Article V of the Constitution is a not-so-secret weapon for opponents of ObamaCare and other federal outrages.
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Of all the amendments he proposed — which included, among other things, limiting congressional power under the Commerce Clause to its original intent and granting the president line-item veto power — the one that has gained the most traction was what he calls the “repeal amendment.” The very simple idea would be to amend the Constitution to allow two-thirds of the states to rescind any federal law or regulation.
The advantage this has over other proposals is that it would not only be a vehicle to address current matters such as ObamaCare, but it would also be available to combat any future abuses by Congress in decades to come. It would also restore a check on federal power that was lost when the nation moved from state legislatures appointing U.S. senators to having direct elections by the people.
“It allows states to provide an extra veto on abuse of federal power,” Barnett said of his proposal.
Barnett emphasized that the amendment would be structural rather than tailored to a specific issue. “That means it actually creates a check and balance like the rest of our structural constitution that’s still in effect,” he said. It could be used, for instance, to overturn ObamaCare, or to block the Environmental Protection Agency from capping carbon emissions through the regulatory process.
He added, “It’s self-executing, meaning the courts don’t have to be relied on to enforce it.”
The idea caught the attention of Richmond Tea Party leader Jamie Radtke, who said that the concept has piqued the interest of state legislators, grassroots activists, and business owners who are seeking ways to rein in the federal government.
“It’s nonpartisan, because it’s not a policy amendment,” Radtke said. “So it should appeal to both parties, because it allows state legislatures to check a Republican or Democratic Congress.”
BECAUSE THERE HAS NEVER BEEN an Article V convention before, there is considerable speculation about the scope of Congress’s role in the process. Does it merely set the convention, and then submit any amendments to the states for ratification? Or does it have a more active role in managing the process?
“That needs to be established,” Virginia legislator LeMunyon said of choosing delegates. “Because we’ve never done it, there’s no precedent.”
In the 1980s, Sen. Orrin Hatch and several colleagues introduced a bill trying to set the parameters for a convention. It proposed replicating the structure of the U.S. Congress, allowing states to send one delegate for each congressional district, and then two additional delegates for each state, regardless of population.
Natelson said that each state would determine how to select their delegates, but that ultimately states would get only one vote each.
The other question is, what happens if 34 states petition Congress to call a convention, but Congress never acts — even though it is constitutionally required to do so — perhaps because things get gummed up in the Senate?
“That’s certainly possible,” Barnett said. “But then what you have is a constitutional crisis.” That would have to get resolved politically, and he postulated that Congress would be compelled to act, because otherwise it would face the wrath of voters. In practice, he said, “if you got to the point where there was enough public outrage to get close to an amendments convention, there wouldn’t even be one. Because you have to ask yourself, what would the political world look like at that point?”
Historically, it was Virginia and New York petitioning for a convention that led to the Bill of Rights. And Congress only acceded to amending the Constitution to allow direct election of senators once state petitions on the matter were approaching the critical mass needed to call a convention. During the 1980s, there were 32 state petitions for a convention on a balanced budget amendment, but the effort faded in the ensuing decade as concerns about deficits receded.
In the case of ObamaCare, Barnett says that any form of public backlash against the law — from the ballot measures to a push for a convention — will increase the odds that pending lawsuits challenging the law will succeed.
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