The time is ripe for the states to reassert their proper place in our federal structure. We need a 27th Amendment.
Why? State legislators have griped for years that Congress passes federal programs, takes the political bow for these new wonderful goodies, then leaves the states to pay for them. I talk to a lot of legislators from both parties. This resentment is not an R thing or a D thing. They all get plenty honked off.
The last straw may be coming. Sometime about the time this column hits daylight, the U.S. Supreme Court will decide Department of Health and Human Services v. Florida. You may know it better as the Obamacare case.
There’s a chunk of this case that hasn’t received the attention the individual mandate has. The states contend that Obamacare oversteps the basic constitutional framework by mandating a vast expansion of Medicaid. The states pay for it. Tens of millions of new bodies would be on the rolls in a program designed for the very poor. Indiana can’t pay for this without a huge tax increase. Neither can any other state.
However the supremes rule, there’s a looming mood to rein in the feds.
How can states respond? Answer this pop quiz. Under the U.S. Constitution, where is ultimate sovereignty? What group of people or institutions has the final, final say in our rules of governance?
Answer: Ultimate sovereignty lies with three-fourths of the state legislatures. Without any support from the prez, governors or Congress, three-fourths of state legislatures can amend the Constitution.
Article 5 of the Constitution says that “Congress … on the application of the legislatures of two-thirds of the several states, shall call a convention of proposing amendments…” Notice Congress shall call. No wriggle room.
So two-thirds of the legislatures (34) can force Congress to propose an amendment. Then three-fourths of the states (38) can ratify said amendment. They would do so via joint resolutions of both legislative chambers (except Nebraska, which is unicameral). Joint resolutions can’t be vetoed.
We’d have to be careful to avoid a wide-open convention where any crazy thing could happen. However, my academic constitutional law buddies assure me we can limit the convention to considering one amendment only.
So herewith is my modest proposal for Amendment 27.
Section 1: The 10th Amendment to this Constitution means what it says.
Section 2: Any law enacted after the effective date of this amendment not pursuant to a specific grant of power in Article 1 Section 8 of this Constitution is null and void.
Section 3: The judicial branch shall strictly construe grants of power to the United States contained in Article 1 Section 8.
No doubt we can find legal beagles to phrase this better. But you get the picture. In 1789, 13 independent states came together to grant certain specifically limited powers to the new federal government. That’s why we have the 10th Amendment specifying that all powers not delegated to the United States “are reserved to the states or to the people.”
James Madison is rightly regarded as the “Father of the Constitution.” Madison didn’t think we needed a bill of rights because, as he argued in Federalist 45, delegated federal powers were so limited as to pose no threat. Bad call on that one, Jim.
Over the years, states have allowed Congress and the courts to neuter Amendment 10. States didn’t die; they’ve allowed themselves to be murdered. They can take that power back if they have the will.
Indiana can lead the charge. State Rep. David Frizell is chairman of the American Legislative Exchange Council. ALEC is the largest national association of state legislators.
How about it, David? Here’s a nice little project for ALEC. Appoint a lawyers committee to properly draft the amendment. Develop a model bill. Let’s see if we can get 34 legislatures to pass it.
At the least, such a movement would scare Congress to death. And that ain’t all bad.•
Styring is an economist, former Indiana Chamber of Commerce lobbyist, and former senior fellow at the Hudson Institute. Send comments to email@example.com.