The Liberty Papers

I’m a bit late to the party, but significant discussion has been made about a potential “repeal amendment” to the Constitution. Advocated by Randy Barnett, he suggests that it is a necessary counterpunch to the 16th and 17th Amendments, which together increased the Federal government’s ability to raise revenue to do what it likes while weakening States’ ability to restrain Federal actions politically.

On the opposite side is Ed Morrissey, who has a couple of concerns about the idea. First and foremost, he doesn’t think the amendment will be presented without a Constitutional Convention, an idea that opens a Pandora’s Box with the potential to backfire so spectacularly that it truly frightens me. But second, he is concerned about the messiness of the process:

Let’s say for argument’s sake that Congress approves and the states ratify the amendment. What happens when Congress passes a law? How long do the states have to get two-thirds of the legislatures to demand repeal? Within the same session? Four years? Decades? Does it proceed along the same lines as a Constitutional amendment, where the states have seven years to ratify a veto? If the time is limited to the current session, most state legislatures won’t have time to react, and future Congresses will simply put off most of their controversial measures until lame-duck sessions.

If it isn’t limited to the same session, then this will remove a great deal of certainty and stability from the American legal system and to acts of Congress, which is after all the people’s branch. Consider tax laws on which no one could rely, regulatory and deregulatory efforts that could take years to clarify, and then think how investors both here and abroad will react in that environment. And that isn’t even getting to the budget, which appears subject to this amendment as well. The states could force a shutdown of the federal government. This seems like a prescription not just for gridlock and instability, but also an invitation for an expansion of power for the executive branch to run the federal government by executive order and agency power.

It is here that I think Ed is overstating the likelihood of states to overturn legislation. I think we are highly unlikely to see a widespread application of a repeal amendment for two reasons:

1. Getting two-thirds of states together to agree on repeal of any particular provision due to voter anger is unlikely except in the most egregious cases. I’m not sure we could get two-thirds to vote to repeal Obamacare.
2. The incentive to repeal purely federal matters isn’t there for the states. Morrissey suggests that the states might repeal particular tax provisions. Buy why would states care about Federal income or corporate tax rates that don’t directly affect their own budgets?

For these two reasons, I expect the most hoped-for results of a repeal amendment — states wholeheartedly fighting expansion of federal power — will not come to pass. I just don’t see the incentives lining up to make that happen. States have plenty of their own problems to worry about; they’re not going to trouble themselves with something that doesn’t directly affect their own powers or budgets. This doesn’t mean that such a power will never be utilized, but only in cases where public opinion is so overwhelmingly against a policy but for which Congress cannot find the will to act on their own to end it.

At the same time, I do see a very important potential application, for which the incentives line up perfectly. It’s all about unfunded mandates. The Feds have a tendency to demand certain behaviors by the States without properly funding those behaviors. It is a way for Congress to placate their own desire for control without actually paying for those desires. States have a perfect incentive to repeal laws which impose costs upon them not of their own choosing, and thus a repeal amendment could be a very powerful constraint on Congress’ ability to enact laws and regulations for which it puts the burdens on states to fund.

It is for this reason that while I don’t have high hopes that its scope will reach as widely as its proponents may claim, that I still support a repeal amendment. Cutting into Congress’ ability to saddle states — who are already in dire financial straits — with unfunded mandates will have overall positive effects. It forces Congress to pay its own way, and while Congress hasn’t shown any concern about deficit spending, it at least adds one additional check on their appetite. Adding to this the ability for states to act as an additional check on Federal action when those policies are so egregious as to override the states disincentive to act on most Federal matters is just gravy.

A repeal amendment is not the answer, but it’s certainly a step in the right direction.