So much for the original intent of the Founding Fathers.
I. Introducing the Repeal Amendment
On November 30, 2010--after the mid term election and before the current session of Congress--a Republican in the House by the name of Rob Bishop introduced a proposed Constitutional Amendment that is likely the most ridiculous thing to come out of the collective GOP mindset in the last 10 years at least. This proposed amendment is ridiculous because it would negate core principles in the Constitution and would change government and politics for the worse.
Known as the "Repeal Amendment," here is what it says:
Any provision of law or regulation of the United States may be repealed by the several States, and such repeal shall be effective when the legislatures of two-thirds of the several States approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.
Read that again. Those who fully understand how this proposed amendment violates the structure of our government as established by the Founding Fathers can skip sections II-IV of this post. Anyone who does not have such understanding really should read sections II-IV.
Readers might be wondering why I am writing about this topic now when the Repeal Amendment instead of 6 months ago. I was aware of it back then, but, in my opinion, it was such an absurd proposal that I figured it would fade from the news quickly. And it pretty much did after about a month. And then last week, Bishop declared he was going to reintroduce the Repeal Amendment. That fact plus some of the support Bishop has received from Republicans in Congress make this topic a worthy and timely on for discussion. Among those Republicans are Sen. Orrin Hatch and House Majority Leader Eric Cantor.
The text of the Repeal Amendment was taken from the document Bishop submitted in Congress in November 2010. That text was also printed in most of the news articles I saw regarding the Repeal Amendment from November-December 2010. However, in the news articles I have found in the last week regarding the Repeal Amendment, the text of the proposed amendment is missing. There is a Repeal Amendment website, and as of today, the text they present is the same as what is printed above. Consequently, my analysis is all based on that text.
II. The Constitution and repeal.
This section will address the repeal of legislation and regulations because at first glance it would seem that the Repeal Amendment addresses only those two types of laws. However, as shown in section IV.C below, the Repeal Amendment would impact far more than legislation and regulations.
A. Legislation which becomes law and the repeal thereof
The Constitution can be found plenty of places online. I just happen to prefer the Law Information Institute of the Cornell University Law School.
Let's begin with Article I, Section 1, which says "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." This means that in our national government Congress--and only Congress--can create and pass legislation. Inherent in that power is the ability to repeal legislation through new legislation created and passed by the Congress.
Actually, Congress cannot always pass (and subsequently repeal) legislation on its own. The reasons for that are explained in Article I, Section 7:
Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a law. But in all such cases the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each House respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.
In other words, the general rule is that legislation which passes both the House and the Senate does not become law unless the Presidents signs it. The primary exception arises when the President "returns and objects to the legislation (otherwise known as a veto), in which case the legislation can become law if both the Senate and House pass the legislation with at least a 2/3 majority. The secondary exception arises when the President does nothing, in which case Congress does not have to vote on the legislation again, but these days that just doesn't happen.
The main point for purposes of this post is that once a piece of legislation becomes law, the President cannot directly do anything to repeal that law. Congress can repeal that law, but the President cannot.
However, the third branch of the government established by the Constitution--the courts--can repeal laws. Article III, Section 2 of the Constitution says "The judicial power shall extend to all cases, in law and equity, arising under this Constitution..." Thus, if a party to a lawsuit claims that a given law violates the Constitution, and if the courts agree, that law will in effect be repealed.
The point is that the Constitution provides the Courts and Congress with the authority and means to repeal any statute (that is, legislation which becomes law).
B. Regulations and the repeal thereof
Regulations are the rules and provisions created and implemented by the various federal agencies, which are part of the Executive branch of the government, established by Article II of the Constitution. Regulations are laws just as legislation from Congress is law.
Article II, Section 1 says that "The executive power shall be vested in a President of the United States of America." The authority to create federal agencies and the President's power to select who is part of those agencies is established in Article II, Section 2:
[The President] shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.
As it pertains to the agencies which create regulations, here's how the system works...Those agencies are part of the Executive branch, and the President is in charge of those agencies, but Congress gets to say what agencies are in the Executive branch. A good example is the Homeland Security Act, passed shortly after 9-11. That Act 1) created the Executive branch agency of the Department of Homeland Security , and 2) restructured a significant portion of the federal bureaucracy. Another example is the Department of Energy, which Congress created during the Carter administration.
Another part of the system is the creation of the regulations. Just as Congress determines the structure of the bureaucracy, Congress also determines the framework for regulations through legislation, and agencies must be authorized by Congress to create and enforce rules and regulations. For instance, many legislative acts include what is called an "enabling statute," which says something like "The appropriate federal agency is granted the authority to create and implement any and all regulations necessary to implement the provisions of this act." And then the regulations must be in furtherance of the policies established by Congress. As an example, if an act says that a national energy policy is to be established and that the Department of Energy is to come up with regulations, the DOE cannot create regulations that concern the Social Security system.
That leads into the repeal of regulations. If a regulation is outside the authority granted by Congress or does not deal with the specific legislation to which it is supposed to apply or is otherwise illegal, it can be challenged in court, and the courts can repeal it (pursuant to Article III, Section 2). The agency which created the regulation can repeal it. The President, as head of the Executive branch, could make the agency repeal the regulation. And finally, Congress could pass a law which repeals the regulation.
The point is that the Constitution provides each branch of the federal government with the authority and means to repeal a regulation.
C. Does the Constitution allow the States to repeal federal law?
The answer is clearly "NO." Read Article I in its entirety. There is no mention anywhere of States repealing or ignoring laws established through the legislative process. Likewise, Article II (the basis for the Executive branch being able to create regulations) says nothing about the States being able to repeal regulations. As explained above, the Constitution establishes the authority and means by which all three branches of the federal government can repeal legislation and/or regulations. Thus, it is clear that the Founding Fathers knew how to include language to directly grant such powers. The fact that they deliberately chose to not include any language even implying that the States had any such power should resolve this question.
Just in case some people still need convincing, check out the second clause of Article VI, known as the Supremacy Clause:
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
(emphasis added). Clause 3 of Article VI then says
The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.
(emphasis added).
It is clear that the Constitution does not, in any way, give the States any power to directly repeal laws established by the federal government.
III. Does that really matter?
A. Overview
In one way, the fact that the Constitution does not give the States any power to repeal federal laws is irrelevant. Why? Because the Constitution also provides a process by which the Constitution can be changed via amendment. Any Constitutional provision can be changed as long as the amendment process is properly followed. Consequently it is possible that the current Constitution could be changed by the Repeal Amendment to do something it never has allowed before.
In another way, that is precisely why the current provisions of the Constitution do matter. The Repeal Amendment would completely alter our form of government that has been in place for over 220 years. You know, the form of government that so many Americans cite as evidence that we are the greatest democracy in the history of the world.
I am going to explain how the Repeal Amendment would result in such drastic alteration in the next section, but for now I want to focus on something that I think shows the hypocrisy of Bishop and probably most people who think this Repeal Amendment is a good idea.
I have grown tired of the right wing constantly harping on the "original intent" of the Founding Fathers as justification for so many items on their agenda. I bet that most supporters of the Repeal Amendment just love claiming that that they are all about "original intent." I know Bishop falls in that camp. As he stated on Sept. 17, 2009, “Today, on the 222nd anniversary of the signing of the Constitution, we would do well to remember and recommit ourselves to the original intent of the Constitution – to devolve power and to protect individual liberties.” And when he first introduced the Repeal Amendment, "Bishop, though, told KSL Radio the amendment is not about exerting states rights, but 'an effort to go back to the original intent of the Constitution...'" The Repeal Amendment would allow States to directly repeal any federal law, and as I have shown, there was no original intent in the Constitution that the States could in any way directly repeal any federal law. So just what is this "original intent" Bishop seeks to restore? He provided an explanation on December 16, 2010. His explanation is a mix of naivete, ignorance, and contradiction.
B. Bishop says one thing, then the opposite.
Let's start with a contradiction. Bishop says
Some critics argue that any constitutional amendment shows insufficient reverence for that original text. Some of the same critics argue that the Constitution is a "living document" that should change with the times to read new powers and interpretations into its text. I disagree. The Repeal Amendment follows a process consistent with the Constitution's original intent.The Constitution established a national government that performed a limited range of functions and rarely intruded into everyday life. Times have changed. Now is the time to limit encroachment of power by the national government and restore the ability of the states to act on behalf of their citizens.
(emphasis added). Bishop first says that the Constitution should not change with the times and that its terms should not be reinterpreted to give them new meanings. And yet his Repeal Amendment would completely change the Constitution in that it would give the States the power to directly appeal federal laws. And he thinks this change is necessary because times have changed!
C. Bishop seeks to restore the "balance" that was in "original intent."
Bishop sees the Constitution as establishing a balance that transcends what some would call changes that he wants to make. According to Bishop, the Repeal Amendment does not change anything. Instead, it seeks to restore what he feels once was and has been lost:
The Founders designed a system of government where states would play a vital role in the governance of the American people. They envisioned a system where states had the capacity to restrain federal power. Unfortunately, that balance between national and state power has eroded.*******The sole purpose of the Repeal Amendment is to return our system of government to something closer to the balance of power provided for in the original Constitution.
Let's see how that balance is established in the Constitution. I am not saying this is the way things should be. I am not saying there is not a better way to set up our national government. I am just saying this is what is in the Constitution.
The Constitution establishes a strong federal government whose laws will control over those of the States. Article I, Section 8 contains a long list of matters that are solely within the power of Congress--as in the States have no authority. The States have no authority over those matters because of Article VI, which is quoted in II.C above. Article I, Section 10 contains limitations on States' powers, and even lists some things that States can do only with the consent of Congress (and one of those things will be addressed in IV.C.2 below). Article II vests all the executive power of the federal government in the President and does not grant the States any control over the Executive Branch. Article III, in conjunction with the Supremacy Clause, gives the federal judiciary ultimate authority in all matters involving federal laws and the U.S. Constitution. Although not mentioned in Article III, State courts can make rulings on such matters, but they are constrained by and required to follow the rulings of the U.S. Supreme Court. Article IV specifically addresses the States. Section 1, known as the Full Faith and Credit Clause, requires each State to give "Full faith and credit...to the public acts, records, and judicial proceedings of every other state." Section 2 says "The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." In other words, each State has to recognize and enforce within its borders the rights granted citizens in the U.S. Constitution. Section 3 says that only Congress can admit new States into the country, and that "no new states shall be formed or erected within the jurisdiction of any other state; nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned as well as of the Congress." Section 3 also establishes that "The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular state." In other words, when the United States has any property interest in a State, that State has no authority over that property. Section 4 says "The United States shall guarantee to every state in this union a republican form of government[.]" That is a good thing, but note that it is the United States, not the States themselves, that has this responsibility.
On the whole, then, it can be said that the original intent of the Founding Fathers was that when it comes to the laws created by the federal government, the States have very little authority. That does not end this "balance" inquiry, however, because the Constitution does allow the States some control over the federal government.
That control is largely in the form of electing members of the federal government. For example, Article I, Section 2 says "The House of Representatives shall be composed of members chosen every second year by the people of the several states[.]" Also, the States get to determine the qualifications to be a voter. Due to the 17th Amendment, Senators are elected the same way, but originally Article I, Section 3 required that "The Senate of the United States shall be composed of two Senators from each state, chosen by the legislature thereof." Still, assuming that the legislature of each state was chosen through popular election, even in its original form, citizens of States had a role in electing Senators. Article II, Section 1 says that the President shall be elected by the votes of each State's "electors," who are to be chosen in the manner selected by each State. This is still done today via the Electoral College, and each State is free to determine not only how the electors are chosen, but also whether and how electors will be pledged to a candidate (usually based on the popular vote). Thus, the States have an indirect control over the laws of the federal government. The President and the members of Congress make most of those laws, and the States and their voters have control over who gets to be the President and the members of Congress.
States also have some power via the 10th Amendment, which says "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." However, for purposes of the Repeal Amendment, the 10th Amendment is irrelevant because the power to repeal federal laws has been delegated to the federal government, and, furthermore, the States are expressly required to follow and enforce those federal laws.
So here's the balance contained in the Constitution as written by the Founding Fathers: Only the federal government can create federal-level laws; only the federal government can directly repeal those laws, and the States' only means of controlling federal laws is through the electoral process. In no way, shape, form, or fashion did the Founding Fathers intend for any balance between the federal government and the States to include the States being allowed to directly repeal federal laws.
Bishop and anyone who supports the Repeal Amendment can argue all they want they the Repeal Amendment is a good and/or necessary provision, but they simply are wrong when they argue that it complies with the original intent of the Founding Fathers.
And they are also wrong in claiming it is a good idea.
IV. The Repeal Amendment would alter our form of government.
A. Overview
For over 220 years, our form of government has prohibited the States from directly repealing any federal law. The Repeal Amendment would give that power to the States. Those facts alone conclusively establish that the Repeal Amendment would fundamentally alter our form of government, and there are more reasons why the Repeal Amendment would in practice likely result in sweeping changes in our system of government.
I will argue that the Repeal Amendment will not result in any positive changes on a real world practical level. I recognize that some people will disagree with me on that, but I also know this: anyone taking that position cannot use "original intent" as any kind of argument. The Repeal Amendment would obliterate the original intent of the Founding Fathers. I have barely begun showing how it does not in the least comply with original intent. I will pick up that effort with discussing the first form of government this country had after the Revolutionary War.
B. The Constitution is great and all, but let's go back to what didn't work before.
By giving the States this direct power of repeal, the Repeal Amendment would significantly weaken the central (federal) government (which should become apparent as this post goes on). Guess what? A similar sort of arrangement was tried, found not to work, and the Constitution was established to correct what had been tried before. I'm talking about the Articles of Confederation. Now, Bishop claims that "this amendment has nothing to do with...returning to the Articles of Confederation." That may be literally true, but there is no question that under the Articles of Confederation the central government was weak. Here is a description of this state of affairs:
Under the Articles each of the states retained their "sovereignty, freedom and independence." Instead of setting up executive and judicial branches of government, there was a committee of delegates composed of representatives from each state. These individuals comprised the Congress, a national legislature called for by the Articles.The Congress was responsible for conducting foreign affairs, declaring war or peace, maintaining an army and navy and a variety of other lesser functions. But the Articles denied Congress the power to collect taxes, regulate interstate commerce and enforce laws.
And here is another:
While the U.S. Articles of Confederation was a plan of government based upon the principles fought for in the American Revolutionary War, it contained crucial flaws. It had no power of national taxation, no power to control trade, and it provided for a comparatively weak executive. Therefore, it could not enforce legislation. It was a "league of friendship" which was opposed to any type of national authority. The Articles of Confederation's greatest weakness, however, was that it had no direct origin in the people themselves–it knew only state sovereignty. Each state, therefore, had the power to collect its own taxes, issue currency, and provide for its own militia. The government could not govern efficiently because of a general lack of power to compel states to honor national obligations.
Under the Articles of Confederation, the challenges to maintaining a unified nation--one where the States would not be engaged in constant competition with each other and the federal government--were immense. The Constitutional Convention was called in large part to change that situation.
The Constitution gave us a strong central government. Very good arguments can be made that it has become too strong, but the Repeal Amendment is not the way to change that. In any event, a strong central government was the original intent of the Founding Fathers. The Constitution was a big change from the Articles of Confederation. If the Founding Fathers had not intended a strong central government, they would have given us a revised version of the Articles of Confederation, not a significantly different structure. And this original intent--which Bishop claims he wants to maintain--would be disregarded by the Repeal Amendment.
Moreover, as I will eventually explain, the Repeal Amendment would go beyond the problems presented by the Articles of Confederation.
C. The language that is and is not in the Repeal Amendment shows it would fundamentally change our system of government.
- 1. Overview
In order to justify my previous statement, I need to explain why the wording of the Repeal Amendment makes it a huge, steaming, stinking pile of crap. Seriously, whoever wrote this amendment should be banned from ever again drafting anything of legal consequence.
In our country, the one thing that is determinative in any kind of legal question regarding contracts, statutes, regulations, and Constitutional provisions is the language. If the words used are clear and unambiguous, then the language controls, and nothing can be used to alter the meaning of the language. For example, let's say you, dear reader, agree to sell me a box of widgets for $100, and we sign a contract that says just that. I then refuse to pay you more than $10. We end up in court, and I say to the judge, "Well, your honor, we never intended for me to pay $100. The truth is that we agreed I would pay only $10." The judge will then ask me "Why didn't you put that in the contract, and why did you sign the contract for $100?" No answer I could possibly give would change the inevitable result: the judge will rule that I have to pay you $100, and he might fine me for being a dumbass and wasting the court's time. With statutes, regulations, and Constitutions, it can be a little more complicated. Other laws can be examined that could have an impact on the meaning of a given provision. For instance, certain words or terms used in one specific statute might be defined in another statute. When the two statutes are read together, the language of both will decide the issue.
Bishop claims that the Repeal Amendment is a "a measured and targeted tool for states to reverse particular congressional acts and administrative regulations so long as two-thirds reach a consensus." One problem is that the language of the Repeal Amendment shows that it could easily become a tool of immeasurable impact that could target anything and everything. Notice that there is no express limiting language in the Repeal Amendment. For instance, it does not say that it will be limited to statutes and regulations. Instead, it says that it will apply to "Any provision of law or regulation of the United States..." That's a very target-rich environment.
Given the broad language of the Repeal Amendment and the lack of limiting language, the Repeal Amendment contains no real limitation in terms of scope and reach. That scope includes more than legislation and regulations. Concievably it could include almost every action taken by any branch of the federal government.
- 2. The Repeal Amendment, as written, applies to the Constitution itself.
Take another look at the Supremacy Clause in Article VI of the Constitution: "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land[.]" (emphasis added). The Constitution is a "law of the United States" and thus--under the express terms of the Repeal Amendment--any part or all of the Constitution would be subject to repeal.
Let that sink in for a moment...Take a deep breath. And anyone who might want to say that the Repeal Amendment is not intended to do that or that it would not be used for that, well, you need to take another breath and prepare yourself to be schooled. In other words, if that is what you think, you are mistaken.
Now let's apply the principles discussed in IV.C.1 above to the U.S. Constitution and the Repeal Amendment. The Repeal Amendment says it would apply to "Any provision of law of the United States." The word "any" is clear and self explanatory. Likewise for the word "provision." This is particularly true since the Repeal Amendment does not provide any definition for these words which would alter their plain meaning. The term "law of the United States" does not have an obvious meaning and is not defined in the Repeal Amendment, so could there be another law which could define that term? Why, yes--that would be the Supremacy Clause of Article VI of the Constitution, which, as shown above, declares that the Constitution is a "law of the United States." So, the Repeal Amendment could be used to repeal all or part of the Constitution. If whoever wrote this piece of crap had not wanted it to apply to the Constitution, he could have--and should have--written that in the Repeal Amendment. The bottom line is that regardless of what the drafter intended, the Repeal Amendment could be used to repeal all or part of the Constitution.
Now I know what some of you are thinking...You're thinking that 1) the Supremacy Clause makes a distinction between the Constitution and "the laws of the United States which shall be made in pursuance thereof," and 2) "law or regulation of the United States" as used in the Repeal Amendment does not mean the Constitution. Nice try, but you are wrong. In the Supremacy Clause, there are three items which, while separate, are nonetheless each listed as being "the supreme law of the land." That means that the Constitution and "laws of the United States...made in the pursuance thereof" are part of the same group, as in if one is considered a "law of the United States" for purposes of the Repeal Amendment, then so is the other. There are other arguments I can make, but I really don't see the need.
In any event, the way the Repeal Amendment is written, it applies to the Constitution. And that is a huge change in our system. You see, the Constitution already sets out a procedure for repealing its provisions. It's called the amendment process, and it is set out in Article V:
The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress[.]
Two things to note: 1) this is a two-step process--proposal of amendments and then ratification by the States, and 2) ratification must come from 3/4 of the States. The Repeal Amendment would basically reduce the process to one step AND would require approval of 2/3, not 3/4, of the States. The Founding Fathers' original intent for repealing Constitutional provisions was clearly to make it a difficult process and require approval by 3/4 of the States. The Repeal Amendment--despite Bishop's bullshit claims to the contrary--obliterates that original intent.
Moreover, there is reason to believe that the Repeal Amendment would be used to repeal provisions of the Constitution. Lest anyone think my efforts would be better spent searching for Bigfoot or investigating the Illuminati, read on...
As one would expect, there are various "conservative" groups in Texas which strongly oppose the current health care reform law. What makes that opposition relevant to this discussion is one thing they are advocating as "reform" for health care. One such group in the Texas Public Policy Foundation, which is openly calling for the Texas Legislature and our glorious governor (that's sarcasm, folks) to enact what is called the "Health Care Compact," which seeks to put control of health care in the States and would allow States to completely disregard any federal laws pertaining to health care. However, the Health Care Compact does call for all State-run health care laws to be funded by the federal government. I have not checked regarding any state other than Texas, but the Health Care Compact site has information on what states across the country are doing. The Texas House is attempting to pass a health care compact right now. A "compact" is "A voluntary arrangement between two or more states that is designed to solve their common problems and that becomes part of the laws of each state." Remember that I said earlier that Article I, Section 10 of the Constitution lists some things that States can do only with the consent of Congress? Well, one of those things is a compact. Under the Constitution, there can be no interstate compacts without the approval of Congress.
So, it doesn't matter how many states want to adopt the Health Care Compact because those compacts will be meaningless unless Congress approves them. In the case of health care, there is no chance that is going to happen unless there is a major change in Congress, and I don't see that kind of change happening. I could be wrong, but I don't think I am. However, if the Repeal Amendment is in place, the provision of the Constitution which requires Congressional approval could be repealed. And what do you know? The Texas Public Policy Foundation is advocating that State legislatures try to get the Repeal Amendment established (see the bottom of p. 1 and top of p. 2). Health care is one of the top "hot button" issues in this country right now, and one way to get rid of "Obamacare" (other than through the courts, and as I have discussed elsewhere, I don't think that is going to happen anytime soon, if at all) would be through compacts, but that can't happen unless the Constitutional provision requiring Congressional approval is eliminated. The Repeal Amendment could do that. Anyone who thinks that could not be done under the Repeal Amendment (as currently worded) is simply wrong, and anyone who thinks that there would not be an attempt to use the Repeal Amendment in this way on this issue is simply naive.
But wait...there's more.
- 3. The Repeal Amendment would also apply to treaties.
Under Article II, Section 2 the President is the only person or group authorized to make treaties on behalf of the nation. The only other group involved in the treaty process is the Senate, which must approve each treaty by a 2/3 majority before it becomes effective. Under the Constitution, the States have absolutely no authority of any kind to make or approve treaties. In fact, Article I, Section 10 expressly says "No state shall enter into any treaty[.]" In light of all of this, I would argue the Constitution shows clearly that the original intent of the Founding Fathers was that the States would have absolutely no role or power in the negotiation, making, approving, OR repealing of any treaties, and I challenge anyone to make a plausible argument to the contrary.
Anyone who might think about trying should first consider these statements from the U.S. Supreme Court in U.S. v. Belmont, 301 U.S. 324, 57 S.Ct. 758, 81 L.Ed. 1134 (1937):
Plainly, the external powers of the United States are to be exercised without regard to state laws or policies. The supremacy of a treaty in this respect has been recognized from the beginning. Mr. Madison, in the Virginia Convention, said that, if a treaty does not supersede existing state laws as far as they contravene its operation, the treaty would be ineffective. "To counteract it by the supremacy of the state laws, would bring on the Union the just charge of national perfidy, and involve us in war." 3 Elliot's Debates 515. And see Ware v. Hylton, 3 Dall.199, 236-237. And while this rule in respect of treaties is established by the express language of cl. 2, Art. VI, of the Constitution, the same rule would result in the case of all international compacts and agreements from the very fact that complete power over international affairs is in the national government, and is not and cannot be subject to any curtailment or interference on the part of the several states. Compare United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 316, et seq. In respect of all international negotiations and compacts, and in respect of our foreign relations generally, state lines disappear.
Now does anybody want to argue that the Founding Fathers original intent was to let the States have any power regarding treaties?
To summarize, my argument is 1) treaties are "laws of the United States;" 2) the Repeal Amendment says it applies to any law of the United States; 3) since the Repeal Amendment does not contain any limiting language, it does not say that it does not apply to treaties; and thus 4) the Repeal Amendment could be used to repeal treaties of the United States.
Assuming that I am correct, the Repeal Amendment, by extending its reach to treaties, would once again affect a major change in our governmental system and violate the original intent of the Founding Fathers.
But wait...there's more.
- 4. The Repeal Amendment might apply to Supreme Court decisions.
My use of "overturn" is an indication that perhaps the Repeal Amendment would not apply to court rulings. The term "repeal" is not used in relation to judicial decisions. They are overturned, vacated, and/or reversed. Also the Congress can effectively render a Supreme Court ruling ineffective by repealing legislation or passing new legislation which addresses the ruling. However, that is not referred to as a "repeal," nor is it a direct reversal of a Supreme Court decision. On the other hand, check out this definition of "repeal:" "to annul an existing law, by passage of a repealing statute, or by public vote on a referendum." And then there is this definition: "to rescind or annul by authoritative act[.]" The Repeal Amendment would require an authoritative act by State legislatures, and the legislative resolution called for under the Repeal Amendment would necessarily be granted the same effect as a statute passed by said legislatures. In other words, it seems that "repeal" depends on the nature of the action taken to annul a law, not the nature of the law sought to be annulled, meaning that perhaps the Repeal Amendment would apply to judicial decisions.
By the way, the nature of statutes and resolutions will be discussed in IV.C.8 below...
In any event, I would lay odds that Bishop and his supporters would love to overturn lots of Supreme Court decisions, starting with Roe v. Wade. Bishop is the founder of The Tenth Amendment Task Force, a group dedicated to reducing the power of the federal government and giving power to the States. According to most 10th Amendment advocates, the Supreme Court has long been a major culprit in what they see as the wrongful expansion of federal power. The temptation to use the Repeal Amendment to overturn those troublesome Supreme Court decisions might just be too great for Bishop and supporters of the Repeal Amendment.
But wait...there's still more.
- 5. What about Executive Orders?
Once again, this would constitute a power that never was contemplated by the Founding Fathers. See, they came up with a way to try to restrain such Presidential power. It's called the system of checks and balances. Under that system, the Congress could enact legislation to counter some Executive Orders, and the Supreme Court could rule such orders to be illegal.
Take a good look at that last paragraph because it foreshadows a discussion of one of the major problems with the Repeal Amendment...
- 6. The Repeal Amendment has no limitation on how many times it can be used.
In his announcement about reintroducing the Repeal Amendment, Bishop says this:
The tenants [not a misprint, by the way] of the Repeal Amendment are simple: if two-thirds of the states collectively find a federal law or regulation abhorrent or misguided, they should have the power to repeal said law or regulation. The law would then be sent back to Washington for further consideration, at which time Congress may choose not to act again on the matter, or they may vote to override the states’ repeal and pass it in finality.
(emphasis added). I'm confused. Where does the text of the Repeal Amendment say that Congress can override the States' repeal and pass it in finality? Oh wait--I'm not confused because the Repeal Amendment says no such thing. Compare that to what the Constitution says about the President's veto power, namely that Congress can indeed repass the rejected legislation (by a 2/3 majority) and that such action is a finality. In other words, the Constitution expressly says that the President can use the veto power one time only for a given piece of legislation. The Repeal Amendment contains no language even implying a similar set up. And again, any intention by Bishop to include such a limitation is irrelevant because of the absence of such limiting language.
That means that--once again--the Repeal Amendment does not mean what Bishop says it means. Let's say that Congress passes a bill that the President signs, making it a law. 33 States don't like the law, so they invoke the Repeal Amendment. The bill goes back to Congress, and once again Congress passes it and the President signs it. Under the express terms of the Repeal Amendment, the same 33 States could once again repeal the law. And this could go on and on and on because the Repeal Amendment contains no language to stop it.
And that fact foreshadows another discussion of a major problem with the Repeal Amendment...
- 7. The Repeal Amendment could distort the "will of the people."
The Founding Fathers faced a similar problem, but their solution was part of the system of checks and balances. At the Constitutional Convention, some wanted a system of representation based only on population. However, others felt that this would marginalize the least populous states. So, the Founding Fathers came up with the "Connecticut Compromise." That gave us our bicameral legislature in which the House of Representatives is based on population and the Senate has two Senators from each State. That set up, plus the fact that legislation must pass both the House and the Senate, allows for the population majority to be heard while the population minority is protected from always being shut out.
What the Repeal Amendment would do is effectively create a unicameral overseer that could thwart the will of the majority of people in this country. I don't care how anyone tries to spin that. There is no way that is what the Founding Fathers intended, and it would constitute a fundamental change in our system of government.
- 8. There would be no check or balance for the Repeal Amendment.
I need to discuss a specific element of the checks and balances system, namely judicial review. Judicial review is the process by which the courts determine whether specific laws are legal. More specifically, courts will decide whether specific laws are Constitutional. The Repeal Amendment would not be subject to judicial review because it would be part of the Constitution, and the Courts have no authority to declare any part of the Constitution illegal. As a result, the only way to check or limit the Repeal Amendment would be to amend the provision to include limitations or repeal it via the amendment process of Article V. Of course, I am assuming that the amendment process would still be in place.
There is another aspect to this checks and balances analysis. Recall that under the Repeal Amendment 2/3 of the State legislatures must pass a resolution calling for the repeal of a given federal law. So, just what is a resolution? A full explanation can be found at The Free Dictionary, and I will quote excepts from that page. For starters, a resolution is "The official expression of the opinion or will of a legislative body." It is no more and no less. For purposes of this discussion, a fundamental point is that "Resolutions are not laws; they differ fundamentally in their purpose." As stated in the first quote, resolutions are basically opinions, and
When resolutions are mere expressions of opinion, they differ fundamentally from laws. In essence, laws are intended to permanently direct and control matters applying to persons or issues in general; moreover, they are enforceable. By contrast, resolutions expressing the views of lawmakers are limited to a specific issue or event. They are neither intended to be permanent nor to be enforceable. Nor do they carry the weight of court opinions. In a certain respect, they resemble the opinions expressed by a newspaper on its editorial page, but they are nonetheless indicative of the ideas and values of elected representatives and, as such, commonly mirror the outlook of voters.
(emphasis added). So, the Repeal Amendment would allow something which has no legal effect to get rid of actual laws. In other words, something which did not have to go through the entire process of becoming a law and thus enforceable can be used to negate something which did have to go through a rigorous process in order to be enforceable, and I will soon show what that has to do with checks and balances.
The general rule is that resolutions do not have the effect of law. There is an exception.
When both houses adopt the same motion, it is called a joint resolution. Besides carrying the greater force of unanimity, the joint resolution also has a specific legal value in state and federal government. When such a resolution has been approved by the president or a chief executive—or passed with the president's approval—it has the effect of law. In some states a joint resolution is treated as a bill. It can become a law if it is properly passed and signed by the chief executive officer.
Here in America (at both the federal and State level) legislative actions become law if they are bills which pass the entire legislature and are either signed by the chief executive (President of governor) or passed again over a veto by the chief executive. That is where the American system of checks and balances comes into play. However, under the Repeal Amendment, none of that applies. A State legislature can pass a resolution, and without approval by the chief executive, that resolution in effect becomes something that can overturn a law that has gone through the normal legislative process. The State legislature gets to act completely on its own with nothing to check or balance that power. Just how American is that?
There is a greater than zero chance that someone will think that the Repeal Amendment simply mirrors a way that the Constitution can be amended. Indeed, Article V says that one of the ways proposed amendments can be created is "on the application of the legislatures of two thirds of the several states"--as in the legislatures acting alone without approval of the chief executive. However, such application is but one step in the process. It is not the only or final step, whereas under the Repeal Amendment, such action is the only step needed to repeal virtually any federal law. And that one step is not subject to any checks or balances at the State or federal level.
D. Summary
The Repeal Amendment would fundamentally change our system of government by giving the States direct power over federal laws--power that the States have never had under the Constitution, and power that the Founding Fathers never intended the States to have. Moreover, that power could extend to almost every action taken by any and all branches of the federal government. Indeed, the Repeal Amendment--as written--could be used to repeal all or part of the Constitution itself. The Repeal Amendment would not be subject to any of the checks and balances that have become a hallmark of American government. Not only that, but under the Repeal Amendment, it would be possible for 33% of the American population to dictate policy to the other 67%. Our Constitution and our form of democracy have never envisioned such a result, and yet that could happen under the Repeal Amendment.
V. The Repeal Amendment would produce bad results.
A. Overview
And now we get down to the real heart of the matter. I could maybe live with the fact that the Repeal Amendment would toss out most of the governmental system that has been in place for over 220 years if it is likely to result in something positive, but, as I said, the Repeal Amendment is a huge, steaming, stinking pile of crap, and that, my fellow Americans, will not produce good results.
If the Repeal Amendment actually becomes an amendment, I predict there will be gridlock and political bovine fecal matter the likes of which we have never seen. Take all the political strife and rancor we have now and multiply it by at least a factor of 10.
B. Gridlock
As for the gridlock, I'm sure some people would say it could not get any worse. One perpetual complaint (which has a lot of validity) is that there is too much red tape in our government. Now into that structure, throw in one more element--the States under the Repeal Amendment. How is that going to help the situation? Here's a clue: it won't.
Here are some gridlock scenarios:
- As I described in IV.C.6 above, Congress could pass a law, the States repeal it, the Congress repasses the law, the States repeal it, and so on and so on. Nothing will get done by Congress. No progress will be made. That's gridlock.
- Congress passes a law, the States repeal it, Congress tries to pass a new law that addresses the States' objections, but can't do it because of the regular gridlock that typically grips Congress.
- Congress passes a law, the States repeal it, Congress passes a law which does address the States' concerns, but the new law--unlike the previous one--is objectionable to the President, so he vetoes it, and the Congress cannot override the veto. So we have a stalemate, otherwise known as gridlock.
There are other ways in which the Repeal Amendment would likely cause massive gridlock, but I will describe them as I discuss some of the other adverse results sure to follow the Repeal Amendment.
C. Things will be worse than under the Articles of Confederation.
Recall that in III.C and IV.B I explained that
- the "balance" in the Constitution is that there would be a strong central government in which States would have little to no direct control over federal laws;
- under the Constitution the States are obligated to follow and enforce federal laws;
- the Constitution was intentionally designed to correct the flaws in the Articles of Confederation, chiefly the lack of a strong central government
- under the Articles of Confederation, the States retained full sovereignty, meaning that they were under no obligation to obey laws of the national government and the national government had no way to enforce any of its laws.
Before explaining myself, I need to explain the term "de facto." This is Latin for "in fact." In the legal world, this term is used to describe something that might not on its face or technically be a given thing but in operation--in fact--it is that given thing. For instance, a law might not be discriminatory in appearance, but the way the law actually works and the effects it produces could make the law "de facto" discriminatory.
I have already shown that the Repeal Amendment on its face would give the States powers they have never had before and violate the original intent of the Founding Fathers. What is not apparent on the surface is the degree to which the Repeal Amendment would weaken the federal government and cause huge problems in our nation. What I will show is that the Repeal Amendment is a de facto tool to severely weaken the federal government.
Basically, the Repeal Amendment could turn our whole system of government around and put the States in control of national law. This is not readily apparent because the Repeal Amendment on its face only gives the power to repeal federal law. It does not give the States power to create and enforce laws on a national level. However, its operation, as a practical matter, could give the States those powers.
Think I'm crazy? Granted, my aluminum foil hat might not be fitting properly, but that doesn't mean I am wrong about this.
Review my gridlock scenarios and then consider the following. The States, through their unchecked and unlimited power under the Repeal Amendment, could keep invalidating any law passed by Congress. The States could keep doing this until Congress enacted a law that met with those States' approval. If that happened, the States in fact would have forced Congress to do what they wanted. From then on, the States could do that with any federal law to which the Repeal Amendment applies (which I have shown is damn near all of them). Eventually Congress could end up seeking the approval of at least 33 States before drafting and or voting on any legislation, and if that happened, then once again the Repeal Amendment would be a de facto tool to get the federal government to take orders from the States.
Now, I know what some of you are thinking. You're thinking that there is no way I can prove that this will happen. That is true, but neither can anyone prove or guarantee that it won't happen--and that is the point. Because the Repeal Amendment has no limitations of the power it would grant, everything I describe in the previous paragraph could happen.
Moreover, I maintain all of that is more likely than not to happen. If the Repeal Amendment became law, it would do so by riding a wave of anti-Washington, pro-States sentiment, and I would bet that a lot of people would want to invoke the Repeal Amendment as soon as possible. I kid you not when I say that I think it would be somewhat like the Roman games as depicted in the movie "Gladiator"--"the people" will want Washington blood, the Repeal Amendment will be the most direct way to get it, and if they don't get it, things are going to get out of hand. Is that a little too harsh? Well, try this on for size...Making the Repeal Amendment law and then not using it will be similar to giving an 18-year old a brand new Porsche and telling him he can only drive around the block at 20 mph--but no one is going to make sure he only does that. It's just unreasonable to think he is going to comply.
Now back to why the Repeal Amendment will weaken the national government more than the Articles of Confederation. Under the Articles, the States did not have to follow national directives, but the States did not have the power to repeal national laws. Under the Repeal Amendment, the States would have that power, which means the States would have the ability to directly and indirectly dictate national law and policy (as described three paragraphs above). That will weaken the national government far more than the Articles of Confederation could have. Another way to view this is that under the Articles of Confederation, the national government was weak by design and at its creation. The Repeal Amendment would take the strong national government designed and established by the Constitution and erode it.
And this is just the start of what could happen under the Repeal Amendment.
D. Think "Washington" is bad now? Just wait until another layer is added.
Here are common complaints about "Washington:" too much red tape and inefficiency, lobbyists have too much influence, there is too much corruption, and members of Congress are too concerned about their own personal interests.
I have news for everyone...the Repeal Amendment will not solve these problems and will only make them worse. Think about it. "Washington" will still exist, even if the federal government is weakened. Since the Repeal Amendment would still leave the direct legislative and executive power in the federal government, there still have to be lawmakers in Washington, and that means there will still be lobbyists and corruptive influences there. However, there would also be new people who could have both a direct and indirect power over national law and policy--the legislators in each State. Overnight, lobbyists, corporate interests, fundraisers, and general douchebags would not limit themselves to Washington. Suddenly there would be 50 more places for these people to infest. Yes, I know that they are already there now, but the Repeal Amendment would give them another reason and another objective. Right now, State legislators have no power over what happens in "Washington," but under the Repeal Amendment they would. The Repeal Amendment would thus give lobbyists and other corrupting influences more opportunities to do that voodoo that they do so well--and more ways to mess up our national system, by subjecting it to more corruption and inefficiency. The Repeal Amendment will not streamline the federal lawmaking process. It will instead have the potential to bog it down and dirty it up even more.
As I said in V.B above, adding another element to the national governing structure would increase gridlock, and now I will say that adding that additional element would make things more "Washington"-like. Think about it. If "Washington" is already too complicated, layered, and inefficient, does it make sense to add another layer? How is that going to solve anything? And the reality is that the Repeal Amendment would add not just one element or layer, but more like 50, as in every single state. Every single State would have the ability to affect national policy. That means that not only would the country have to deal with 545 members of Congress but every single legislator in every single State. That would certainly add tremendously to the probability that "Washington" problems would spread and increase tremendously. That would, among other things, add to the inefficiency of government.
And by the way, an increase in inefficiency could lead to an increase in gridlock.
E. State governments will be less about their own States.
Furthermore, the Repeal Amendment would adversely affect the lawmaking process in the States. Once States--through their legislatures--have power under the Repeal Amendment, my guess is that the States' governments will increasingly be concerned with national laws and policies and less focused on what is going on at home.
Think about how much State campaigns and politics have been mostly about national issues. If you want to claim otherwise, you simply have not been paying attention. So many campaigns talk about what's wrong with "Washington," and candidates go to great efforts to convince voters that they are not like "Washington insiders." Candidates either try to hitch themselves to popular things about their party's performance in the federal government or they try to distance themselves from items in said performance that are not popular with their electorate. State elections are often analyzed as being some sort of referendum on either the Democratic or Republican party nationwide. States are now "Red" and "Blue," as in Republican or Democratic, and that has everything to do with national, not State, politics. In other words, politics at every level has become not just hyper partisan but has also become viewed as being tied to national politics.
And it is in this climate that the Repeal Amendment would take effect. Candidates for State office would no doubt promise voters that they would "fix Washington" because now they would have the power to do just that. This climate in combination with what I set out in V.D above would cause State governments to start focusing on and spending more time and effort on national matters, which would necessarily mean their time spent on State matters would decrease.
The Repeal Amendment would also require States to seek allies among and deals with other States. Those efforts will take up time and energy that could otherwise be spent on matters of State government that would actually affect individual States.
This increased emphasis on national policy, decreased attention to State matters, and need to make deals could also result in massive gridlock at the State level. For instance, some legislators in an individual State might not act on State-related legislation until they can get deals from other legislators on national Repeal Amendment issues, and vice versa. Other legislators in that State could refuse to act on all sorts of matters until some sort of deal was worked out with other States regarding Repeal Amendment issues. And while all of this would be going on, there would be the real potential of nothing much getting done in State legislatures. And there would be more wheeling and dealing within a single State's legislature. Why? Because there would be an increase in the number of matters subject to deal-making as a result of the effect of the Repeal Amendment, and that could once again lead to more gridlock.
F. Summary
I have not discussed all the possible effects of the Repeal Amendment. However, I will say that I feel it s probable that everything I have discussed will happen. To those who feel differently I say that the Repeal Amendment is at best a ticking time bomb of unintended consequences. This is particularly true because the Repeal Amendment contains no limitation as to its scope and reach and frequency with which it can be used. Because of those facts, I believe no one can make a credible claim that what I have described will not happen at all. It is also possible that somehow everyone would realize the need for control and discretion regarding the Repeal Amendment, but that would depend on a mass outbreak of common sense and civility, and sadly, I don't see that happening.
Unless I am wrong in my previous pessimistic pronouncement, the Repeal Amendment will not solve any problems and will in fact create more problems by eroding the national government structure as established by the Constitution, increasing gridlock at the federal and State levels, and turning the whole country into "Washington." The Repeal Amendment as it exists now is simply an extraordinarily bad idea.
posted by WCharles @ 6/27/2011 01:07:00 AM
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