Constitutional Law

Proposed ‘Repeal Amendment’ Would Give States the Power to Override Congress

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A Georgetown law professor says a proposed “repeal amendment” to the U.S. Constitution would help stem the growth in federal power by effectively giving states a veto over federal laws and regulations.

The amendment would allow two-thirds of the states to repeal federal enactments through a vote of their legislatures, according to an opinion column in the Wall Street Journal (sub. req.). The authors are Georgetown University law professor Randy Barnett and Virginia House of Delegates speaker William Howell.

“At present, the only way for states to contest a federal law or regulation is to bring a constitutional challenge in federal court or seek an amendment to the Constitution,” Barnett and Howell write. “A state repeal power provides a targeted way to reverse particular congressional acts and administrative regulations without relying on federal judges or permanently amending the text of the Constitution to correct a specific abuse.”

Congress could still re-enact a repealed measure, according to the column. But repeal of a law by “thousands of democratically elected representatives outside the Beltway” would force Congress to take a second look at controversial laws.

The Virginia Legislature will consider the repeal amendment at its next session in January.

Hat tip to the Wall Street Journal Law Blog.

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