Article V convention needed to countermand federal encroachment

Rep. Merrill Nelson, R-Grantsville, is a thoughtful proponent of balanced federalism. He’s spent a lot of time on the issue, working on ways to elevate states to their proper role in the federal system.

Thus, when Pres. Biden recently ordered businesses with 100 employees or more to require employees to receive COVID-19 vaccinations or be fired, Nelson joined many Utah leaders in opposing the mandate. He was in good company with most Utah legislators, Gov. Spencer Cox, Atty. Gen. Sean Reyes, and others.

But in his response to the massive federal intrusion, Nelson didn’t just state his opposition. He also suggested a remedy. Nelson has noted that states are weak players in the federal system. Outside of a federal court challenge, states currently have no reliable protocol or way to push back against federal overreach.

Here is part of a message Nelson sent to his legislative colleagues: “In situations like this, when the federal government has issued an edict that is plainly unconstitutional and violative of states’ rights, the states need a summary procedure or remedy to resist or invalidate that edict.  One of the primary purposes of our Article V resolution calling for a convention of states is to propose a constitutional amendment giving states the power to abrogate or countermand an unlawful federal action based on the legislative resolutions of thirty states opposing the action.  This summary, unified, and orderly procedure or remedy would thus not be dependent on a costly, protracted, and uncertain federal court challenge, which we now face. Biden’s order illustrates the growing imbalance of power in our federal system and the need for a constitutional adjustment that empowers the states to stop federal encroachments.”

Nelson is absolutely right. States need a procedure or protocol that restores them as equal partners in the federal system. They need the ability to jointly, as a super-majority of states, push back against federal encroachment.

And the only way to get there is through a constitutional amendment. The Federalist Papers make it very clear that the nation’s Founders fully expected states to fight federal intrusions. They gave states the 10th Amendment and gave state legislatures the duty to appoint U.S. senators. They also gave states the ability to amend the Constitution. Those three constitutional provisions were tools the Founders granted states, and expected them to use to counter federal ambition and notions of superiority.

But the 10th Amendment is routinely ignored; U.S. senators are now elected by popular vote (and we’ll never go back to legislative appointment); and Article V, which allows a supermajority of states to call a constitutional convention to seek remedies against a stifling federal government, has never been used.

Thus, Nelson is on the right track to suggest that states should call an Article V convention and propose an amendment giving a supermajority of states power to countermand an unconstitutional federal action.

That’s really the only way for states to regain their proper status in the federal system. It would be entirely in keeping with constitutional originalism and would produce better governance in our nation. It would not be abused, but would result in the president and U.S. Congress having to take into account the views of states.

Such an amendment would be politically neutral. Under the Trump administration, liberal states chafed at Trump’s executive orders just as much – or more so — as conservative states do under Biden. Whether Congress is controlled by Republicans or Democrats, states that don’t like federal laws, regulations or orders would have a means, a formal protocol, to push back.

The actual recission of a federal law or regulation would occur very rarely. It’s extremely difficult to get 30 states to agree on anything. But if 15 or 20 or 25 states passed resolutions to overturn an intrusive federal law, Congress would have to take note and would be more likely to take into consideration the feelings of states.

The mere fact that such a tool exists, would cause Congress and the president to think twice about imposing a law or order disliked by several states.

Thus, Nelson and other proponents of an Article V convention have identified the only sensible and practical solution. We would have far better governance, and less federal debt, if states had a bigger say in our federal system.