The Volokh Conspiracy has an interesting idea:
William Howell, the Speaker of the Virginia House of Delegates, and I have an op-ed in today’s Wall Street Journal making the case for a constitutional amendment giving 2/3 of state legislatures the power to repeal any federal law or regulation. Here is the wording of the Repeal Amendment:
“Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.”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Congress could re-enact a repealed measure if it really feels that two-thirds of state legislatures are out of touch with popular sentiment.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
It’s an interesting idea that has a lot going for it, not the least is that it’s not designed to be a “nuclear option” where the federal government cannont respond. Instead, it’s a way for the states to say “seriously, guys, NO. We don’t want this”. If the federal government is stubbornly insistent on passing a certain law, they still can (with only a simple majority the second time), but they will do so with the full knowledge of the disapproval of at least 2/3rds of the country. It sort of acts as a Citizen’s Veto on any law coming out of Washington- one that holds a lighter force of law, but one that the Feds would be… unwise… to ignore.
I’ve been thinking about this for a while now and can’t figure out the downside. Am I missing anything? How could this be abused in the future? Tinkering with the Constitution isn’t something that we should do lightly, so the idea of an amendment makes me a little nervous, but I honestly can’t think of a better way to restore some state’s rights to the current mess of a system.
There seems to be growing enthusiasm for this, although getting our reps in Congress to actually pass such a self-limiting law might be like getting them to pass term limits or a salary cut. harumph.
*UPDATE* Friend Daniel writes:
Initial thoughts on the repeal amendment, which I hadn’t heard about until reading your post. Since my reaction is entirely negative, I’ll present this as a list of reasons not to pass the amendment. And since I’m at work I won’t do too much explicating of my points:
1) As an occasionally amused and often exasperated observer of the goings-on in Austin, I don’t trust state legislatures to act more wisely or judiciously than Congress, and I certainly don’t consider my state rep to be a more reliable proxy for my voice than my federal rep.
2) Related to the first point, why is one group of elected officials to be preferred over the other? You might call this a problem of democratic epistemology: How do we know which is the “real” will of the people? The answer is that we don’t, and we don’t get closer to it by adding to the already maddening difficulty and complexity of getting legislation passed.
3) Congress works on legislation that is national in scope. State legislatures are (quite properly) only concerned with how things affect their state. Giving states veto power over federal actions blurs the lines of authority and political accountability.
4) In practice it would likely never or almost never be put into practice, but in the meantime it would turn every contentious federal issue into an occasion for posturing and spluttering on the part of state pols, eating up valuable time and energy from our already stretched-too-thin state legislatures.
5) Special interest groups operate with considerably less transparancy at the state level compared to the federal level.
6) We’ve already got a mechanism for how to deal with massively unpopular legislation. We vote the responsible parties out of office.
7) It isn’t clear to me that we need to be able to veto unpopular legislation. Unpopular legislation that turns out to work will be a good thing. Unpopular legislation that doesn’t work can be repealed through the normal federal legislative process.