January 4, 2011

Randy Barnett, on Bloggingheads, talking about his "repeal amendment"...

... with UT lawprof Sanford Levinson:



(I'm just starting to listen. I'll pick some clips out and add them below. Here's the NYT article on Randy's proposed constitutional amendment — which would empower the legislatures of 2/3 of the states to repeal any federal law.

ADDED: Randy talks about the repeal amendment here, and Sandy dumps on it here.

32 comments:

Sixty Grit said...
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Coketown said...

Every federal law should be subject to popular repeal. "If you support this law, text OMG to 44832. If you oppose, text STFU!"

Sixty Grit said...
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Lucien said...

At the risk of addressing something expalined in the interview, which I have not yet read, I have a couple of questions about the Repeal Amendment:
1) It takes a long time for two-thirds of the states to actually agree on anything (perhaps longer than the interval between Congressional elections). What happens if Congress waits until about 30 states sign on to a proposal to repeal a particular statute, and then repals the statute, and enacts a slightly different law in anothe place in the US Code, or parts of it in a number of different places? Must the states then start from scratch? How does this affect mootness issues where the offending statute is essentially capable of evading review and susceptible to repetition?

2) Since the Amendment as drafted applies to laws and regulations of the U.S., does that mean that the states can repeal the regulations promulgated by administrative agencies? Take for example, EPA regulations treating CO2 as a pollutant -- could the states repeal those, or small parts of them?

Beldar said...

It's Sanford V. Levinson, and although he holds the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair
Professor of Government at Texas Law School, he introduces himself as, and happily answers to, "Sandy."

I took a class in legal ethics from him in his first year there, 1979-1980, which was my last year there as a student, and also edited a book review he wrote for the Texas Law Review. He's a good guy for a liberal law prof, and I'd much rather drink a beer with him than with Barack Obama.

Beldar said...

(BTW, if I were a law prof and my middle name started with the letter "V," I'd probably change my name, or at least never use my middle initial as part of my name, to avoid people mistaking me for a case caption.)

Revenant said...

Lucien,

In the amendment's current form, the answers to your questions are:

(1): It would depend on how the repeal measures were phrased. If the states passed a measure repealing a specific bill then, yes, Congress could try passing the bill under a different name as a dodge around that. Under the amendment as currently written, however, the states could pass a blanket repeal of any and all laws matching certain criteria, provided all of them specified the same criteria.

(2): Yes.

Skyler said...

Lucien is dead on. Congress can react much faster than any attempt to get so many states to act. And once a law is repealed what stops congress from re-enacting the law again?

If you're going to go to the trouble of getting the states to act in concert you might as well amend the constitution to force behavior and not a specific piece of legislation.

I'm perplexed that law professors would think this a practical idea.

Lucien said...

Other than the "moving target" and administrative regulation issues already raised, what about precedential effect?

Suppose Statute X is repealed pursuant to the Amendment, and then, 10 years later, another Congress re-enacts Statute X: is Statute X then unconstitutional based on prior repeal? Could the new Statute X be re-repealed through some abbreviated process?

HDHouse said...

Someone left the lightbulb on and all the crazy moths gathered right up....

Where on God's green earth does the GOP find these people?

Penny said...

So is it "Sanford" or "Sandford"?

Since they seem to be drawing lines in the sand, "anonymous sources" tell me that, at least today, Mr. Levinson does not intend to correct any misspellings of his name.

peter hoh said...

The 17 most populous states have about 70% of the U.S. population, according to my "back of the envelope" calculations.

This proposal would create the potential that the legislatures of 33 states, representing 30% of the population, could repeal federal laws.

Penny said...

I was just saying to myself this morning...

"Self! What we need more of in this country is better posturing."

Of course I am still slumped over my computer like the rest of you, but I feel certain that Randy Barnett will have more than a few signing on the dotted line for his sandbox wars.

Revenant said...

And once a law is repealed what stops congress from re-enacting the law again?

Two things:

Firstly, it takes huge effort for Congress to accomplish anything significant. The Democrats had filibuster-proof control of Congress and it still took them a year to pass ObamaCare. They probably couldn't have done it a second time even if they had retained control of Congress.

Secondly, most legislation is quid pro quo. A minority of Congresscritters want X, and another minority want Y. Together they have enough votes for a majority, so they pass a bill containing X+Y. If the states then repeal X, the Y folks aren't doing to support passing it again -- they're going to say "wow, tough break, but the people have spoken" or words to that effect.

Revenant said...

This proposal would create the potential that the legislatures of 33 states, representing 30% of the population, could repeal federal laws.

And the problem is?

It isn't like the 30% can force laws onto the 70%. They can just prevent the 70% from forcing laws onto the 30%. If the 70% wants to live under those laws, they can pass them at the state level.

Titus said...

Sixty Grit your question reminds me of the movie Bird Cage.

Is you name Ronald Colman or Coldman? Is the d silent?

Let's hope so.

How can anyone watch these god forsaking blogging heads thangs?

I would rather give birth with my cooch sewed together.

Titus said...

My company is being purchased and all of my stock is going to be able to be executed at about $30.00 above the cost of the share that I have. I have a lot of shares too.

I am going to hit a windfall.

What should I do?

I am thinking about something with animals or the ASPCA because every time I see those commercials with the sad dog eyes I cry.

Skyler said...

Rev answered, Firstly, it takes huge effort for Congress to accomplish anything significant. The Democrats had filibuster-proof control of Congress and it still took them a year to pass ObamaCare. They probably couldn't have done it a second time even if they had retained control of Congress.

I have a different read on what happened. It may have taken a year, but that was due to procrastination. When the deadline loomed, they acted even though it was harder to do when they acted and had to create a few fictions in their rules.

Congress can act a thousands times before this repeal can be conducted, and the repeal is of limited utility.

somefeller said...

This is an academic debate, both literally and figuratively. In practice, I find it hard to believe that Congress would pass a law that 2/3 of the state legislatures would agree to repeal, or fail to repeal the law themselves before the state legislatures acted. If public opinion on a given law is so strongly opposed to that law that 2/3 of the state legislatures would act in unison, that law would probably be dealt with by the Congress. Also, while it's theoretically possible that the low-population states might gang up against the higher-population ones, I'd bet that in practice this would be a mixed bag, with small and big states coming together in different coalitions.

Revenant said...

Congress can act a thousands times before this repeal can be conducted, and the repeal is of limited utility.

Congress never moves that quickly. But even if they could, the states could fix that problem with a blanket repeal like I mentioned above.

E.g., something along the lines of "Any and all bills signed into law between the dates of 1/1/2009 and the date at which this measure is ratified by 2/3 of the states, which contains any provision assessing a tax, fee, or fine for being without health insurance, are hereby repealed".

Sure, Congress could split the mandate out of ObamaCare and pass it separately -- but it wouldn't pass separately, and neither would the rest of ObamaCare. The mandate was part of the logrolling that made passage of ObamaCare possible. Remove it and the insurance industry moves from the "for" column to the "against" column, taking their Senators with them.

XWL said...

Hmmm, you know there might be a market for a series of videos titled, "The Barely Legal Adventures of Randy and Sandy..."

Sixty Grit said...
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XWL said...

Referring to this, "ADDED: Randy talks about the repeal amendment here, and Sandy dumps on it here."

The notion of watching Sandy dumping on Randy is a bit too '2 girls 1 cup' for my taste...

XWL said...

As far as the merits of Barnett's suggested amendment, I think the framework as it already exists could work well enough, if we bothered to elect representatives who respected the Constitution and appreciated the value of a limited national government within a republic made up of largely independent states (except for the most basic of defense, security, and commercial needs).

Strange that such notions are now seen as radical.

First step to get back to where our republic might resemble a republic again, Congress whips out their power of the purse and starves the oversized and over-authoritative Executive Branch.

The phrase "enumerated powers" needs to mean something again, especially with respect to federal agencies within the Executive Branch.

Penny said...

"Congress can act a thousands times before this repeal can be conducted, and the repeal is of limited utility."

Spoil sport!

Don't you understand that the game of the moment is "Line in the Sand"?

Penny said...

For those of you who don't have the patience to play, "Line in the Sand" politics, may I suggest our newest Warrior Game System?

Titus said...

Brett Favre is a big dirty texting whore and I love him even more.

Sixty Grit said...
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Penny said...

"Line in the Sandford is gone for now."

And what a fine job you did in that sandbox, Sixty Grit!

Won't be long before you're buffing some hardwood.

Sixty Grit said...
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Dave said...

What we need is an amendment that reverses the Supreme Court. Congress already has enough checks on it's power as the recent elections proved. It's the court that needs a limiting mechanism.

Scott M said...

A single 10 year term instead of lifetime? A single six year presidential term while we're at it.