Here is the wording of the 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"Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.”My gut reaction is against the proposal, for political reasons, mostly that I'm no more confident of the wisdom of state legislatures than I am in the wisdom of Congress.
I have some legal reservations as well. Primarily, I'm not sure that it's necessary, even if one wants the "several states" to take a more active role in repealing national laws. Recall that under the current system, the "several states" already have the power to call a Constitutional Convention, and enact an amendment to the Constitution in the convention. Because the Amendment would have the power of law, it would supersede federal statutes. So I'm not sure why another Amendment is needed to give the states a power they have already.
However, I also have several more "practical" complaints about the proposal as written. In my discussion, imagine that Congress has enacted Statutes A, B, and C.
1. "Particularly describe"? Does this mean that a legislature can say, "repeal Statute A?" Or do they have to specify provisions of the law they want to repeal?
2. Changing laws: Suppose that ten states pass resolutions to repeal Statute A. In response, Congress passes a modified version, A1, that addresses complaints raised by proponents of repeal in the states. However, another 25 states pass repeal resolutions of their own, opposing the new version of Statute A. Do the first ten states' votes for repeal count? They repealed a different law.
3. Additional Laws: Similar to the above scenario, can Congress pass a new, but related, Statute A-1 after Statute A has been repealed? How long does the "ban" on the subject matter of Statute A last? How many states must pass a repealing-the-repeal resolution? Is the statute un-repealed after the total number of states supporting repeal falls below the 2/3 mark?
4. Single Subject Rules: Many states restrict individual acts of legislation to a "single subject," although there is a wide variation of interpretation and strictness of enforcement from state to state. Does the Repeal Amendment authorize state legislatures to pass a single resolution to repeal A, B, and C regardless of their single subject rules?
5. Overlapping Resolutions: Ignoring the single subject question for now, say that 20 states pass resolutions to repeal A and B, and 17 (or whatever makes 2/3rds) pass resolutions to repeal B and C. Is Statute B repealed?
6. Ballot measures: The amendment as proposed specifically mentions legislatures. But can a state that augments its legislative process with direct democratic processes (like initiatives) pass a repeal via popular vote? And, perhaps splitting too many hairs, what about states with a "referendum" process. A referendum is a bill passed by a legislature, subject to popular approval in the next election. Does that count?
Anyway, my primary opposition is based on my personal politics as much as anything, but I'm also concerned about the legal/constitutional questions such an Amendment would entail.
UPDATED
A few other blogs have covered this, and have raised some of the same questions, and some different ones.
The Big Think notes in a post titled Repealed that they support the idea, apparently without reservations ("I can't think of a downside.") However, their commenter "Friend Daniel" lists several, which I quote verbatim:
"Initial thoughts on the repeal amendment, which I hadn’t heard about until reading your post. Since my reaction is entirely negative, I’ll present this as a list of reasons not to pass the amendment. And since I’m at work I won’t do too much explicating of my points:
"1) As an occasionally amused and often exasperated observer of the goings-on in Austin, I don’t trust state legislatures to act more wisely or judiciously than Congress, and I certainly don’t consider my state rep to be a more reliable proxy for my voice than my federal rep.
"2) Related to the first point, why is one group of elected officials to be preferred over the other? You might call this a problem of democratic epistemology: How do we know which is the “real” will of the people? The answer is that we don’t, and we don’t get closer to it by adding to the already maddening difficulty and complexity of getting legislation passed.
"3) Congress works on legislation that is national in scope. State legislatures are (quite properly) only concerned with how things affect their state. Giving states veto power over federal actions blurs the lines of authority and political accountability.
"4) In practice it would likely never or almost never be put into practice, but in the meantime it would turn every contentious federal issue into an occasion for posturing and spluttering on the part of state pols, eating up valuable time and energy from our already stretched-too-thin state legislatures.
"5) Special interest groups operate with considerably less transparancy at the state level compared to the federal level.
"6) We’ve already got a mechanism for how to deal with massively unpopular legislation. We vote the responsible parties out of office.
"7) It isn’t clear to me that we need to be able to veto unpopular legislation. Unpopular legislation that turns out to work will be a good thing. Unpopular legislation that doesn’t work can be repealed through the normal federal legislative process."
Anyway, good food for thought.
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