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Returning power to the states

Public trust in the government reached near historic lows in recent years, according to the Pew Research organization  and others. The rise and popularity of “outsider” candidates such as Dr. Ben Carson and Donald Trump put a heavy emphasis on the significant disdain voters have for the Washington establishment.

The federal governments’ growing obtrusiveness into so much of the nation’s economic life and daily activities far exceeds anything envisioned by the nation’s founders. The trend began in the early 20th century and has accelerated in the past eight years. Add to this unintended power is the simple fact that Washington has caused more problems than it has solved with all this power, and, arguably, has impaired America’s recovery from the Great Recession, which was itself the result of the federal government’s meddling in the housing market.

These factors, combined with the Republican capture of both houses of Congress and the rising activism of conservative legislators may give rise to another look at a Constitutional Amendment providing the states with more influence in national lawmaking.

One proposal to address this is the Repeal Amendment, which was introduced into Congress in 2011. It would also be considered by state legislatures. The Repeal Amendment would give two-thirds of the states the power to repeal any federal law or regulation. The text is fairly straightforward:

“Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.”

The amendment was reintroduced to the House of Representatives by Rep. Bob Bishop (R-Utah) and introduced before the Senate by Sen. Michael Enzi (R-Wyoming.) Florida became the first state legislature to call for an Article V convention to adopt this proposed Amendment.

Randy Barnett of the Georgetown University Law Center  described the measure:
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“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 would provide a targeted way to reverse particular congressional acts and administrative regulations without either relying on federal judges or permanently amending the text of the Constitution just to correct a specific abuse of federal power.

“A state repeal power should not be confused with the power of federal courts to ‘nullify’ unconstitutional laws. Unlike the judiciary, under the Repeal Amendment, states can 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, though it can be applied to any existing law or regulation that has already been enacted.

“This provision would help restore the original balance between state and federal power and allow states to protect the liberties and rights of their citizens, as well as their own operations, from overreaching federal power. It places confidence in the collective wisdom of the men and women from diverse backgrounds, 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.

“While it is no panacea, the Repeal Amendment would restore the states’ ability to protect the powers ‘reserved to the states’ noted in the Tenth Amendment. Moreover, it would provide citizens with another political avenue to protect the “rights … retained by the people” to which the Ninth Amendment refers. In short, the Repeal Amendment would provide a new political check on the threat to American liberties posed by a runaway federal government…

“In part because the judiciary has failed to exercise its own checking function, the powers of Congress have grown so enormously that they swamp the operations of state governments. For this reason the Court has recognized certain limits on Congress vis-a-vis state legislatures and state executive officials. The Repeal Amendment merely places an additional structural check in the hands of democratically elected members of state legislatures…”

Not surprisingly, the concept has been attacked by those with a vested interest in keeping the Washington establishment’s grip on power intact. Advocates of increased regulation, expanding entitlement programs, and the virtual absence of checks on illegal immigration will fight furiously to prevent the resurrection of the concept.