When the Framers designed our federalist system, they assumed that the federal government would be limited to those powers actually enumerated in the Constitution and that it would exercise those powers only when authorized by statute. Further, to give the states some say in the drafting of these statutes, one half of the federal Congress—the Senate—was elected by the state legislatures themselves and designed to reflect the interests of the state governments.
Today, none of these elements of our original design remain. The Supreme Court has allowed the federal government to control nearly limitless activities, supposedly as an exercise of its power to regulate interstate commerce. The executive branch acts as its own de facto legislative branch, “interpreting” statutes through executive actions and agency rulemaking to unilaterally give itself the powers it wishes to exercise. And after the passage of the Seventeenth Amendment, senators are now elected by popular vote, meaning there is no longer any direct link between the state and federal governments. The result of these three changes is that states have less power than ever – and there’s not much they can do about it.
To solve that problem, Representatives Rob Bishop (R-UT) and Cathy McMorris Rodgers (R-WA) recently introduced the “Re-Empowerment of the States Amendment,” a proposal that would allow two thirds of the state legislatures to repeal any “Presidential Executive order, rule, regulation, other regulatory action, or administrative ruling issued by a department, agency, or instrumentality of the United States.”
Importantly, this amendment would not allow states to repeal the text of statutes that have duly passed both houses of Congress. This isn’t an amendment to change the system of bicameralism that the Framers designed; instead, it’s an amendment to restore the checks on the executive branch that existed before the massive expansion of the administrative state. As the amendment’s creator David Hemingway has explained, “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.”
Why are the states in the best position to check executive power? First, state legislators don’t have the same conflict of interest as members of the federal Congress. The House and Senate could—in theory—overrule any executive order by passing a statute with a veto-proof two-thirds majority. But in practice, they almost never do so. Members of Congress know that overruling an executive order will anger the same president they need to sign the bills that they want to pass, and so even the orders they privately oppose will usually go unchallenged.
Second, the states have the most to gain by limiting the federal government to its constitutionally designed role, and will thus be more active in policing it. As the Tenth Amendment made explicit, those powers not given to the federal government “are reserved to the States.” The Framers knew that most issues are best handled at the state level, and executive orders are often the worst culprits in usurping that original delegation. Giving the states a veto power over these agency rules simply allows them to say: “Either pass this law through Congress, or let the states handle the issue ourselves, as we did for most of our nation’s history.”
Creative amendment proposals like this one should be encouraged. (Another intriguing amendment, conceived by Mr. Hemingway’s colleague Gary Hansen, would aid this creative process by allowing states to draft and propose their own constitutional amendments without waiting for Congress to call an Article V convention). These days, it’s not that common for 34 states to agree on much of anything. But when 34 states can agree that the executive branch has gone too far, they should be able to do something about it.