Writing in the Wall Street Journal last September, Randy Barnett, a professor of constitutional law at Georgetown University, and William J. Howell, speaker of the Virginia House of Delegates, proposed an amendment to the U.S. Constitution that, if enacted, “would give two-thirds of the states the power to repeal any federal law or regulation.”
The text of the proposed amendment reads:
"Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed."
Amendment processes
After a meeting in Richmond on December 14, at which Speaker Howell made his case for the “Repeal Amendment” to a group of Virginia political activists, he explained in an interview with the Charlottesville Libertarian Examiner how the process of formally proposing and passing the amendment will take place, beginning in the Virginia General Assembly.
Under Article V of the Constitution, Howell noted, “there are two ways that an amendment to the United States Constitution can be proposed. One is the more traditional route, where two-thirds of each [chamber] of Congress passes a resolution, then is ratified by three-quarters of the states. That’s how we’ve approved the 27 amendments that we have today.”
The alternative the Framers provided “if Congress did not act,” Howell continued, “is if two-thirds of the states, through their legislatures, pass a resolution calling on Congress to call for an amendment convention; then it shall be done.”
Two-thirds of the states today means 34 states, and that many “would have to agree,” said Howell, “and that’s the route we’re proposing right now,” a call for a constitutional amendment convention.
LeMunyon and Vogel are patrons
While Howell is not the primary patron of the Repeal Amendment resolution in the House of Delegates, he pointed out that Delegate Jim LeMunyon (R-67) from Fairfax and state Senator Jill Vogel (R-27) of Winchester are the patrons in their respective chambers.
The resolution in the House has been designated HJ 542; the Senate version has not been pre-filed.
The process to pass the amendment proposal is “like any other resolution,” Howell explained.
“It will go to the appropriate committee. In the House, it will go to the Rules Committee," which is chaired by the Speaker.
Howell is confident that the Rules Committee will pass the resolution. Then it will go to the floor, where a simple majority vote is required.
After that, he said, “it goes over to the Senate and goes through the same process. It goes to committee and then to the floor.”
Howell added that, under Virginia’s legislative rules, “resolutions don’t have to have the approval of the governor, although this Governor [McDonnell] is supportive of this resolution, so once both houses have approved it, then it’s done.”
Mixed reaction
Reaction to the proposal has been mixed, Howell said, but he is optimistic.
“I’m getting a lot of support” from legislative colleagues, he said, adding that he is “getting some opposition from the usual suspects, but [the proposal] makes a lot of sense.”
Howell believes that “any legislator -- Republican, Democrat, liberal, conservative -- ought to want to have some of the authority that’s been taken away from the legislatures over the years restored.”
While there has been some talk about also repealing the 17th Amendment (which allows for the direct election of U.S. Senators), Howell does not believe the Repeal Amendment is a companion piece to that proposal.
“That’d be much tougher politically,” he said. “It’s hard to go to the people and say you’re not smart enough to elect Senators, we need to do it in the legislature.”
Speaker Howell also believes there are too many laws. (“Oh, yes,” he exclaimed when asked if that were the case.) He thinks that putting a sunset provision on each law that is passed makes good sense.
“That would make our time a little more hectic, but I think it would be appropriate,” he said.
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