As reported on FoxNews, Republican Senator Enzi and Republican Congressman Bishop have introduced an Amendment to the Constitution, the “Repeal Amendment,” which provides:
Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.
I.e., two-thirds of the states can repeal a given federal law or regulation. This Amendment, I think, has little chance of passing; and although it would be a move in the right direction, it is far too weak. As I noted in earlier posts, ((Michael Boldin on Randy Barnett and Federalism and Randy Barnett’s Proposed “Federalism Amendment”, Randy Barnett’s Federalism Amendment, and Randy Barnett’s “Federalism Amendment”–A Counterproposal.)) discussing a similar proposal by Randy Barnett, ((See also Randy Barnett’s Who Is Afraid of the Repeal Amendment? and The Case for a ‘Repeal Amendment’.)) a far better approach would be Amendments explicitly recognizing (a) the constitutional right of states to secede; and (b) the right of individual states to nullify any federal law, action, policy or regulation from being enforced within the state’s jurisdiction (on this, of course, see Tom Woods’s Nullification).
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Weak. How about just honoring the 9th Amendment?
So I guess some southern states could re-enact Jim Crow laws? Or slavery? Those concepts are entirely antithetical to libertarian principles. Make no mistake, the lawmakers who wish to enact this type of constitutional reform are after a few social issues which have no place in government-gay marriage, abortion, and equal rights. Equal rights SHOULD not require law, unfortunately, it has required legal reforms. Has it gone too far? Sure. The government has no business marrying anyone-we should have “civil unions” in the eyes of government agencies. Abortion…well, that is a whole ‘nother ball of wax.
If government is not allowed to have power, Jim Crow won’t come back. The reason they passed is because a few bigots didn’t like all those businesses not discriminating (discrimination tends to hurt profit margins), and since it only takes about 18% of a population to capture a legislature, they basically forced everyone into the practice. Besides, repealing a Jim Crow law is actually a legitimate power of Congress since those laws violate the 14th Amendment and would require an outright secession to truly nullify, which would generally result in a major disadvantage in that state given that all the businesses would essentially flee from such heavy handed regulation.
A more sensible approach would be a sunset amendment. Let every act of Congress, no matter what it is, expire after seven years. If they still want the program let them pass it again. It is the only way, short of revolution, we are ever going to get rid of Social Security and Medicare (and soon Obamacare will be just as politically entrenched). It would have to be an amendment though. A statute wouldn’t be enough to prevent sacred cow programs from getting exempted as “entitlements’ or “mandatory spending” (remember Gramm-Rudman).
Why 7 years? No Congress should be bound by the decisions of a previous Congress. All Federal level laws should expire on the 20th of January every 2 years. It would also need to be supplemented with a “No bundling, one subject bills only” amendment to avoid en-masse reenactments of prior bills, and one requiring debates be a minimum of 20 calendar days in length and must be the exclusive topic of discussion, so basically only one bill can be passed every 20 days, minimum, regarding one subject, and it expires with the formation of a new Congress. This would basically limit the Federal level from having any more than 36 laws active at any given time, many of which will only be active for a month or two before expiring. This would also have to be supplemented by an amendment barring passing generic instructions and barring Congress from delegating to the legislative branch any regulatory powers or ability to make any rules, only enforce the specifically explicit rules that Congress passes as law. If Congress wants to regulate Clean Air, for example, they’ll have to pass a specific bill covering Carbon Dioxide, give the necessary 20 calendar day debate, and have a specific restriction on it, and it expires the moment the new Congress takes office. If Congress later wants to change how the rule is followed, or wants to clarify, it will require another bill with another 20 day debate period.
What would be wonderful about this is that all the energy would be poured into that very first law that can be active (no Federal level law is permitted to exist in the first 20 days of Congress) because it will be the one active the longest that the 36 law maximum will unlikely ever be hit. There will be so many special interests jockying over what can be that first law that it’ll push the passage back by months.
They’re not bound by them. The doctrine of legislative supremacy means they can overrule old laws any time.
That’s true, but with the heavy volume of laws on the books, and heavy resistance to any kind of repeal of power, it’s mostly an unrealistic expectation. Of course, not like a sunset amendment would mean anything considering they could always convince the courts that there are exceptions like basically everything else written in the document.
Sunsetting would be another good idea.
I mention this and others in the section “Structural Safeguards to Limit Legislation”, pp. 175-177 of my article “Legislation and the Discovery of Law in a Free Society,” and others in Taking the Ninth Amendment Seriously.
I’ll raise you, “Any regulation proposed by any department of the Federal government must pass as a normal bill of the Congress of the United States before it shall have force of law.”
and
“Every regulation of any branch of the Federal government and every law, tax, program, or other form of legislation passed by the Congress of the United States shall expire within 7 years of enactment of this amendment or passage of said bill whichever is later.”
I wholeheartedly agree that laws on the federal level are at an economy crippling scale, primarily taxes. But, sunsetting laws create their own set of problems.
1 – There is already a substantial number of issues that legislatures have to deal with on an annual basis. Adding to that burden with a requirement to vote on 1/7th of all existing laws each year could result in an explosion of economy crippling legislation as there would be less time to scrutinize amendments tacked on to every bill.
2 – Businesses need some continuity in tax and regulatory policy in order to plan. If regulations on your industry can be substantially different in seven years or less, major capital inverstment (job creation) becomes difficult.
The fundamental idea behind this or any Repeal Amendment is that repealing any law should not be substantially more difficult than its ratification. The “Repeal Amendment appears to offer a strong measure of continuity for purposes of commerce, but also a substantive opportunity for states to repeal existing federal laws without convening a Constitutional Convention.
This tinkering just adds another layer of obfuscation.
I doubt Enzi even realizes that the problem he is trying to correct is the 17th amendment.
I believe that allowing the Nullification of unconstitutional laws by states combined with declaring unconstitutional the laws prohibiting impoundment of funds by the executive branch should do the trick without so much fuss.
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