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Constitutional Opinions
The Big Repeal
Want to repeal unnecessary laws? It’s harder than you think.
In 1787, there were four federal crimes. Now there are over 4,000. The Code of Federal Regulations runs over 157,000 pages. America is overlawyered and overregulated, and the economy is suffering for it.
Congressmen from both parties recognize this. But reform eludes them. It isn’t necessarily their fault. Congress’s institutional structure is geared towards passing laws and regulations, not repealing them. True reform needs to happen at the institutional level.
Economics has just the tool for identifying such reforms: price theory. It’s a lot simpler than it sounds. When something is cheap, it tends to be abundant. But when that something becomes expensive, demand goes down.
Right now, the “price” of passing a law or regulation is relatively cheap. Just look how many there are! But the “price” of repealing a law is steep. It caused a national uproar when a January executive order from President Obama led to the repeal of 30 regulations.
In an average year, Congress will pass about 200 bills and agencies will enact over 3,500 regulations. Each one is viewed as an accomplishment to be touted in front of cameras and microphones. It’s good for business. Voters like it when politicians “do something.” Agencies gauge their success by how much they spend and how many rules they pass, as opposed to actual accomplishments.
Repeal is much more politically expensive. Almost every program and regulation has its vocal defenders. Many regulations give some companies an unfair advantage over their competitors. They will fight tooth and nail to keep government’s thumb on the scales. Rare indeed is the lobbyist who asks to get rid of special treatment. In short, the rules of the game are stacked in favor of regulation, and against repeal.
The rules of the game, then, need to be changed. One way to do this: give states a veto power over federal rulemaking. William Howell, Speaker of the Virginia House of Delegates, and Randy Barnett, a Georgetown University law professor, have proposed adding a repeal amendment to the Constitution that would read:
Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that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.
This, Howell and Barnett argue, would give the states a recourse without having to go though federal court. It will also make Congress more reluctant to pass rules in the first place that are burdensome at the state level.
Short of that, the House and Senate could establish repeal committees. These committees would be unable to pass laws and regulations, only to repeal them. Its members would be ineligible to sit on other committees. The only accomplishments they would be able to tout to voters would be how much they lighten Washington’s heavy hand.
Another option is to add an automatic sunset provision to all new regulations — meaning that they would expire after, say, five years unless specifically reauthorized by Congress. This kind of regulatory expiration date would ensure that only the truly necessary ones stay in the books.
Sen. Mark Warner (D-VA) recently suggested in a Washington Post op-ed that we import a successful idea from Britain. According to Warner, the British “one in, one out” strategy for regulations has “posted some impressive results” in streamlining the regulatory burden upon their economy. This plan is similar to pay-as-you-go budget rules. Each new regulation must be offset by repealing the same dollar amount-worth of old rules.
Warner points out that “Our current regulatory framework actually favors those federal agencies that consistently churn out new red tape.” He’s right. And that needs to change.
If Congress and agencies want to pass more sweeping new regulations, the political price they pay should be in line with the economic price that we all pay for them. Lightening the $1.7 trillion annual burden of federal regulations should be politically beneficial, not politically costly. The reforms listed above would make a great start.
About the Author
Ryan Young is Fellow in Regulatory Studies at the Competitive Enterprise Institute.
About the Author
Jacqueline Otto is a spokeswoman for the National Rifle Association’s Institute for Legislative Action.
Letter to the Editor View all comments (33) | Leave a comment
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Brother John| 8.9.11 @ 7:14AM
This points out one detail of the larger problems we face and simple fixes like "one in, one out". I would also suggest simple things such as prohibiting Congress from meeting more than six days a month or disallowing any legislation longer than one thousand *words*.
The cure, however, is federalism, pure and simple. Abolish federal regulatory agencies, take away their power to write unaccountable laws, and revoke the federal power of taxation upon individuals. Make the federal government dependent upon the states for its money - say, 5% of each of their budgets - and limit its involvement chiefly to foreign and defensive affairs. This, however, is the stuff of torches-and-pitchforks, no?
daddio| 8.9.11 @ 12:15PM
I'm not sure we would need pitchforks and torches (although that might be deserved and a lot of fun!), if the voting public would just realize that the Constitution was designed to give all powers to the states first. Thus the states should have the power to simply ignore all federal laws. I know subsequent law has undermined this theory. No one teaches Con Law anymore like it was supposed to be taught!
Have you considered| 8.9.11 @ 7:22AM
I like the idea of a repeal amendment to the US Constitution.
I think the bar must be higher than 2/3rds. It should be consistent with the Amendment provisions, and require 3/4ths of the states, but I do like that the House and Senate have no part in the loop.
I think this proposed language may be over broad. In other words, our original Constitution and the 9th and 10th Amendments are clear, and yet they have been transgressed at will by politicians in both parties.
What language in this proposed repeal amendment would prevent the states from repealing the electoral college? Yes, it is a constitutional requirement, and should therefore be subjected to the amendment process, but this language could be construed as a vehicle for this.
Looked at another way, all federal law currently on the books Ostensibly overlay an Enumerated Power. Like Patents laws and regulations.
Lets say that 2/3rds of the states don't like the Patent application process as is, and lets say that 2/3rds of the states decide that the secrecy of applications and prototypes is burdensome. Can these be repealed? And what occurs to the patent process in between the effect of the repeal, and the re-regulation of the process? Do the current patent applications become public?
Many questions to ask and answer, and we know that ratification language is no guarantee that the matter will later be construed as intended. Will the repeal be subject to challenge in court?
Bottom line, if the U.S. federal government had been forced by informed citizens to stay within the bounded limits of the Constitution, we would not be having this conversation. There simply is no Enumerated Power for Education, HUD, Interior, Energy, EPA, NLRB, and on and on.
Old Soldier| 8.9.11 @ 7:59AM
Why higher? It should be much lower. There are so many bad laws and regulations, we need an easy way to knock them out by the dozens.
Have you considered| 8.9.11 @ 9:29AM
Old Soldier, I explained why I thought the threshold should be higher...to be consistent with the amendment process.
Also, I just don't believe that gathering the support of 2/3rds of the states would be that difficult. Our political classes are all in cahoots with each other.
Also, it appears you presuppose, that you will agree, that the law being targeted for knock down, will be law that you agree should be knocked down. What happens if you are opposed? Will you lament that it was too easy?
You have to use your imagination and extrapolate what They, not just what we, ultimately could use this to do.
The R's will not be in the majority forever, the pendulum will swing again eventually.
Old Soldier| 8.9.11 @ 7:58AM
If you are going to amend the Constitution, let's do it right. Create a House of Repeal that meets every other year. Any federal law or regulation can be overturned by a simple majority - no committees or filibusters to block votes.
I like the sunset laws and Congress meeting less often (and getting paid less), but we need to knock down bad laws and bad regulations more aggressively
daddio| 8.9.11 @ 12:19PM
what about term limits for all reps as well? Meeting less frequently and only getting two terms to do damage? Would that decrease or increase the level of corruption?
Have you considered| 8.9.11 @ 12:50PM
The lack of term limits was an intentional part of the Constitutional design. The reason is the fear of the lame duck.
The following is a portion of Hamilton's views as found at Federalist #72:
""One ill effect of the exclusion would be a diminution of the inducements to good behavior. There are few men who would not feel much less zeal in the discharge of a duty when they were conscious that the advantages of the station with which it was connected must be relinquished at a determinate period, than when they were
permitted to entertain a hope of OBTAINING, by MERITING, a continuance of them. This position will not be disputed so long as
it is admitted that the desire of reward is one of the strongest incentives of human conduct; or that the best security for the fidelity of mankind is to make their interests coincide with their
duty. Even the love of fame, the ruling passion of the noblest minds, which would prompt a man to plan and undertake extensive and arduous enterprises for the public benefit, requiring considerable time to mature and perfect them, if he could flatter himself with the prospect of being allowed to finish what he had begun, would, on
the contrary, deter him from the undertaking, when he foresaw that he must quit the scene before he could accomplish the work, and must
commit that, together with his own reputation, to hands which might be unequal or unfriendly to the task. The most to be expected from
the generality of men, in such a situation, is the negative merit of not doing harm, instead of the positive merit of doing good.Another ill effect of the exclusion would be the temptation to sordid views, to peculation, and, in some instances, to usurpation. An avaricious man, who might happen to fill the office, looking forward to a time when he must at all events yield up the emoluments he enjoyed, would feel a propensity, not easy to be resisted by such a man, to make the best use of the opportunity he enjoyed while it
lasted""
Ken (Old Texican)| 8.9.11 @ 8:10AM
Folks,
It just doesn't matter. Without "THE BIG REPEAL".
this country is toast.
The hows can be figured out by folks smarter than me.
What we CAN do is demand the rollbacks.... across the board.
First...fire one half the regulators... period.
Maddox| 8.9.11 @ 10:52AM
Yes, Ken you are right but do you believe that is going to happen? I do not.
It doesn't matter how much Congress meets or doesn't meet if most of the members are corrupt, putting their greed above America. We cannot hope to repeal anything if we must rely on liberal judges and justices to follow the Constitution.
The country IS toast. Maybe what emerges after the chaos will be better.
JimH| 8.9.11 @ 8:25AM
If the Supreme Court acted as they ought, most of these laws would have been thrown out as unconstitutional long ago.
POST American| 8.9.11 @ 8:41AM
----NOT if the laws are themselves contra
republic, contra Constitution.
And certainly NOT when the effects of those
'laws' are economic, political and moral arson.
Born_N_Texas | 8.9.11 @ 8:57AM
All of the above are good ideas. I think the best way is to do away with Congress being a full time job. U.S Congress should meet every other year. The less they are together, the less trouble they can cause !!!!
Petronius| 8.9.11 @ 9:26AM
Those who crusade to make life painless by erecting these laws have turned desire for perfection into the ultimate fetish. Everything must be idiotproof as a byproduct of litigation. The 8' step ladder that once cost $5 will soon cost 20x that and the purchaser will have to undergo training and pay for a permit to own it and pay an annual inspection license fee to keep it under lock and key on his property lest untrained, unauthorized persons attempt to use it to replace an incandescent light bulb with same; which would be a federal crime under Title XVIII. We have had inflicted upon a once free people seat belts, helmets, car seats, life jackets, toilets which don't flush, and the food prig police are just getting warmed up with their slate of prohibitions. Back in the early 70's my late father had to give up oil painting because outlawry of lead house paint also prohibited lead based artist pigments: as if a toddler in the ghetto could possibly ingest his work. And perverts have the right to engage in anal intercourse risking contracting deadly diseases but can't have a cigarette afterward.
A Court of Repeal would be more than welcome in a world where common sense is prevalent. Here, the insanity will continue until there's not a business left for tort lawyers to sue.
"Democracy is a process of cancellations, the net result of which is zero." Lord Carlisle in the House of Lords, 1845
Phil Sukalewski| 8.9.11 @ 11:36AM
You nailed it !! We've sacrificed common sense and personal responsibility at the altar of believing someone else will be responsible for it - which ends up being the only idiot who wants the job.
Case in point - UL requires table lamps to carry a label on the cord with the following:
IMPORTANT SAFETY INSTRUCTIONS
“This portable lamp has a polarized plug (one blade is wider than the other). As a safety feature, this plug will fit in a polarized outlet only one way. If the plug does not fit fully in the outlet, reverse the plug. If it still does not fit, contact a qualified electrician. Never use with an extension cord unless plug can be fully inserted. Do not attempt to defeat this safety feature."
Anyone who can't figure this out on their own is probably too stupid to actually read the label anyway :-)
YeloStalyn| 8.9.11 @ 10:04AM
As someone already said, had the SCOTUS prefermed as they were intended, we wouldnt' be in this mess. If they did work right, any citizen could represent themselves and simply claim the 9th and 10th Amendments and win in court against the Fed. six ways from Sunday. There are so many things that this government does that are not Constitutional. Why do they get away with it? Because of us. The government is no longer scared of the people it rules... and that's our fault.
Besides the courts being a joke... the other option would be to revert to state appointed Senators rather than popularly elected ones. This would give the states a very large seat at the federal table. One they have since lost and the result is that we have become one large unified state which requires a very large amount of power be located within one single layer of government. So much power, in fact, that it has become nearly (or maybe even actually) impossible to oppose short of bloodshed.
YeloStalyn| 8.9.11 @ 10:05AM
That should read "performed" not "prefermed"
Elgordo| 8.9.11 @ 10:55AM
To COUNTER the UNFAIR DEMONIZATION of the TEA PARTY
The Dems are trying to demonize the Teaparty with generalized, nebulous attacks on them as terrorists
A Teaparty SpokesPerson(s) should clearly list the 4 or 5 itms the Teaparty wants in a discussion of the Debt Negotiations to upgrade our S&P Rating back to AAA
Then demand to know what's terrorist about these demands.
Also, the Teaparty should point out that it was the underlying policies of Obama not the contentiousness of the Debt Ceiling debate that got us to the brink of insolvency.
Chris Pedersen| 8.9.11 @ 11:11AM
Yeah, The American People are to stupid to save themselves from themselves or they would be clammering at the top of their lungs to pass the Fair Tax Plan, HR-25,
See;fairtax.org,
"Because ONLY A FOOL Would Argue AGAINST KEEPING ALL OF THEIR OWN MONEY EVERY PAYDAY"! Abolish the [I]nternal [R]acketeering [S]ervice of The United States Of La Cosa Nosrta AMERICA!
TrueBlue| 8.9.11 @ 6:18PM
Sadly too many people don't pay taxes right now, so they'd oppose it. Plus, those evil rich people would get to keep more of their money!
LiveFreeOrDie| 8.9.11 @ 11:52AM
Great idea, loaded with common sense. There's a thousand more ideas just like it but the elites aren't interested in solutions, only spending and re-election.
RJ| 8.9.11 @ 11:57AM
All laws need to be periodically reviewed to determine if they are beneficial. Unfortunately, Congress is not suited to this task.
I have been proposing a constitutional amendment which creates a "Revocation Branch" that will have the power to void existing legislation. Think of it as operating similar to the presidential veto, but only after the legislation has been in effect for a reasonable period of time, say five years.
Consistent with the Founders' principle of distributing power, this "Revocation" Branch could consist of nine individual "Revocators" with the following groups each selecting three Revocators: 1) the House of Representatives voting by state delegation; 2) the State Governors by majority vote; and 3) the President by appointment. At the end of each session of Congress, each group would select one Revocator to serve for a single six-year term. A majority vote by the Revocators would void legislation. To limit improper influence, Revocators would be prohibited from holding local, state or federal office for no less than six years after their term expired.
This selection process would 1) allow the people to be represented though their Congressional representatives and avoid the problems of a national popular election; 2) return representation to state governments which has been lacking since ratification of the 17th Amendment; and 3) include consideration of the executive branch's experience in administering legislation. The purpose of having the House vote by state delegation is an attempt to reduce the influence of party politics and is consistent with the House's procedure in voting for President under the 12th Amendment. Selection of the Revocators at the end of a session of Congress rather than at the beginning is to ensure that the selecting groups have more experience in the workings of government.
The idea of a new branch of government is novel and therefore some may see it as contrary to traditional conservatism, but its potential to promote limited government is much stronger than any abuse it could create. If a popular law was revoked, nothing would stop Congress from passing new legislation. Since our society is comfortable with a presidential veto before legislation goes into effect, why not have a subsequent opportunity to "veto" legislation after it has an unsatisfactory track record?
fwb| 8.9.11 @ 12:22PM
Why are there 4000 federal crimes today? Because everyone is ignorant of the absolute fact that Congress has no police authority except to make counterfeiting, piracies and felonies on the high seas, offenses against the law of nations, and treason crimes. Nothing more. Not at all. None of the 3996 other crimes are legitimate and everyone punished under those laws was innocent and has been violated by their own government. Anyone put to death under a federal law has been murdered by the government. The Police Power was left to the states. Don't believe me; go read some real historical writings on the Constitution. It is because of the s2piditiy of Americans that the government is out of control. The Constitution is simple. Without it, the government has absolutely no powers whatsoever. With it, the government has exactly those powers written in black and white on its pages, no more. No inherent powers. No implied powers. No supreme court created powers.
Want to fix our problem with too many laws? Then use the People's power. It's right there in the Declaration of Independence. Right where it says : "...That to secure these Rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, - That whenever any Form of Government becomes destructive to these ends, it is the Right of the People to alter or to abolish it, ..."
Under the Constitution(Our rules for them), the government can only ask permission from the People to change the Constitution by sending us amendments to approve or disapprove, AND 3/4 of us must do so of it to pass. BUT WE THE PEOPLE have the legitimate authority to amend the Constitution by a simple majority vote directly. We can carry petitions with an amendment, gather 50% + 1 person signatures and alter the Constitution.
What to do about all these laws? A Sunset Amendment. We the People must amend the Constitution with a requirement that ALL LAWS sunset, i.e. end at some short time after passage. Such a time should be in the 3 to 5 yr range. We the People DO NOT NEED to follow the amendment process in the Constitution because We the People are not bound by that constraint. Only the government is bound by the Constitution.
The real separation of power was that Congress was given certain powers, i.e. to regulate commerce (an activity, not things in or things affecting) BUT Congress has no constitutional power to enforce those regulations. The real separation is that the States are to enforce the federal regulations as the supreme law of the land BUT if the states don't think the laws are valid, the states can refuse to enforce them. Why haven't they? Because we never elect people with balls. Everyone of them is gutless.
Regulations and rules promulgated by agencies:
Delegata potestas non potest delegari. Congress has no legal authority to let any agency make any rules or regulations. We the People gave the power to make laws, rules, and regulations to the Congress. The Congress can't transfer that power, it is a breach of trust to do so. Any rule or regulation passed by Congress cannot be legally overridden by the President. The President does not have such power.
Congress is the President's boss. The three branches are not co-equal. Here's the proof. Who can fire whom? Can the President fire Congress or even one of them? No. Can Congress fire the President? Yes. Impeachment. The boss is the one that can fire.
How wrong is 99.99% of the peoples' knowledge of the Constitution? I'd say 99.99% wrong.
S2pidity - our greatest problem.
YeloStalyn| 8.9.11 @ 12:51PM
I must say... a VERY good summary of how things are supposed to work.
The question then becomes... how to mobilize the sheeple to become people? How do you tell someone that you want to take them off the government tit? Because, let's face it, the government is currently acting within the implied concent of the governed as we, as a whole, do nothing to stop them.
TrueBlue| 8.9.11 @ 6:30PM
Worse, if you manage to mobilize the people to fix the problem, how easy would it be to get the sheeple to do the exact same thing to tear it all down, following those same morons that are trying to retain power in the Congress right now?
Petronius| 8.9.11 @ 1:17PM
The people do not care how heavily their earnings are taxed, so long as their minds are not.
Bill| 8.9.11 @ 1:33PM
Not every citizen likes it when politicians "do" something. Some of us are fine with the way the system was originally set up, to result in as much gridlock as possible at the federal level. Those of us who have been fooled into liking it when politicians "do" something, it seems to me could easily be educated out of that error. Especially now that we've got the last two and a half years under our belt.
darcy| 8.9.11 @ 4:40PM
I really like the repeal committee idea. It should become part of the Republican Party platform.
There should be one in the House and the Senate, and these two bodies should be in competition to see who can repeal the greatest number of onerous laws and bureaucratic regulations, the latter of which have taken on a life of their own -- choking off our freedoms and stifling economic growth -- having little or no oversight from Congress.
jwpegler | 8.9.11 @ 4:50PM
A simpler solution would be to repeal the direct election of Senators and restore the checks that the states had on the federal government in the original Constitution.
Doc | 8.9.11 @ 9:39PM
Very good article. However I feel that the editors should mention that the true fear for all Americans should be in how easily one of these many Federal Laws may be broken by virtually anyone. In many cases these laws do not require a proof of intent as in most criminal laws. Regardless of intent or knowledge many law abiding citizens are criminally charged with Federal crimes, a fact that will haunt these individuals throughout their lives. The result is often a fine or imprisonment even when State laws decline to prosecute. Prison is a business in America, laws and regulations which encroach on every American are too often the result of lobbyists - not fair minded social structure.
RJ| 8.9.11 @ 11:58PM
You raise a very valid point, Doc.
I have been practicing law for thirty years and have seen the law become much more subjective, rendering us without really a rule of law. Now we basically have discretionary orders issued by government officials.
About 15 years ago I was at a health care conference. In attendance were two Heath & Human Services' attorneys; the Chief of Policy and the Chief of Enforcement. Separately, I asked each of them if a fairly standard hospital practice violated a federal criminal statute that had gone into effect earlier in the decade. Each deferred to the other attorney. When I got them together, they admitted that they did not know, but not to worry because they wouldn't "go after good people." That was the state of the law 15 years ago. It is much worse today and I can't imagine what a nightmare Obamacare will bring down on our heads.
Timely Renewed | 8.11.11 @ 2:40AM
The problem with the amendment to allow two-thirds of the States to rescind a specific federal law or regulation, or sunset laws and other legislative solutions, is that they are retail when the problem is wholesale. We need to redress the underlying distortions of the Constitution which have allowed the federal government to usurp the States' original constitutional powers, not nitpick at separate individual usurpations.
The comprehensive solution is to amend the Constitution to restore the original constitutional structure which limited the federal government. However, this is difficult to achieve when Congress holds a monopoly on initiating constitutional amendments. Therefore, we need an "amendment amendment" which gives the States the ability to initiate constitutional amendments without the cumbersome convention presently required by Article V. This will allow grassroots constitutionalists to efficiently devote their resources to initiating amendments carefully drafted to achieve the restoration of the original constitutional structure, instead of expending effort on particular laws or regulations. See www.timelyrenewed.com.
Nathan Cole| 8.13.11 @ 3:32AM
What needs to happen is that the process to pass a law should be changed such that instead of taking a bill back to the originating house, it should go to a joint session and be required to be passed by 2/3 of the total congressmen
Then the process for repealing laws should should be streamlined so that it takes a 1/2 of the congress to repeal a law.
Governance with consent of the governed, I feel, should no mean governance with consent of half plus one of the governed. If consensus cannot be determined I am sure the states can do a fine job.