Earlier posts have mentioned the proposed "repeal amendment," which would enable states to repeal laws that Congress has passed. In The National Law Journal, John R. Vile of Middle Tennessee State University argues against it, saying that it would divorce power from responsibility.
Students of James Madison's Federalist No. 10 might further note that such state delegates represent much smaller districts, where he thought factions, or interest groups, are much more likely to prevail. Moreover, a mechanism for a state veto of congressional legislation might further nationalize American politics by increasing the likelihood that state elections would revolve around national issues.
In striking down the legislative veto in Immigration and Naturalization Service v. Chadha (1983), the U.S. Supreme Court noted how carefully the framers had crafted the legislative process. The current process wisely suspends the application of a law for 10 days as a president decides whether to sign, veto or allow a bill to go into effect without such a veto. By contrast, Barnett's proposal could leave adopted legislation in a precarious limbo, during which time the president and executive agencies remained uncertain as to whether to begin enforcing a law. Moreover, as the proposed amendment is currently written, laws adopted 50 years ago might be as vulnerable as those that were passed yesterday. Appropriations for national defense would be as vulnerable as others. At a time when legislation can run to hundreds of pages, state legislators are even less likely to have read legislation than the members of Congress who enacted it.
The size of the U.S. deficit suggests that legislators already find it more advantageous to mandate benefits and lower taxes than to cut programs and raise taxes. Article I, Section 8 vests Congress with certain powers and responsibilities. What if state vetoes made it impossible for Congress to carry out such powers or fulfill such duties? What would happen if state legislators began vetoing tax bills without vetoing corresponding appropriations? Who should voters hold responsible?
The Supreme Court ruled in Clinton v. City of New York (1998) that American presidents cannot exercise line-item vetoes. By contrast, the reference to "any provision of law or regulation" of the Repeal Amendment suggests that two-thirds of the state legislatures could exercise such a power. Would it be prudent to elevate a state veto above that now exercised by the president, who is elected on a nationwide basis?
