Legal Commentary

The Case for a ?Repeal Amendment?

By Randy Barnett

William Howell, the Speaker of the Virginia House of Delegates, and I have an op-ed in today?s Wall Street Journal making the case for a constitutional amendment giving 2/3 of state legislatures the power to repeal any federal law or regulation. Here is the wording of the Repeal Amendment:

?Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.?

As we explain:

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 provides a targeted way to reverse particular congressional acts and administrative regulations without relying on federal judges or permanently amending the text of the Constitution to correct a specific abuse.

The Repeal Amendment should not be confused with the power to ?nullify? unconstitutional laws possessed by federal courts. Unlike nullification, a repeal power allows two-thirds of the states to 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.

This amendment reflects confidence in the collective wisdom of the men and women from diverse backgrounds, and 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.

Congress could re-enact a repealed measure if it really feels that two-thirds of state legislatures are out of touch with popular sentiment. And congressional re-enactment would require merely a simple majority. In effect, with repeal power the states could force Congress to take a second look at a controversial law.

You can read the whole thing here. (If this link is behind the subscriber wall, use the email button to send the page to yourself. You will receive an email with a link that will work for 7 days.) 

Some readers may recall this was idea was one of the 10 amendments that comprised the Bill of Federalism I proposed in a Forbes.com article over a year ago. Of all those proposals, this one is the most transparent in its meaning and effect, and has the virtue of being ?self-executing? in the sense that it does not rely on the judiciary to check the powers of Congress. 

Not only has the idea gained the interest of the Speaker of the Virginia House of Delegate and several state legislators in Virginia, but legislators from other states have expressed enthusiasm as well. And I know at least one Congressman who would like to sponsor it in the House. So you may well be hearing more about this in the future. If you do, remember you heard it here first.

UPDATE: On Opinio Juris Julian Ku asks ?If the States Can Repeal Federal Law, Can They Also ?Repeal? Treaties?? The language of the Repeal Amendment adopts that of the Supremacy Clause of Article VI, which reads (with my brackets inserted):

[a] This Constitution, and [b] the laws of the United States which shall be made in pursuance thereof; and [c] all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land. . . .

So according to the Constitution, ?laws of the United States? made in pursuance of the Constitution are distinct from either the Constitution itself or treaties, though all three comprise the ?law of the land.?

Full post as published by The Volokh Conspiracy on September 16, 2010 (boomark / email).