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Tea Party Pushes Amendment to Veto Congress

December 7, 2010
In The News
Andrea Stone Senior Washington Correspondent
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First there were angry town hall meetings and rallies. Then a voter wave that elected dozens of tea party Republicans to Congress. And now, as conservatives vow to teach Washington what the framers really had in mind, comes a proposal to amend the U.S. Constitution to give the states unprecedented power over the federal government.

The "repeal amendment," introduced Tuesday by Rep. Rob Bishop, R-Utah, with the backing of conservative lawmakers from 10 states, is aimed at checking what they see as a federal government that has run amok. Supporters say the federal stimulus package, the health care law and the auto bailout are among the reasons the measure is needed.

Indeed, on the same day the amendment was unveiled, a federal judge in Virginia threw out a legal challenge to the health care law, ruling its provisions were "within Congress' authority under the Commerce Clause" of the Constitution.

Under current law, states must go to court to overturn federal legislation and prove it violates the Constitution. The proposed amendment would give state legislatures veto power over any federal law or regulation they didn't like -- whether it passes constitutional muster or not:

"Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed."

Georgetown University law professor Randy Barnett, the amendment's author, has argued it would "help restore the ability of states to protect the powers 'reserved to the states' noted in the 10th Amendment."

"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," Barnett said. "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."

Barnett and William Howell, speaker of the Virginia House of Delegates, recently made the case for what would be the 28th Amendment if approved by Congress and ratified by three-fourths of the states. They blame the growth of federal power on politics, federal judges and two "progressive" constitutional amendments adopted in 1913: the 16th, which authorizes a federal income tax, and the 17th, which provides for the direct election of U.S. senators instead of by state legislatures.

Elected officials in Virginia, Utah, Florida, Indiana, Missouri, New Jersey, Minnesota, Georgia, Texas and South Carolina have signed on to the idea.

The measure has wide grassroots conservative support. Don Hensarling, Florida director of the 912 Project, says most in the tea party movement support the amendment. "The states need to be able to maintain their sovereignty from onerous laws and regulations that harm their citizens, and this provision will allow them to do that," he said.

Echoes of the Past

This isn't the first time supporters of states' rights have rebelled against Washington. In the 1830s, in the run-up to the Civil War, South Carolina decided it could "nullify" or refuse to follow federal law.

Backers of the repeal amendment say it has nothing to do with the historic nullification crisis. But critics say the tea party's love affair with the 10th Amendment, which the proposed amendment seeks to strengthen, is based on a false -- and disturbing -- reading.

Last year, conservatives charged President Barack Obama's stimulus bill was unconstitutional because, in their view, it trampled on the 10th Amendment's guarantee of states' rights. Former federal prosecutor Edward Lazarus rejected that argument, writing about "the long shadow that the Civil War, now more than 140 years behind us, still casts over contemporary lawmaking."

Barnett said the repeal amendment won't cure all that ails the federal government because getting two-thirds of state legislatures to agree "will not be easy and will only happen if a law is highly unpopular."

But other constitutional scholars question whether his is a realistic proposal.

John Vile, a constitutional law expert at Middle Tennessee State University and a specialist in the amendment process, said the repeal measure would tilt the government back to the Articles of Confederation. The country's first constitution was discarded by the founders, who considered it too unwieldy to go through the states to collect taxes, raise armies and conduct foreign policy.

Vile suggested that the amendment could bring the government to a grinding halt because there is no mention of a time limit for states to repeal federal action. Presidents have just 10 days to decide on a veto.

He also wondered about giving states veto power over appropriations. "Would it deprive Congress of its 'power of the purse'?" as set out in Article 1 of the Constitution, he asked. "What would happen in the unlikely event that states chose to veto defense appropriations?"

University of Texas law professor Sanford Levinson, whose many books on the Constitution include "Responding to Imperfection: The Theory and Practice of Constitutional Amendment," called the repeal amendment "a truly terrible idea."

Because the 10 largest states are home to more than 50 percent of Americans, two-thirds of the states could comprise a minority of the population. Noting that the U.S. Senate already gives small states "outrageous over-representation" compared to larger ones like Texas, Levinson said the amendment "simply adds to the insult."

It would be fairer, he said, if it required that the two-thirds of the states must also comprise two-thirds of the population. "But that would defeat their real aim," he said, "which is to impede rule by the majority of Americans who live in large, urban states."

While conservative media have played up the amendment, the odds appear to be against it.

Consider: There have been about 11,500 proposed constitutional amendments since the first 10, the Bill of Rights, were ratified in 1791. Many, like school prayer, are introduced in every session of Congress. Yet only 33 reached the ratification stage and only 27 were adopted.