The Teabagging faction of the GOP is proposing a "states' rights" change in the Constitution they call the Repeal Amendment to give states the authority to veto federal laws and regulations. This amendment would give states that already have disproportionate power in the Senate an additional obstacle to progressive legislation. Regardless of practicality or eventual outcome, it provides some insight into their real objectives. During the next two years, Republicans have indicated that they will investigate some of their conspiracy theories, such as "climategate" and their claim that President Obama wants to impose Shariah law on the U.S. They also might be focused on different measures to reorganizing government in order to shift the balance of power to the states, reduce the roles of executive and judicial branches as well as the Democratic Party and advance their coded agenda of "states' rights." While this Repeal Amendment is likely to fail, it and other measures can be tools to move their agenda forward while also taking substantive matters -- such as economy, jobs, climate change, potable water supplies, health care and civil rights -- off the table.
After the midterm elections, the Repeal Amendment was introduced in Congress by Rep. Rob Bishop (Utah-R), founder of the Western States Coalition that advocates "states' rights." The amendment is "actually the brainchild of the so-called 'nonpartisan' American Legislative Exchange Council, an 'advocacy group' funded by Philip Morris, Coors, the American Petroleum Institute, the Pharmaceutical Manufacturers of America, Koch Industries and other pillars of the right-wing establishment. ALEC’s agenda is to gut the laws against environmental degradation, health insurance abuses, corporate corruption and other obsessions of the big-money interests" in order to "destroy majority rule in this country."
With these supporters, we know the Repeal Amendment, while it sounds simple, will be bad news for our country:
Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.
The purpose of the amendment is to allow states to veto any federal "law or regulation." Federal law is not limited to statutes and regulations but also includes treaties and our Constitution. The Supremacy Clause of Article 6 provides that our Constitution, federal statutes and treaties constitute the supreme law of the land. Back in 1819, the U.S. Supreme Court held that this Supremacy Clause is the essence of the balance of powers between the federal government and the states, providing that federal laws supersede conflicting state laws. This means that state action cannot impede the federal government's valid constitutional exercise of power.
Thus, one purpose of the Repeal Amendment is to change the balance of powers existing between the federal government and our states.
Repeal Amendment supporters want to "reject a federal law for policy reasons that are irrelevant to constitutional concerns." The Cato Institute explains that states are now limited to contesting federal laws or regulations by filing a lawsuit or seeking an amendment to the Constitution. Teabaggers want an additional power that they can exercise when they disagree with policy after they lost at the ballot box and at Congress. Allowing states to overturn a federal law based on policy or Constitutional grounds would "give the states the power to decide for themselves what the Constitution means and to randomly choose to ignore Federal laws based on that interpretation."
Repeal Amendment could result in red states determining our policies and laws.
The authors of our Constitution, and remember the Tea Partiers keep talking about returning to principles of the Founders, balanced the interests of small and large states with a Senate composition of two Senators from each state and a House of Representatives where composition is based on population. The Repeal Amendment would screw balancing and favor states with small populations:
The mechanics of the amendment are also a bit odd. It would allow the repeal of any federal law - from civil rights to health care - if two-thirds of the states say so. But that could mean that the 33 smallest states, which have 33 percent of the population, have the power to overrule the 17 largest states, which have 67 percent of the population.
In other words, it is "a transparent political maneuver to institutionalize the power of minority "red states" to strike down the will of the majority of Americans."
A glance at the electoral map shows that the smaller states are overwhelmingly Republican. Nineteen of the 33 smallest states are "red." Thus, the Repeal Amendment looks an awful lot like a Republican scheme to cancel out Democratic political influence, which is strongest in large states like New York, California, and Illinois.
The Repeal Amendment is more like the Articles of Confederation than our Constitution.
This Repeal Amendment bill is supported by Eric Cantor, who will be the new House majority leader, and by legislative leaders in 12 states: Florida, Georgia, Indiana, Iowa, Minnesota, Missouri, Montana, New Jersey, South Carolina, Texas, Utah, and Virginia. Cantor maintains we need the Repeal Amendment:
In order to return America to opportunity, responsibility, and success, we must reverse course and the Repeal Amendment is a step in that direction.
Sometimes when an extremist yearns for those earlier supposedly idyllic years, their audience may think s/he is referencing a return to some part of the 20th Century. Think earlier.
The Repeal Amendment is more similar to the Articles of Confederation that "governed" the U.S. based on co-equal states that had the power to nullify actions of the federal government than the Constitution that our Founders created to replace the Articles by transferring powers from the states to the federal government.
It should be remembered that the Articles of Confederation failed as a model of government. A single-house Congress was the principal governmental body: "No independent executive, to carry out the laws, or autonomous court system, to administer the legal and judicial system or to adjudicate disputes between the Federal Government and the States, were provided." Financial affairs were one of economic instability because Congress did not have authority to levy taxes but could only request money from the States. As now, debt was owed to foreign lenders. Congress also did not have the authority to regulate interstate and foreign commerce; instead the states "negotiated separately with foreign powers on commercial matters to the detriment of the overall economy." The result was "social unrest passed beyond the grumbling" as there were "combustibles in every State, which a spark might set fire to."
This is not to say that the Repeal Amendment would include all the failures of the Articles of Confederation. However, the extremist GOP want to weaken President Obama as the executive, weaken the courts, maintain an imbalanced tax system and weaken the commerce clause. The "unintended consequences" of the Repeal Amendment also need to be considered. For example, states may veto tax laws but do not have the obligation to decrease appropriations due to lost tax revenues.
One editorial described this Repeal Amendment movement as nothing more than a "political power play" based on revisionist history of "states' rights" that years ago had 11 states wanting to dictate the will of the US and then secede from our Union:
A central Tea Party theme is that it is rooted in the principles of the Founding Fathers [of our Constitution], including their purported belief in a weak federal government. But that’s not necessarily true. There are Founding Fathers who wouldn’t be welcome at a modern Tea Party rally, and the country’s early leaders had many divergent opinions and significant disagreements. There was debate over whether states could nullify the federal government’s actions, and it’s notable that the Founding Fathers didn’t give states that right. The revisionist history is troubling, particularly when it comes to the issue of states’ rights. For example, last Monday a group in Charleston, S.C., held a "Secession Ball" to celebrate the 150th anniversary of the state’s secession from the United States. The ball featured a historic re-enactment and a chance for attendees to see the actual "Ordinance of Secession."
It is stunning that anyone would celebrate secession, particularly given that South Carolina tried to leave the union to protect legalized slavery.
The Civil War should have ended much of the debate on states’ rights, but the issue has persisted, including an attempt by several Southern states in the 1950s to find a way to override the Supreme Court’s landmark school desegregation ruling Brown v. Board of Education. Throughout the history of the country, states’ rights have been asserted on many divisive issues.
While the "chances of the proposal becoming the Constitution’s 28th Amendment are exceedingly low," the proposal can be a tool to push politics further to the right.
With the Equal Rights Amendment as a model, it demonstrates the scope of the Tea Party’s ambition to drive politics and law far to the right. The E.R.A. failed to win passage, but it influenced Congress and the courts in equalizing the law’s treatment of gender.
And, sometimes the wacky, fringe arguments just need time and persistence to bear some fruit:
Still, the idea that the health care legislation was unconstitutional was dismissed as a fringe argument just six months ago — but last week, a federal judge agreed with that argument. Now, legal scholars are handicapping which Supreme Court justices will do the same.
The repeal amendment reflects a larger, growing debate about federal power at a time when the public’s approval of Congress is at a historic low. In the last several years, many states have passed so-called sovereignty resolutions, largely symbolic, aimed at nullifying federal laws they do not agree with, mostly on health care or gun control.
This Repeal Amendment can also help explain the "anger-fueled, myth-based politics of the populist new right" and the need for a left populist movement:
In past economic crises, populist fervor has been for expanding the power of the national government to address America’s pressing needs. Pleas for making good the nation’s commitment to equality and welfare have been as loud as those for liberty. Now the many who are struggling have no progressive champion. The left have ceded the field to the Tea Party and, in doing so, allowed it to make history. It is building political power by selling the promise of a return to a mythic past.