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The Repeal Amendment: Good, Bad, and Ugly Arguments (Part 2)

Continuing from yesterday’s post, I’m rounding up and discussing arguments that have been made against the Repeal Amendment since it was introduced last week.

Nullification:

Today, “nullification” is the most effective label wielded against federalist challenges that would buttress the power of states. Especially with what I call “hard nullification”—where a state passes a law that expressly declares a federal law unconstitutional and sometimes enacts criminal penalties against federal officers who try to enforce said federal law—there’s plenty to be said against it. However, as indicated by the backlash against the Repeal Amendment from supporters of nullification, it’s not actually nullification.

Many nullification supporters oppose the Repeal Amendment because they believe it’s superfluous or will make nullification more difficult (see the comment on my post last week from “RBrown”). According to nullification supporters, a state retains the power to overturn unconstitutional federal laws, and does not have to find agreement with at least 33 other states before doing so. Nullification theorists have never come up with a satisfactory answer to the dilemma of how the federal government and other states should respond when a state nullifies a perfectly constitutional law (which, throughout history, has often been the case), so it’s very easy to look at the Civil War as the model outcome. There are less horrible but still serious cases, such as George Wallace’s resistance to school integration, where the National Guard has had to be called in by the federal government to enforce civil rights. Acting pursuant to a Repeal Amendment would avoid this because states would have to act in concert with a supermajority of states, leaving the federal government with no law to enforce.  (And, as discussed yesterday, constitutional rights could not be overturned pursuant to the Repeal Amendment.)

Other opponents of the Repeal Amendment err in considering the nullification because they simply focus on nullification itself.  In the case of the Repeal Amendment, states would not individually or collectively supplant the Supreme Court and would not be able to declare a law unconstitutional: rather, a supermajority (again, 34, not to make too fine a point of the number) of states would be able to overturn any law or regulation pursuant to the Constitution. The supporters of this amendment are trying to add a new check to federal power; they are not claiming that states already have this power.

I should add that in instances of what I call “soft” nullification—where states simply do not implement federal laws or pass state laws that conflict with federal law (such as the defunct Real ID requirements or medical marijuana)—the Repeal Amendment would not change anything: state recalcitrance is a political calculation that is extra-legal, but can work very well (that is, when the federal government doesn’t respond by withholding highway funds). 

Secession:

This gem is worth pointing out from the Casper Star: “While we trust that secession is not the goal of the amendment, it’s not far-fetched to imagine some states using that last resort if they are unsuccessful in their efforts to undo the work of Congress.”

Forgive me for being glib, but I’d kind of like to find a banjo and sarcastically strum “Dixie.”  No state has seriously considered secession since the Civil War, and I cannot imagine how the Repeal Amendment would re-invigorate the idea. Here in Wyoming, article 1, section 37 of the state constitution states that “Wyoming is an inseparable part of the federal union.” I have seen a total of one proposal at a Wyoming event in the past year that actually suggested amending this to meet secessionist ideals; it was not well received.

Tea Party Craziness:

Almost as popular as saying “nullification” is to just yell “Tea Party” in the pejorative. Obfuscation can be very effective, unfortunately.  Some believe the proposed Repeal Amendment is just a crass effort on the part of the amendment’s sponsors (including all of Wyoming’s federal legislators) to curry favor with the Tea Party.  Perhaps, but I wonder just how threatened Wyoming’s federal legislators are in the 2012 election that they would feel the need to advance a bill just to satisfy a segment of their voting base. Considering the margins of Cynthia Lummis’s victory last November and Mike Enzi’s and John Barrasso’s in 2008 (it was an unexpired term election for Barrasso), and—as previously discussed—how the Repeal Amendment is upsetting plenty of nullification-friendly Tea Partiers, this argument does not convince.

We’ll see where the Repeal Amendment goes.  It’s not likely to go very far, just considering the makeup of the U.S. Senate, but the discussion has been fruitful, and I hope it continues.

Feel free to comment with further discussion!

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Monday, 23 October 2017
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