Legal Commentary

New York Time Story on the Repeal Amendment

By Randy Barnett

Monday?s New York Times contains a remarkably fair and balanced story about the Repeal Amendment: Amendment Would Enable States to Repeal Federal Law. Here is a portion:

Under the proposed ?repeal amendment,? any federal law or regulation could be repealed if the legislatures of two-thirds of the states voted to do so.

The idea has been propelled by the wave of Republican victories in the midterm elections. First promoted by Virginia lawmakers and Tea Party groups, it has the support of legislative leaders in 12 states. It also won the backing of the incoming House majority leader, Representative Eric Cantor, when it was introduced this month in Congress.

Like any constitutional amendment, it faces enormous hurdles: it must be approved by both chambers of Congress ? requiring them to agree, in this case, to check their own power ? and then by three-quarters of, or 38, state legislatures.

Still, the idea that the health care legislation was unconstitutional was dismissed as a fringe argument just six months ago ? but last week, a federal judge agreed with that argument. Now, legal scholars are handicapping which Supreme Court justices will do the same.

The repeal amendment reflects a larger, growing debate about federal power at a time when the public?s approval of Congress is at a historic low. In the last several years, many states have passed so-called sovereignty resolutions, largely symbolic, aimed at nullifying federal laws they do not agree with, mostly on health care or gun control.

Full post as published by The Volokh Conspiracy on December 19, 2010 (boomark / email).