Tame the Federal Government with a Repeal Amendment

By Ryan Young & David Deerson

The fight over the health care bill has moved from the Supreme Court to the states. Many are refusing to implement the state-run health insurance exchanges which the legislation requires. This is only the latest squabble between states and the federal government over state sovereignty.

One possible solution: add a repeal amendment to the U.S. Constitution, one that would allow two-thirds of state legislatures to repeal any federal law or regulation they see fit. A repeal amendment would enhance federalism and make democracy more meaningful to citizens by bringing it closer to them.

When most people think of the government’s separation of powers, they think of the three branches of the federal government—executive, judiciary, and legislative. In a federalist system such as ours, the separation of powers between the federal government itself and the states is just as important.

That separation has been losing its balance since the early 20th century. In 1913, two constitutional amendments passed that changed the relationship between state and federal governments. First, the 16th Amendment gave the federal government the power to tax income. With its newfound revenue, Washington could effectively bribe the states to do its bidding by offering to fund desired projects. Once the states became reliant on those funds, the feds could then threaten to withdraw them unless the states complied with federal mandates.

Second, the 17th Amendment took the election of senators out of the hands of the states and put it into the hands of the people. Moving towards a more a direct democracy may have some merit, but in this case the price was removing a major part of the states’ ability to check the federal government.

This cuts both ways; state governments need restraints as well. The 14th Amendment, which ensured that states could not violate the essential liberties outlined in the Bill of Rights, is a fine example of just that. But these days, the balance of state and federal power is tilted too far in Washington’s favor. The enormous burden the federal government is imposing on the states has gotten out of hand. It must be reduced. Hence the repeal amendment.

The incentives currently in place for federal officials do not favor reform. The status quo encourages them to continue to pass more laws, and continue to spend more money—when in fact the country could use fewer of each. A repeal amendment is no panacea, but it would go a long way to restore that lost balance. The idea has also already gained support from the legislatures of Virginia, Florida, Utah, South Carolina, Indiana, Texas, and Georgia, as well as Reps. Eric Cantor (R-VA) and Rob Bishop (R-UT).

The proposed amendment reads:

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.

Of course, it will probably be quite rare for two-thirds of the states to agree on anything, let alone that a specific law or regulation needs to be repealed. But this should lend even more credence to the amendment, because it would only apply to especially onerous and unpopular laws that are in the greatest need of repeal – such as the health care bill.

Of course, there is nothing stopping Congress from re-enacting a law that the states have chosen to repeal. But they would do so at the risk of greatly angering voters, whose views will likely be reflected in their state legislature. The repeal amendment would, at the very least, force Congress to seriously reconsider the wisdom of proposed laws which cause a state-level uproar. Reconsidering laws now and then is something Congress really, really needs to do.

Ryan Young is Fellow in Regulatory Studies at the Competitive Enterprise Institute, where David Deerson is a Research Associate.

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