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Veto Power for the States

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I was taught that the U.S. Consitution provides a system of checks and balances for the three branches of government. Congress can have its laws repealed by the Judiciary, and the Executive can be denied funding by the Congress, just for a couple of top-of-my-head examples.

The system may still be in the text, but the branches of government have decided they can interpret the Constitution as they desire. The system depends on a somewhat adversarial relationship between the branches. If all three are in basic agreement, Federal power is not checked and the whole structure goes out of balance.

And it really doesn’t matter that different political parties and factions have more weight in different branches. They’ll surely find things to argue about, but in a broader view all the big factions have a vested interest in bigger government. Constitutional limits are not vigorously enforced.

So what to do? How about adding a “Repeal Amendment” that empowers the States to nullify laws kind of like the Supreme Court can do now:

Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.

Proponents of the Amendment point out that the word “nullify” is not quite the right legal term:

The Repeal Amendment should not be confused with the power to “nullify” unconstitutional laws possessed by federal courts. Unlike nullification, a repeal power allows two-thirds of the states to reject a federal law for policy reasons that are irrelevant to constitutional concerns. In this sense, a state repeal power is more like the president’s veto power.

And the States’ veto would be line-item, as the Amendment calls for action on specific provisions of law.

The States were always intended to be a check against Federal power, through the Constitution’s amendement process. An amendment requires approval of 3/4 of the States. Such a consensus is so difficult to achieve that we’ve had only seventeen amendments ratified in the two centuries since the Bill of Rights was adopted (along with the Constitution).

The difference in thresholds is only four States. 38 would be required to pass the Repeal Amendment, with 34 needed to repeal a law once the Amendment was adopted.

I don’t know how easy it would be to get 34 Statehouses to agree on specific repeals, but just having such a power on the books would give a boost to the concept of federalism.

States would no longer need to accept the dictations of Congress as unchangeable. Nor would the States need to submit to excessive Executive meddling in their affairs. In either case, there would be recourse against the Federal government that did not depend on one of the colluding branches of centralized power.

And if it worked, maybe we could someday start talking about an amendment to give the people a similar power via super-majority referenda.