Do we need a “repeal amendment”?

A couple of months ago, Randy Barnett at Cato proposed a new amendment to the Constitution that would give the states the power to repeal acts of Congress.  It’s certainly an intriguing notion, if for no other reason than to note the hysterical reaction to it.  Dana Milbank, Dahlia Lithwick, and Jeff Sesol manage to ignore the fact that the same document has been amended a number of times (seventeen since its initial adoption, most recently in 1992) to accuse conservatives of hypocrisy in proposing another change.  Glenn Reynolds disposed with this notion with brevity earlier in the week, noting that the amendment process is actually part of the Constitution, and a lot more legitimate than muttering about “living documents,” emanations, and penumbras.  There is no need for such logic-defying rewriting of the document to absorb issues like abortion and campaign finance restrictions when (a) the document’s own brevity speaks clearly enough on the limit of federal powers, and (b) the amendment process is available to those who wish to change or add to the Constitution.  All it will take is two-thirds of Congress and three-quarters of the states to pass and ratify it.

That brings us back to the proposal itself.  Barnett’s plan would allow states to band together to override Congress in an attempt to restore the balance of power between sovereign states and the central government.  That should interest at least some of the states, but is this the best way to get to that desired end?

In its next session beginning in January, the legislature of Virginia will consider proposing a constitutional “Repeal Amendment.” The Repeal Amendment would give two-thirds of the states the power to repeal any federal law or regulation. Its text is simple:

“Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.”

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.

This sounds good in principle, but could be a procedural nightmare once enacted.  The first problem would be to get this amendment to the states for ratification.  It seems unlikely that any Congress would produce a two-thirds vote to create a states veto.  That leaves only a Constitutional convention, which might indeed pass it — along with a lot of other, perhaps unpleasant, amendments.  Some believe that Constitutional conventions can be limited in scope, but we’ve only had one, and it replaced entirely the foundational document of the United States.  It’s an opening to a lot of potential mischief.

Let’s say for argument’s sake that Congress approves and the states ratify the amendment.  What happens when Congress passes a law?  How long do the states have to get two-thirds of the legislatures to demand repeal?  Within the same session?  Four years?  Decades?  Does it proceed along the same lines as a Constitutional amendment, where the states have seven years to ratify a veto?  If the time is limited to the current session, most state legislatures won’t have time to react, and future Congresses will simply put off most of their controversial measures until lame-duck sessions.

If it isn’t limited to the same session, then this will remove a great deal of certainty and stability from the American legal system and to acts of Congress, which is after all the people’s branch.  Consider tax laws on which no one could rely, regulatory and deregulatory efforts that could take years to clarify, and then think how investors both here and abroad will react in that environment.  And that isn’t even getting to the budget, which appears subject to this amendment as well.  The states could force a shutdown of the federal government.  This seems like a prescription not just for gridlock and instability, but also an invitation for an expansion of power for the executive branch to run the federal government by executive order and agency power.

The problem of federal overreach is real, but this looks like a poor solution to it.  Those who want to see government restrained by the states would do better to repeal the 17th Amendment.  Instead of requiring popular votes for Senators, go back to the original purpose of the Senate and let the states choose how to pick their Senators instead.  Some might keep the popular vote in place, but those states concerned about federal encroachment on state sovereignty might return to having appointments made by the state legislatures, or governors confirmed by the legislatures.  That would make the state itself the constituent of each Senator, and they could overrule the populist inclinations of the House by thwarting encroaching legislation.

That, too, has its drawbacks.  Senators would be much less accountable to voters, having won their position not by popular ballot but through the favor of a governor or legislature.  Party discipline would evaporate, which has its good points as well; Senators would not be accountable to a party, but to the interests of their state governments.  Factions would form on the basis of regional politics and ideology rather than party, and the upper chamber would be much less susceptible to popular movements.  Consider that in this past election, a Tea Party would have captured as many seats in the House as it did this year, but the results in the Senate would be much different.  One would never see a Rand Paul, and possibly not a Marco Rubio, either, and Russ Feingold would probably still have his seat.  Ron Johnson, a political outsider, would never have even been considered in Wisconsin for that position.

Still, that would be the most efficient way in which to restore the check on federal power that the founders envisioned when they created the bicameral legislature.  It won’t take a cumbersome process that produces long-term instability to get it, either.  And for the sudden love of the original document discovered by Milbank, Lithwick, & Co, it will remove one of those pesky changes to the Constitution that they suddenly find so distasteful.