On Nov. 30, Republican Rep. Bob Bishop of Utah introduced a “Repeal Amendment” in Congress. The amendment is the brainchild of Randy Barnett, a professor at Georgetown University Law Center who specializes in the Ninth and 10th amendments. He and William J. Howell, the speaker of the Virginia House of Delegates, published “The Case for a ‘Repeal Amendment’” in the Sept. 16, 2010, issue (the eve of the anniversary of the signing of the U.S. Constitution) of the Wall Street Journal. The proposed amendment provides that “Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.”
Since the first Congress in 1789, members have introduced more than 11,500 amendments. However, because the framers intended for the Constitution to be fundamental law, the amending provisions in Article V require two-thirds majorities of both houses of Congress (or a convention requested by two-thirds of the states) to propose such amendments and three-fourths of the states to ratify them. To date, Congress has only proposed 33 amendments by the necessary majorities, and states have ratified only 27. The problems and questions surrounding the proposed Repeal Amendment show the virtues of such high obstacles.
Congress has historically exercised “the powers of the purse” associated with taxing and spending. Under the government of the Articles of Confederation that preceded the current Constitution, Congress had no direct power over individuals but had to requisition individual states, which often refused to comply with requests for funds or requisitions for troops. Fortunately, the current Constitution remedied that. Moreover, the Convention of 1787 that drafted the Constitution considered but rejected the idea of creating a Council of Revision, consisting of the president and select members of the judiciary with power to exercise an absolute veto of state and congressional legislation.
One can share Barnett’s concern that congressional powers have expanded at the expense of the states, while questioning his remedy. States continue to be an important part of the federal system. Their ratification of the U.S. Constitution in conventions was essential to legitimizing the document, and states, and districts within them, play a vital role in selecting members of Congress. However, giving states a veto of individual laws, or parts of laws, would divorce power from electoral responsibility by leaving the work of members of Congress to the mercy of state legislators.
Students of James Madison’s Federalist No. 10 might further note that such state delegates represent much smaller districts, where he thought factions, or interest groups, are much more likely to prevail. Moreover, a mechanism for a state veto of congressional legislation might further nationalize American politics by increasing the likelihood that state elections would revolve around national issues.
In striking down the legislative veto in Immigration and Naturalization Service v. Chadha (1983), the U.S. Supreme Court noted how carefully the framers had crafted the legislative process. The current process wisely suspends the application of a law for 10 days as a president decides whether to sign, veto or allow a bill to go into effect without such a veto. By contrast, Barnett’s proposal could leave adopted legislation in a precarious limbo, during which time the president and executive agencies remained uncertain as to whether to begin enforcing a law. Moreover, as the proposed amendment is currently written, laws adopted 50 years ago might be as vulnerable as those that were passed yesterday. Appropriations for national defense would be as vulnerable as others. At a time when legislation can run to hundreds of pages, state legislators are even less likely to have read legislation than the members of Congress who enacted it.
The size of the U.S. deficit suggests that legislators already find it more advantageous to mandate benefits and lower taxes than to cut programs and raise taxes. Article I, Section 8 vests Congress with certain powers and responsibilities. What if state vetoes made it impossible for Congress to carry out such powers or fulfill such duties? What would happen if state legislators began vetoing tax bills without vetoing corresponding appropriations? Who should voters hold responsible?
The Supreme Court ruled in Clinton v. City of New York (1998) that American presidents cannot exercise line-item vetoes. By contrast, the reference to “any provision of law or regulation” of the Repeal Amendment suggests that two-thirds of the state legislatures could exercise such a power. Would it be prudent to elevate a state veto above that now exercised by the president, who is elected on a nationwide basis?
The amending process is likely to provide time to give such issues a hearing. For now, the arguments against the Repeal Amendment are compelling.
John R. Vile is a professor of political science and dean of the University Honors College at Middle Tennessee State University.