Reflections on the Repeal Amendment

Co-blogger Randy Barnett’s proposed Repeal Amendment has generated a great deal of controversy. The amendment would give a two thirds majority of the states the power to repeal any federal law or regulation. The idea has now been endorsed by a number of congressional Republicans, including soon-to-be House Majority Leader Eric Cantor.

Randy argues that the amendment could play a significant role in “deterring even further expansions of federal power.” Critics such as Washington Post columnist Dana Milbank claim that it would seriously undermine the Constitution or even “destroy” it .

I think that both sides’ claims are overstated. If enacted, the Repeal Amendment would have only minor effects because mobilizing 34 states (the number needed for a two-thirds majority) to oppose any congressional enactment is extremely difficult. Proponents of repeal would have to win not just 34 votes, but 67 or 68, since every state but Nebraska has a bicameral legislature. In some cases, the party that controls the state senate is not the same as the one that controls the lower house, which makes it difficult to get both to vote for the same repeal proposal.

As Randy himself points out, “[g]etting two-thirds of state legislatures to agree on overturning a federal law will not be easy and will only happen if a law is highly unpopular.” If it were that unpopular, it seems unlikely that the law would be enacted by both houses of Congress and the president in the first place. In practice, therefore, the Amendment’s effects would largely be limited to repealing a few old laws that no longer have significant political support. And even in those cases, assembling the required two-thirds majority will be difficult.

Moreover, as I noted in a 2009 post on one of Randy’s earlier amendment proposals, state governments have only very limited interest in combating expansions of federal power and often actually benefit from it. This makes it even more difficult to mobilize 34 states to repeal any federal law that has any real significance. It also dampens hopes that the Amendment would result in vigorous state resistance to future expansions of federal power.

These very same points also undercut opponents’ claims that the Amendment would severely undermine the Constitution or somehow give states the power to “nullify” federal laws at will. In reality, they would only be able to reverse laws that were highly unpopular and have little political support. Milbank and others are also off-base in suggesting that the Amendment somehow disrespects the Founding Fathers or upsets their design. The Amendment is in fact an extremely modest response to the extent to which federal power has grown far beyond the bounds envisioned by the Founders and outlined in the constitutional text. And, as Damon Root points out, the Founders were the ones who included an amendment provision in the Constitution in the first place, in part because they recognized that their work would need to be improved over time. Milbank also errs in assuming that the necessary number of states is 33 (which is actually just under two thirds) rather than 34.

On balance, I think that the Repeal Amendment would be a small but genuine improvement over the status quo. Given my view that the present size of the federal government is far too large, I welcome efforts to cut it back. A very modest step in the right direction is still worth taking. If the Repeal Amendment could be enacted with little or no effort, I’m all for it. At the same time, I think supporters of limits on federal power should carefully consider whether this Amendment is the best possible investment of our limited political capital. Given the extreme difficulty of enacting any constitutional amendment and the relatively modest payoff to be expected from this one, it’s possible that our resources might be better invested elsewhere. I’m not certain that’s true. But the relevant opportunity costs need to be carefully weighed in advance.