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'Repeal Amendment' Boosts States' Rights

November 23, 2010 - 6:00pm

A "Repeal Amendment" empowering states to revoke federal laws is gaining traction among conservative lawmakers across the country.

Florida Senate President Mike Haridopolos is among the legislators leading the charge.

What we have seen over the past few years is a consistent, growing power grab from the federal government. The idea behind the Repeal Amendment is federalism at its core -- it gives power back to the states as the founders intended," said Haridopolos, R-Merritt Island.

Haridopolos has been joined by legislative leaders from Utah, Texas, Virginia, Georgia, New Jersey, South Carolina and Minnesota in advocating for the Repeal Amendment.

The amendment states:

Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed."

With Republicans seizing more statehouses and padding majorities in legislatures they already controlled, the Repeal Amendment is viewed as a way to reassert state power against an activist Democratic administration in Washington, D.C.

William Howell, speaker of the Virginia House of Delegates, notes that, 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.

"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," Howell wrote in a recent Wall Street Journal op-ed column.

Howell cautions that the Repeal Amendment should not be confused with the power to nullify unconstitutional laws possessed by federal courts.

"Unlike nullification, a repeal power allows two-thirds of the states to reject a federal law for policy reasons that are irrelevant to constitutional concerns. In this sense, a state repeal power is more like the presidents vetopower," Howell wrote.

Though ostensibly nonpartisan, the repeal movement clearly gets its energy from the right, and is flatly opposed by many on the left.

Kenneth Quinnell, director of the Florida Progressive Coalition, calls it "nothing more than a political stunt that will end up going nowhere. It shows a stunning ignorance of the Founding Fathers and their goals in creating the Constitution."

In Quinnell's view, the Constitution was created "as an explicit reaction to the abject failure of the Articles of Confederation, which gave sovereign power to the states."

"The Federalists (including James Madison, Thomas Jefferson, John Adams, Alexander Hamilton, John Jay and George Washington) explicitly sought to remove power from the states and give it to the federal government, hence the name," Quinnell says.

But Randy Barnett, a law professor at Georgetown University and co-author of the Journal article with Howell, says, "This amendment reflects confidence in the collective wisdom of the men and women from diverse backgrounds, and elected by diverse constituencies, who comprise the modern legislatures of two-thirds of the states.

"Put another way, it allows thousands of democratically elected representatives outside the Beltway to check the will of 535 elected representatives in Washington, D.C.," said Barnett, who also is a senior fellow at the libertarian CATO Institute.

Though a seemingly radical reordering of power, the Repeal Amendment would allow Congress to re-enact a repealed measure if federal lawmakers believed the overriding two-thirds of state legislatures were out of touch with popular sentiment.Congress could reverse any repeal with merely a simple majority.

Marshall DeRosa, a constitutional law scholar at Florida Atlantic University, said "The Repeal Amendment is a good idea because its not limited to constitutional questions."

But noting the amendment's self-imposed limitations, and disputing Quinnell's description of federalists, DeRosa declared, "I prefer the Jeffersonian nullification route for keeping the national government in check because Im convinced that 90 percent of what the feds do is unconstitutional."

Seth McKee, a political science professor at the University of South Florida St. Petersburg, agrees that the founders' replacement of the Articles of Confederation "ensured that the new form of government would have more centralized power in order to curtail state authority.

"Of course, the degree and scope of federal power could not have been imagined by the founders," McKee added. "Ultimately a Civil War made it clear that the federal government can do whatever it sees fit within limits set by Supreme Court rulings."

Chafing at what they see as unwanted and unlawful concentration of power in the central government, tea party/patriot groups in Florida and elsewhere are starting to jump on the repeal bandwagon. That, in turn, is strengthening the resolve of state and even federal politicians to pursue the amendment.

"Massive expenditures like the stimulus, unconstitutional mandates like the takeover of health care and intrusions into the private sector like the auto-bailouts have threatened the very core of the American free market," said U.S. Rep. Eric Cantor, R-Va.

"Its time to return America to the common-sense conservative principles of limited government, free enterprise, and individual responsibility," the House Republican whip said in reciting the tea party movement's three core principles. "The Repeal Amendment is a step in that direction.

A group of state House speakers, Senate presidents, members of Congress and other state legislators is scheduled to discuss strategy on Tuesday in Washington, just blocks from Capitol Hill.

Quinnell, for one, remains unimpressed.

"It isn't surprising that Mike Haridopolos is signing on to this in preparation for his likely run against Bill Nelson for Senate in 2012," he said.


Contact Kenric Ward at or at (772) 801-5341.

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