with the Hammonds in Oregon from ever happening. It’s an example of fighting against the leviathan of government and allowing people to do what they want to do as long as they aren’t hurting, killing, or stealing from anyone. It would also keep Congress from passing laws they have no business passing, and allowing states to regulate certain things as they see fit. This would also tie into the balanced budget amendment, because it would mean the federal government would have to gut itself if they aren’t allowed to regulate things in the states. It would force the federal government to focus only on a limited amount of items, including national defense and border security, and not much else. Social Security, Department of Education, and Medicare/Medicaid would probably still exist, but Abbott may be hoping for a more “block grant” federal policy. It’s not a bad idea, as long as Congress is willing to be fiscally sound.

Abbott’s proposal isn’t a cure-all and some of his ideas may end up limiting freedom more than helping it (more on that later). But it’s a good start if people and states are actually willing to take a serious look at it. It’s also important to remember this might not go anywhere anyway. In fact, it would be almost unheard of if it did. The Federal Register points out none of the current amendments have ever been done by a constitutional convention. This means Abbott and those who support him have their work cut out for them. There may be 27 states (according to The Blaze) which are willing to do an Article V convention for a balanced federal budget, but 34 are needed. It will be interesting to see if Abbott’s proposal will push the needle even further towards it happening.


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Comments

No restraints put on the federal government will not stop it from plowing thru said restraints. The Founders put in all the checks and balances needed. It is the evil and power hungry politicians that have ruined the sacred trust between the the people and the those that govern. Power corrupts…you know the rest.

jaywemm on January 10, 2016 at 6:47 PM

Trumps election should make a CC moot. He’ll probably get to replace RBG and Kennedy right away. After that, why would Breyer hang around. Scalia will probably stick around for a few the reversals of Zerokare, gay marriage, and abortion. After the fun is over , he’ll probably hang it up. Maybe Roberts will quit because of poor health. Trump might get to replace 5-6 justices. The conservative replacements, starting with Cruz. will change the social landscape for decades. Imagine the sisters starring across the table at Cruz and his buds. No soup for you

rik on January 10, 2016 at 6:53 PM

How about a Millard Constitutional Amendment that criticizing faux presidential tears be prohibited.

Dr. Carlo Lombardi on January 10, 2016 at 6:54 PM

Gregg Abbott is a RINO and Donald Trump should just take his spot as Governor…and make him pay for it.

Mimzey on January 10, 2016 at 6:55 PM

How about a Millard Constitutional Amendment that criticizing faux presidential tears be prohibited.

Dr. Carlo Lombardi on January 10, 2016 at 6:54 PM

…that’ll cost you…$25.00!

JugEarsButtHurt on January 10, 2016 at 7:07 PM

Where are the term limits?

ladyingray on January 10, 2016 at 7:14 PM

Well lets’ see, the Federal Government is pretty much ignoring the 2nd and 4th amendments already, what is to stop them from ignoring more even amendments?

Johnnyreb on January 10, 2016 at 7:14 PM

Another article on this and another article that doesn’t mention that much of this comes from the examples in Mark Levin’s book, Liberty Amendments. How is it that his book from years ago, that is probably the source of much of this, is not mentioned?

kerrhome on January 10, 2016 at 7:22 PM

The problem with a convention is that once one is called, there are no limits on what it can do….every crackpot (on both sides) will be there.

And remember, it won’t matter who is right, just who is left at the end. The adults will have to go back to work at some point.

HBowmanMD on January 10, 2016 at 7:23 PM

Maybe not a ‘Constitutional’ issue, but what might be useful would be a ‘points system’ for federal employees, such that any federal employee, from park ranger to Supreme Court Justice, found to be acting outside the authority of the Constitution, would be assessed ‘points’ based on the egregiousness of his behavior, and after enough points were accumulated, fired.

Federal agents serving warrants, tax examiners, judges ruling on Constitutional issues, legislators voting on hinky laws, all would suddenly have a reason to become very careful.

PersonFromPorlock on January 10, 2016 at 7:23 PM

Maybe not a ‘Constitutional’ issue, but what might be useful would be a ‘points system’ for federal employees, such that any federal employee, from park ranger to Supreme Court Justice, found to be acting outside the authority of the Constitution, would be assessed ‘points’ based on the egregiousness of his behavior, and after enough points were accumulated, fired.

PersonFromPorlock on January 10, 2016 at 7:23 PM

Found by whom?

Rix on January 10, 2016 at 7:26 PM

Limit alphabet agencies? How about getting rid of every agency that is enforcing law the Congress is not actually authorized to create!

Woody

woodcdi on January 10, 2016 at 7:39 PM

He uses the awesome example of Diane Monson, a California woman who was growing her own medical marijuana for her own use, who ended up having all SIX of her marijuana plants destroyed following a DEA standoff.

Terrible example. Drugs have to be regulated at the national level simply because there are no customs checkpoints between states. You can’t regulate them on the state level. This is almost the only legitimate use of the commerce clause.
A better example would be things like the endangered species act, particularly for things like freshwater fish in rivers that are entirely contained in one state.

Count to 10 on January 10, 2016 at 7:40 PM

Repeal the 17th and put the Senate back in the hands of the several States.

Otherwise, anything called “The Texas Plan” has my attention.

Especially if it re-institutes the “Lone Star Republic” and tells D.C. to go screw themselves.

Who is John Galt on January 10, 2016 at 7:40 PM

It seems to me that if you have the popular support to pass amendments then a president could get elected with that popular support to solve the problems unilaterally. How does he do that? Refuses to sign on to any spending until there is a constitutional mandate for the spending. You’ll be dazzled about how quickly congress and the states can get an amendment through. And every word and punctuation mark would have to satisfy the president.

Buddahpundit on January 10, 2016 at 7:47 PM

Unless you can control the members of the SCOTUS, passing new amendments will not help. Leftists have an unlimited ability to read between the lines

rik on January 10, 2016 at 7:50 PM

rik, the days of elegant two paragraph amendments is over. New amendments should be a page long.

Buddahpundit on January 10, 2016 at 7:53 PM

rik, the days of elegant two paragraph amendments is over. New amendments should be a page long.

Buddahpundit on January 10, 2016 at 7:53 PM

Don’t care if it’s one line, the commies will still read between the lines

rik on January 10, 2016 at 7:57 PM

The current Drudge headline may just be a clue to where some of these new trolls come from.

APACHEWHOKNOWS on January 10, 2016 at 7:58 PM

Unless you can control the members of the SCOTUS, passing new amendments will not help. Leftists have an unlimited ability to read between the lines

rik on January 10, 2016 at 7:50 PM

Actually, passing a working amendment is easy. Just start it with “under penalty of death by hanging…” Between grabbing more power and keeping their lives, leftists always err in favor of liberty. :)

Rix on January 10, 2016 at 7:58 PM

The current Drudge headline may just be a clue to where some of these new trolls come from.

APACHEWHOKNOWS on January 10, 2016 at 7:58 PM

Unless they can grow a dick inside a sheep or a pig, I’d say no.

Rix on January 10, 2016 at 8:00 PM

First Ed and now Taylor. For the love of God read Mark Levin’s book the Liberty Amendments. Why am I not surprised two RINO bloggers can’t seem to understand where this conversation first started? Educate yourselves.

Each time you write this pap w/o acknowledging Mark Levin tells me you are doing it purposefully. Please tell us why you are purposefully ignore Mark Levin’s book?

Conservative4Ever on January 10, 2016 at 8:08 PM

I do applaud the Honorable gentleman from Texas for his common sense proposal. I wish it were not so completely doomed to failure.

The present state of Federal Government compliance with the Constitution is a joke. Adding clarifications to the existing rule of law will have no effect upon those committed to ignoring the rule of law in favor of their own power.

What is required is to restore, to a great majority of the citizens of this nation, an understanding of and agreement with the limits upon government which is the foundation of the Constitution. Next, nationwide term limits for both Houses of Congress. Then, and only then, begin to actively impeach or prosecute ALL federal office-holders who are out of compliance with those limits.

Simply put, until steps such as these are taken, the critters on the Hill will continue to act with impunity in stealing the honor of this nation in the name of their own incumbency.

And if the above cannot be done, this Republic will continue to circle the drain until utter destruction, or a second civil war, or both.

Freelancer on January 10, 2016 at 8:10 PM

Each time you write this pap w/o acknowledging Mark Levin tells me you are doing it purposefully. Please tell us why you are purposefully ignoring Mark Levin’s book?

Conservative4Ever on January 10, 2016 at 8:08 PM

Conservative4Ever on January 10, 2016 at 8:10 PM

There has been a fair amount of negative commnt around this suggestion which has been alarmist and nervous about its novelty. To me a big part of this arises from the persistence of the media and punditry on calling this a Constitutional Convention. A Constitutional Convention should scare everyone, but that is not what this is.

What concerns we is how few people understand that this process is simply one of the checks and balances of the system implemented by the Founders. If the National (i.e. Federal ) government was to have the ability to propose Constitutional amendments then isn’t it obvious that the Founders would have extended the same power to the states? I mean, why go through all the trouble of dividing jurisdiction between the levels of government, and leaving residual powers with the states, only to allow the central government the exclusive power to propose amendments. Absurd. So this Art. V convention is nothing odd…on the contrary it is logical. While to date the amendment process has begun at the centre, this effort arising at the state level is a true manifestation of Federalism, in my opinion.

One amendment that I throw out for discussion would be the following: creating a Reference jurisdiction in the Supreme Court. Rather than having to await years for a constitutional case to reach the USSC, state or the Federal government could refer a measure (statute or regulation) to the court for an opinion on constitutionality. This exists in other jurisdictions and might be useful in the US as well. I am curious as to what anyone thinks about this.

Blaise on January 10, 2016 at 8:29 PM

It’s too late. The US died in November 2012.

But go ahead, write in a balanced budget amendment. You will see taxes go to 100% because welfare must be paid or the cities will burn. We can’t afford military spending, but we’ll have a balanced budget made up of trick accounting and the Fed’s magic money machine.

Joseph OHenry on January 10, 2016 at 8:48 PM

kerrhome on January 10, 2016 at 7:22 PM

Conservative4Ever on January 10, 2016 at 8:08 PM

Agree totally, especially since Levin has referenced Taylor’s articles in the past.

What’s the story Hot Air? You know that this idea is Levin’s, and he has only good things to say about Abbott’s proposal.

wytshus on January 10, 2016 at 9:09 PM

Repeal the 17th and put the Senate back in the hands of the several States.

Who is John Galt on January 10, 2016 at 7:40 PM

Repeal anything William Jennings Bryant had a hand in, that man more than any other, is the undoing of the contry

batterup on January 10, 2016 at 10:15 PM

…Please tell us why you are purposefully ignore Mark Levin’s book?
Conservative4Ever on January 10, 2016 at 8:08 PM

They don’t want to set off that lunatic AnnieBland. Goes berserk any time anyone mentions Mark Levin.

Kinda like mentioning “Niagra Falls” to Moe Howard.

LegendHasIt on January 10, 2016 at 11:08 PM

There are no state issues anymore, due to the 14th Amendment.

It is up to the Federal government to regulate the safety of materials passed in interstate commerce, and even with his proposed Constitutional Amendments, a construct like Wickard v. Filburn is certainly possible — in which products we create at home can be constructively viewed as potentially affecting interstate commerce.

Hence, I have no problems with the destruction of six marijuana plants. None at all, for marijuana isn’t listed as one of the things (communication, religion, and firearms) protected both in commerce and in ownership.

unclesmrgol on January 10, 2016 at 11:24 PM

it’s like you dummies don’t even notice the hilarious irony of all you Defenders of the Constitution dying to….change the constitution.

everdiso on January 11, 2016 at 2:05 AM

it’s like you dummies don’t even notice the hilarious irony of all you Defenders of the Constitution dying to….change the constitution.

everdiso on January 11, 2016 at 2:05 AM

Perhaps we “Defenders of the Constitution” are trying to make the point(s) that all branches of government, in their zest for power and some lauded place in history, have strayed far and wide from the Framers’ original intent. In order to rein-in these overreaches, a states-originated, states-led full re-assessment of the powers the Federal government can, will and should derive from the People.

I pity those like you who think it is hilarious irony to want to return the way our government operates to a way in which it served us in very narrow, clearly defined ways, rather than what we have today where we all serve DC rather than DC serving us.

COskier on January 11, 2016 at 7:24 AM

Everdemented trolls over the fact the constitution is completely rewritten at present by the ruling class. The argument that in its original context w/bill of rights the constitution makes this option pointless is correct if you’ve just awakened from a century long nap.
Slow prodding progressivism has dismissed away so much original content we are post constitutional.
This is the “break glass in case of a king” option placed in to hopefully avoid another revol(u)t(ion). And with such a kind and benevolent mast…ident who really saw this coming?

onomo on January 11, 2016 at 7:42 AM

It’s a good plan, but I would go farther.

I would take away agencies ability to have their own Administrative Law Judges to decide violations. I would make any and all challenges to citations go to federal district court (ALJ’s tend to be captured by the agency). I would also make the agency pay all costs and attorney fees and consequential economic damages to the citizen if the citizen wins the challenge – that way the process isn’t necessarily the punishment.

I would also make it so that any federal gov’t employee (including appointees) who lie to congress lose their jobs and can never again work for the federal gov’t.

I would also make it so that any federal gov’t employee (including appointees) that fails to respond to a subpoena from congress lose their jobs and can never again work for the federal gov’t.

These last two points would give congressional oversight far more teeth than it currently has. Right now, agency personnel are lying with impunity and ignoring subpoenas with impunity, which means congress has no real oversight.

Monkeytoe on January 11, 2016 at 8:30 AM

I like the concept but the cynic in me sees it doomed to fail.

Congresscritters from both sides are not going to cede their ability to palm off unpopular ideas on unelected bureaucrats to enact into law. Nor will they have their hands tied when it comes to dispensing money from the federal honey pot.

Douger on January 11, 2016 at 8:32 AM

it’s like you dummies don’t even notice the hilarious irony of all you Defenders of the Constitution dying to….change the constitution.

everdiso on January 11, 2016 at 2:05 AM

this is monumentally stupid. The Constitution has an amendment process in place for a reason. We seek to change the constitution to add protections for the people and we seek to do it through the actual Constitutional process. Your ilk changes the Constitution on a whim through activist judges to steal people’s freedom and further empower the gov’t.

It’s like you don’t even know anything about the Constitution, which you obviously don’t.

Monkeytoe on January 11, 2016 at 8:32 AM

Nor will the roughly 50% of the electorate that thinks the only trouble with Big Government is that it isn’t big enough that limits are the prescription to the disease.

Douger on January 11, 2016 at 8:37 AM

The only way the U.S. is going to reduce its debt is to be willing to stop the leviathan and fight it like Perseus does the serpent Cetus or Thor’s final battle with Jormangandr.

Don’t forget to consult Frodo and Dumbledore before your next post.

Younggod on January 11, 2016 at 8:37 AM

Therefore, the Texas Plan would prohibit Congress from taxing its way to a balanced budget. In particular, the Texas Plan would freeze the federal government’s income as a proportion of GDP at today’s 18% level.

I love a balanced budget amendment, but think that prohibiting tax increases in the constitution is a bad idea. The greatness of the balanced budget amendment is that it forces the government (and thus, “We The People”) to pay for the size of government we want instead of simply borrowing and/or printing the money.

But beyond that, I think it should be up to our democratic processes of government. In FY 2015 we ran a $439 billion deficit. A $439 billion dollar tax increase for that year, if evenly divided among all the 149 million tax returns filed, would be $2,946. Let Congress sell that kind of tax increase to the American people.

Outlander on January 11, 2016 at 9:00 AM

The govt is too good at creating a crisis, like a govt shutdown if you don’t give the progressives all our money, for this to work. It looks like there is a lot of good in his proposal, such as taking away the alphabets power to regulate every darn thing in the country. There’s a few of those depts that could go the way of the dodo bird. If he has a secret plan to rid us of agw and envirowackos, sign me up.

Kissmygrits on January 11, 2016 at 9:05 AM

Thank you Mark Levin !

ChuckTX on January 11, 2016 at 9:27 AM

Balanced budget and limiting alphabet agencies are fantastic ideas. – Taylor Millard

So the question is Taylor – do you actually know what “fantastic” means or do you really mean that the idea of balancing the budget and limiting alphabet agencies is just a fantasy?

earlgrey on January 11, 2016 at 10:06 AM

BTW, I’m voting that you don’t know what the word really means.

earlgrey on January 11, 2016 at 10:06 AM

The federal government could use the “national emergency” phrase as a way to increase spending, and never stop.

“We’ve always been at war with EastAsia.”

GWB on January 11, 2016 at 11:05 AM

BTW, I’m voting that you don’t know what the word really means.

earlgrey on January 11, 2016 at 10:06 AM

But you do?

fantastic
Syllabification: fan·tas·tic
Pronunciation: /fanˈtastik/
adjective
1 informal Extraordinarily good or attractive
1.1Of an extraordinary size or degree
2Imaginative or fanciful; remote from reality

From the Oxford Dictionaries – because “Language Matters”.

GWB on January 11, 2016 at 11:08 AM

As usual people don’t get it. Our Founders understood that ignoring God in our machinations insures our doom but after centuries we stupidly still don’t get it, despite their warnings. God save us.

russedav on January 11, 2016 at 11:33 AM

The federal government could use the “national emergency” phrase as a way to increase spending, and never stop.

I’d propose adding a requirement that any use of the “national emergency” clause would require subsequent certification by 3/4 of the states within 6 months of invoking the clause, with recertification required yearly thereafter for the duration of the ’emergency’. If certification failed, then prior certification for any ‘national emergency’ increase would be required for the next two years (or some kind of limit to keep them from hitting the reset button as often as they like).

There will be no perfect solution, and somebody would find a way to abuse it, but putting more power of the purse back in the hands of the states (and therefore closer to We The People), would be more likely to provide the intended effect.

s1im on January 11, 2016 at 2:58 PM

GWB on January 11, 2016 at 11:08 AM

Stop getting your definitions from the internet. Fantastic means “existing only in fantasy, unreal.” From the American Heritage Dictionary. Only the informal usage of the word comes close to the Way Millard uses it.

earlgrey on January 11, 2016 at 3:01 PM

earlgrey on January 11, 2016 at 3:01 PM

Yes, the success of the Obama economy and ACA is fantastic! LOL

s1im on January 12, 2016 at 8:29 AM