States Seek Amendment to Check Federal Power


Updated Dec. 27

As numerous state governments battle against President Obama's health care overhaul in court, some are making a quixotic push to curb the power of the federal government.

How? By passing a constitutional amendment that would allow state legislatures to overturn federal laws enacted by Congress, the New York Times reports. Under the "repeal amendment," a federal law or regulation would be repealed if legislatures in two-thirds of the states voted in favor of doing so. The effort is being led by state lawmakers in Virginia.

Republican Rep. Rob Bishop of Utah introduced the proposed amendment in Congress, and it has the support of incoming House Majority Leader, Eric Cantor (R-Va.).

The proposal has gained the support of state lawmakers in 12 states, according to the Times, and Virginia Attorney General Ken Cuccinelli wrote to his fellow attorneys general earlier this month asking for their support.

Yet it has little chance of coming to fruition, in large part because of how difficult it is to amend the Constitution. Constitutional amendments can be proposed to the states by Congress via a vote of two-thirds of both houses or from a constitutional convention called for by two-thirds of the states. Amendments can then only be ratified and take effect by approval in three-fourths of the state legislatures or state ratifying conventions.

Cuccinelli has already had some success taking on the federal government: A federal judge earlier this month ruled in favor of Cuccinelli's argument that a portion of the Affordable Care Act, the president's health care reform package, overstepped the bounds of the Constitution and violated a state law that said no resident of Virginia could be required to have health insurance.

As many as 20 other states filed a similar lawsuit in Florida and are still awaiting the outcome.

Along with Cuccinelli, other Virginia politicians in favor of the "repeal amendment" include Republican Gov. Bob McDonnell and Virginia House Speaker William Howell. In a Wall Street Journal op-ed, Howell and another one of the amendment's supporters wrote that the policy change would give states a sort of "veto power" like the president's.

"It allows thousands of democratically elected representatives outside the Beltway to check the will of 535 elected representatives in Washington, D.C.," he wrote.

Howell said the Virginia legislature will consider formally proposing the "repeal amendment" next month.

Meanwhile, another state lawmaker in Virginia is already planning to challenge the newly-passed repeal of the military's "don't ask, don't tell" law. Congress repealed the law on Saturday, and Mr. Obama is expected to sign the repeal sometime this week.

Republican Virginia Del. Bob Marshall is drafting a bill that would ban gay men and women from serving in the Virginia National Guard, the Washington Post reports.

"After 232 years of prohibiting active, open homosexuals from enlisting in our military, President Obama and a majority in Congress are conducting a social experiment with our troops and our national security," Marshall said.

While at least one gay rights advocate said the National Guard is subject to the same rules as federal military units, Marshall reportedly argues the Constitution gives Virginia the authority to uphold the ban by "reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress."

Stephanie Condon is a political reporter for You can read more of her posts here. Follow Hotsheet on Facebook and Twitter.