This is an archived article that was published on sltrib.com in 2016, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
In 1798, 11 years after the U.S. Constitution was signed in Philadelphia, James Madison wrote the Virginia Resolution while Thomas Jefferson penned the Kentucky Resolution. These resolutions were then passed by their respective state legislatures.
The purpose of these resolutions was to rally the other states to pass similar resolutions in an effort to repeal the Alien and Sedition Acts, which had recently been passed by Congress. Madison and Jefferson believed that these two laws were unconstitutional. Jefferson argued that since the U.S. Constitution was a compact with the states, the states collectively had the right to repeal unconstitutional laws. Jefferson also argued in the Kentucky Resolution that the Constitution and Amendments give the states this power.
None of the other states followed the lead of Virginia and Kentucky. In fact, most of the other states expressed opposition to the position taken by Madison and Jefferson. Several states took the position that the Alien and Sedition Acts were not unconstitutional, while others said that states don't have the power to repeal acts of Congress. Over the past 218 years, the idea of the states collectively having a check on the use of power by the federal government has been debated many times.
On Sept. 28, Reps. Rob Bishop, R-Utah, and Cathy McMorris Rodgers, R-Wash., introduced House Joint Resolution 100, better known as the "Re-Empowerment of the States Amendment":
Proposing an amendment to the Constitution of the United States to give States the authority to repeal a Federal rule or regulation when ratified by the legislatures of two-thirds of the several States.
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years after the date of its submission for ratification:
``Section 1. Upon ratification of this Amendment, any Presidential Executive order, rule, regulation, other regulatory action, or administrative ruling issued by a department, agency, or instrumentality of the United States may be repealed in whole or in part by the several States. 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 the Executive order, rule, regulation, other regulatory action, or administrative ruling to be repealed. The authority granted to the several States under this amendment does not include authority to repeal, in whole or in part, any law enacted by Congress or any Federal Court ruling.
``Section 2. Congress shall have power to enforce this article by appropriate legislation.''
This amendment is unique in that it only allows the states to collectively repeal actions of the executive branch of the federal government. This amendment does not require Congress to give up powers. The practical result would be to enhance the power of Congress since it would encourage the president to work with Congress rather than govern by issuing executive orders.
Requiring the concurrence of two-thirds of the state legislatures to repeal an executive order, rule, regulation, other regulatory action or administrative ruling is not an easy standard. Two-thirds of the states is 34 states. Only the most abusive regulations and rulings would be repealed. The most important benefit would be a more thoughtful rulemaking process from the executive branch.
The ratification of this amendment would put some teeth in the 10th Amendment and create a necessary check on the use of legislative and judicial power by the executive branch.
Remember, the states created the federal government. It is time they check and balance their creation.
W. David Hemingway is author of the Re-Empowerment of the States Amendment and a retired Executive Vice President of Zions Bancorporation.