Amendment sought to empower states to repeal any federal law

By Kate Zernike

New York Times News Service

Published: Sunday, Dec. 19 2010 11:15 p.m. MST

The same people driving the lawsuits that seek to dismantle the Obama administration's health care overhaul have set their sights on an even bigger target: a constitutional amendment that would allow a vote of the states to overturn any act of Congress.

Under the proposed "repeal amendment," any federal law or regulation could be repealed if the legislatures of two-thirds of the states voted to do so.

The idea has been propelled by the wave of Republican victories in the midterm elections. Initially promoted by Virginia lawmakers and tea party groups, it has the support of legislative leaders in 12 states. It also won the backing of the incoming House majority leader, Rep. Eric Cantor, when it was introduced this month in Congress.

Like any constitutional amendment, it faces enormous hurdles: It must be approved by both chambers of Congress — requiring them to agree, in this case, to check their own power — and then by three-quarters of, or 38, state legislatures.

Still, the idea that the health care legislation was unconstitutional was dismissed as a fringe argument just six months ago — but last week, a federal judge agreed with that argument. Now, legal scholars are handicapping which Supreme Court justices will do the same.

The repeal amendment reflects a larger, growing debate about federal power at a time when the public's approval of Congress is at a historic low. In the last several years, many states have passed so-called sovereignty resolutions, largely symbolic, aimed at nullifying federal laws they do not agree with, mostly on health care or gun control.

Tea Party groups and candidates have pushed for a repeal of the 17th Amendment, which took the power to elect U.S. senators out of the hands of state legislatures. And potential presidential candidates like Mitt Romney and Sarah Palin have tried to appeal to anger at Washington by talking about the importance of the 10th Amendment, which reserves to states any powers not explicitly granted to the federal government in the Constitution.

"Washington has grown far too large and has become far too intrusive, reaching into nearly every aspect of our lives," Cantor said this month in endorsing the repeal 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. The repeal amendment would provide a check on the ever-expanding federal government, protect against congressional overreach and get the government working for the people again, not the other way around."

Randy Barnett, a law professor at Georgetown University who helped draft the language of the repeal amendment, argued it stood a better chance than others that have failed to win ratification. "This is something state legislatures have an interest in pursuing," Barnett said, "because it helps them fend off federal encroachment and gives them a seat at the table when Congress is proposing what to do."

Barnett, considered by many legal scholars to be the intellectual godfather of the argument that the health care law is unconstitutional, first proposed the repeal amendment as part of a "bill of federalism" (like the Bill of Rights) in a column published by Forbes.com in 2009.

Tea Party groups in Virginia contacted him to discuss it. Virginia's governor, attorney general and speaker of the House, all Republicans, then expressed their support for the idea. The speaker, William Howell, joined Barnett in writing an op-ed article proposing the amendment in The Wall Street Journal in September.

Virginia was a particularly ripe place to start the argument. The attorney general, Kenneth Cuccinelli II, was among the first attorneys general to try to overturn the federal health care law, filing a lawsuit minutes after President Barack Obama signed the measure last spring.

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