The Other Way to Repeal Obamacare
7:40 AM, Dec 21, 2010 • By JEFFREY H. ANDERSON
The New York Times reports that incoming House majority leader Eric Cantor (R., Va.) and legislative leaders in 12 states are backing a repeal amendment to the U.S. Constitution. The proposed amendment, launched by Georgetown law professor Randy Barnett, would empower two-thirds of the states, acting through their legislatures, to repeal any federal law or regulation.
It’s hard to see any downside to such a proposal. The federal government has clearly acquired far too much power, many members of this Congress and this administration are at a loss to name any limits to the scope of federal power, and the erosion of federalism has severely compromised Americans’ rights.
In The Federalist, No. 51, James Madison wrote of the “double security” that the Constitution provides “to the rights of the people” – the separation of powers, and federalism. Madison explained, “In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.”
This double security to our rights has clearly been badly eroded, culminating in the passage of Obamacare. In regard to the separation of powers, Obamacare would grant heretofore almost unimaginable powers to the secretary of Health and Human Services and to a newly created Independent Payment Advisory Board, to exercise de facto lawmaking authority from within the confines of the executive branch. In regard to federalism, Obamacare would empower the federal government to regulate and thereby control nearly every aspect of health care, all the way down to deciding what constitutes acceptable health insurance and requiring every American to buy it.
The repeal amendment, also known as the federalism amendment, would be a welcome step forward in reestablishing half of Madison’s double security to our rights. By allowing two-thirds of state legislatures to repeal any federal law or regulation, it would remind the federal government that ours is a federalist system; that federal power isn’t unlimited; and that the states have legitimate authority (not rights! — only people have rights) in all instances in which the Constitution’s enumerated powers don’t grant the federal government authority to act.
Moreover, it’s a welcome development to see proposed constitutional amendments being seriously advanced and debated. For too long we’ve been overly reticent as a citizenry about using the amendment process to provide needed corrections to our course. Article V, the amendment provision, was penned at Independence Hall, and the Founders included it for a reason.
At the same time, however, the repeal amendment, if enacted in isolation, could only do so much good. First, it would be very hard to get two-thirds of the state legislatures — most of which comprise representatives who bear far too much resemblance in thought and action to their profligate counterparts in Congress — to agree to repeal anything of particular importance.
Take Obamacare. As a result of the 2010 elections, fully half of all state legislatures will be controlled by Republicans, while about one-sixth will be under shared control, and the remaining third will be controlled by Democrats. Only the 25 legislatures under Republican control could reasonably be expected to vote to repeal Obamacare — well short of the 34 that the amendment would require for a law to be repealed.
Moreover, so long as the federal government has essentially unlimited and unchecked control of the purse and is free to spend whatever it wants (whether it has it or not), it would be all too easy for the federal government to buy off the states and thereby thwart efforts at repeal. Those who might wonder how this would happen should simply think of the Cornhusker Kickback, the Louisiana Purchase, or Gator Aid, and imagine these being applied writ large.
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