Ryan Streeter
The Daily Caller reports this morning that conservatives in Congress are planning to propose an amendment in the next few weeks that would allow states to repeal federal legislation. The amendment would require two-thirds of U.S. states to ban together to, well, ban specific federal laws from taking effect.
The amendment, as currently drafted, 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Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.
On balance, this would be a good thing for America. The growth of federal power over the past 100 years has by and large been gradual, a frog in the kettle type of phenomenon. It's fairly easy to become inured to new federal intrusions as they happen one by one, slowly over time. It's precisely because of Obama's attempt to radically expand the scope of the government in a couple of short years that has created such a backlash.
Randy Barnett and William Howell laid out a fairly compelling argument for the repeal amendment in the Wall Street Journal a couple of months ago. Their main case is that amendments over the past century have effectively served to increase the federal government's power at the expense of the states.
While they do not comment on the good that any of these amendments have done, they have a point: states have lost more than they've gained through the amendment process over the years.
The repeal amendment would provided a helpful, needed check on federal power. And because it would require two-thirds of states to agree, it has its own inherent check on itself.
Here's where this could help:
- States could participate more directly in national debates about promoting growth, such tax reform and other important fiscal matters. US legislators would need to be mindful of how states would react when they consider changing tax rates or creating new kinds of taxes (such as a VAT with no accompanying meaningful tax reform).
- States could resist relatively unchecked activism from regulatory agencies such as the EPA that increasingly add layers of costs to land development and housing with negligible benefit. Together with the first point, this could go a long way to helping states chart their own course and compete with each other for business and population.
- It would diversify the lobbying community somewhat. It would create a new market for advocacy groups and lobbyists outside of Washington. Lobbyists are already quite active in capital cities around the nation, but this would elevate the ability of national initiatives and organizations to work on resisting Washington's activism.
So while I'm generally supportive of the amendment, there are two areas in which I could see it hurting America:
- Military spending and operations. The President of the United States is the commander in chief and has access to intelligence, along with the appropriate congressional committee members, about threats to America. He or she needs to be able to act on that intelligence, especially given the nature of today's threats. If a war becomes unpopular, the repeal amendment could result in endangering the country.
- Protectionism. Congress has a duty - whether they act well on it or not - to protect commerce and help foster growth. And despite all the evidence that global trade helps improve the standard of living of most Americans, citizens are highly inclined to support protectionist measures. Call it the protectionist paradox. The repeal amendment could end up hurting average households if enough states batted back federal agreements to boost trade.
So how about tweaking the language of the amendment? Here's an initial proposed cut:
Any provision of law or regulation of the United States, except that which is necessary to sustain essential military operations and protect commercial interests abroad, 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.
Now, I'm aware that adding such language offers a number of avenues for abuse. Ultimately, I'm not a lawyer, and I'm sure someone else can strengthen the intent. I'll update the amendment as others offer suggestions on improving it.