An amendment to the U.S. Constitution that would give state governments the collective power to repeal federal laws is being circulated to state legislatures and has at least one legislative supporter in Minnesota. State Rep. Steve Drazkowski, Repub of Mazeppa, plans to introduce the amendment in the Minnesota House.
This new idea, known as The Repeal Amendment, would add an amendment to the federal charter stating:
“Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.”
This idea is another appearance of what I have called Tentherism, which is a reference to the 10th Amendment. The 10th Amendment says that any powers not delegated by the Constitution to the federal government are reserved to the states and the people. Tentherism is shorthand for a larger body of righty beliefs about the predations of federal power since, well, almost forever, but especially in recent years.
Many state legislators, including Tom Emmer in his days as a state representative, have floated proposals that would essentially give states the power to nullify or block within their boundaries the application of federal laws if the state felt the feds had exceeded their enumerated powers. But those ideas appeared to be unconstitutional themselves, because they would conflict with the “supremacy clause” of the U.S. Constitution.
This new idea would solve that problem by amending the U.S. Constitution. In addition, because it would empower a supermajority of states to nullify a law or regulation on behalf of the whole country, it would not raise the prospect of chaos caused by some states embracing federals laws while other states rejected them.
Before taking the idea — or at least the prospect that it could become a constitutional reality — too seriously, here’s what it takes to amend the Constitution. The amendment has to be approved by two-thirds of both houses of Congress and then, usually within a seven-year period, it has to be ratified by three-fourths of the states. State ratification can be accomplished by a vote of both houses of the Legislature or — but this has been successfully done only once — the states can create special conventions to which delegates are elected for the purpose of deciding ratification of a proposed Constitutional amendment. There’s also a method for bypassing the Congress, in which two-thirds of the state legislatures petititon Congress to call a national convention to propose amendments. (This method has never been used.)
Since support for these tentherist ideas have generally been strong only within the right wing of the Republican Party and Tea Party circles, this proposal would have to gain a lot of support across the middle of the political spectrum to become serious. But, as the New York Times noted when writing about the idea this morning:
“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.”
Marianne Moran, executive director of the Repeal Amendment, told the Times that she had statements of support from legislative leaders in Minnesota, but the only Minnesota legislator who she knew about was Steve Drazkowski, a junior member who will be vice chair of the Civil Law Committee.
Drazkowski has tweeted that he hopes to sponsor the amendment in Minnesota and has published this statement:
“The federal government continues to squash the sovereignty rights of the states as guaranteed by the 10th amendment to the U.S. Constitution unrelentingly and at an accelerating pace. From countless unaffordable federal mandates imposed upon Minnesota’s healthcare system, education programs, and even families, the overreach of Congress has gone unchecked. It’s time for the states to restore their Constitutionally-protected autonomy, and that’s why I am going to sponsor the Article V application for the Repeal Amendment.”
Update: Not long after this post went up, I heard back from Rep. Drazkowski. He clarified that he does not plan to wait to see whether Congress will refer a verson of the Repeal Amendment to the states. When he says in the statement quoted just above that he will sponsor an Article V application, he refers to the never-successfully-used provision of the Constitution I mentioned above under which the states can “apply” to Congress for the calling of a constitutional convention to propose amendments. Under that process, two-thirds of states must “apply” for such a convention and whatever amendments are proposed would still have to be ratified by three-fourths of the states in order to take effect.
Drazkowski hasn’t drafted a bill, nor talked much to legislative leaders, but has talked to a few Republican colleagues (no Dems yet, but he says he will) about the idea and they like it.
“You don’t have to look any further than the fact that half of our state health care budget is controlled by strings from federal government and that the Obamacare bill was passed in direct opposition to will of the people” to understand why this idea will be well-received, Dazkowski said.
In case the idea doesn’t catch on with DFLers, Drazkowski’s idea does have one advantage. It takes a simple majority of both houses to make an “application” for such an amendment, and it doesn’t require a gubernatorial signature so, theoretically at least, an application asking for a constitutional conbention to propose an amendment enabling states to collectively repeal federal laws could be passed with just Republican votes, since, as you may have heard, the Repubs will control both houses of the Legislature in 2011-12 for the first time ever.