I believe the federal government has grown too big and too expensive, taking over responsibilities that would be better handled by the states and local governments. Because the federal government will never voluntarily relinquish power, the states need tools to push back against federal encroachment. The Federalist Papers make clear that the founders expected states to hold their ground and fight federal incursion.
Back I the day when state legislatures elected U.S. senators, the states had an important tool to maintain a proper balance in the federal-state relationship. But once that tool was gone (and it will never be restored), states have lost power in the federal-state competition.
Now Utah Rep. Rob Bishop has introduced a proposed amendment to the U.S. Constitution, HJR100, that would provide states a much needed tool. If the amendment is ultimately approved and made part of the Constitution, the states could repeal any federal rule or regulation if two-thirds of the states, by resolution of their legislatures, are in agreement.
Upon introduction of this legislation, Rep. Bishop made the following statement: “The founding fathers crafted the Constitution to include the concept of checks and balances. Those checks and balances are not simply to provide horizontal protections, but also to ensure there are vertical safeguards between state and federal governments. This amendment halts the erosion of federalism that has chipped away at states’ powers for the past five decades. This is a tool for states to use when the executive branch of the federal government goes too far.”
The amendment has been championed by a Utahn, former bank executive David Hemingway. He has named it the Re-Empowerment of the States Amendment. Hemingway has been meeting with elected officials and other leaders for months, explaining how the amendment would help restore a better balance in the federal system.
The amendment wouldn’t immediately change anything. But it would, over time, help make the states participants and players in the nation’s governance system. For example, many states opposed the transgender bathroom directive from the federal government. The amendment would allow two-thirds of state legislatures to repeal that directive. Thus, when the White House and federal agencies draft regulations affecting states, they would need to take into account sentiment among state leaders or risk having their regulation repealed. That gives the states standing.
Getting two-thirds of states to agree on repealing a regulation would be difficult, and only the most egregious regulations would be overturned. But the states would at least have a tool to push back, giving them some power in the relationship.
Some supporters of balanced federalism would like to go further and allow two-thirds of states to repeal any federal law. But such an amendment would be very difficult to get passed by Congress, and a state-called Article 5 constitutional convention comes with its own set of problems.
Besides, most experts believe that most of the onerous burdens forced upon states by the federal government come by regulation, not by laws passed by Congress. So allowing states to repeal regulations could take care of the vast majority of state complaints regarding federal overstepping. The amendment would apply to any presidential executive order, regulation, or administrative ruling issued by an executive branch agency.
Hemingway has summarized his proposal as follows:
“The federal government was created by the 13 states joining together and ratifying the newly written constitution. The framers of the Constitution were concerned that the federal government would usurp too much power over the states. For this reason, they included the 10thAmendment in the Bill of Rights, which reserves all powers for the states that are not delegated to the federal government. They also structured Congress so that the Senate was controlled by the states. This was accomplished by having two senators from each state elected by the state legislature of the states. In 1913, the 17thAmendment was ratified which changed the election of senators from the state legislature of each state to the voters. During the past 103 years, the power and influence of the states has been greatly reduced. The Re-Empowerment of the States Amendment gives the states the power to work together and with the concurrence of two thirds of the state legislatures, the states would be able to repeal all or part of any Presidential Executive Order, regulation, other regulatory action, or administrative ruling issued by a department or agency of the federal government.
“The ratification of this amendment would put some teeth in the 10th Amendment and create a necessary check on the use of legislative and judicial power by the Executive Branch of the federal government.”