The Appeal of the Repeal Amendment

There are several efforts under way to gut last year's landmark health care legislation. The best known of these is the lawsuit brought by the attorneys general of at least a dozen states, arguing that the law is an unconstitutional exercise of the federal government's powers.

Less publicized is Utah Congressman Rob Bishop's proposal to amend the Constitution so as to permit Utah and any other state so inclined to opt out of federal laws they find disagreeable. In other words, the Congressman wants to empower state legislators to treat federal laws as the equivalents of items on a cafeteria steam table, letting them slide their trays along the federal legislative rails, picking up the McNugget laws, such as tax cuts, and passing on the brussels sprout laws, like assault weapons bans.

In all fairness to Congressman Bishop, his proposed amendment wouldn't allow Utah to act unilaterally, but would require the assent of thirty-two other states before it could put an inconvenient federal law in its rear view mirror. So, for example, if the 2,763,885 residents of Utah were to say that the Civil Rights Act of 1964 just wasn't their thing, the state would have to persuade 32 other states, whose collective population might represent around a third of the American population, to say "Hey, no problem."

Though the Congressman's proposal might seem reasonable on its face, when you study it carefully you realize it suffers from one serious flaw: the process could be immobilized by horse-trading.

Say, for example, that Utah Governor Gary Herbert calls up Arizona Governor Jan Brewer and asks her to sign on to his state's plan to end its membership in the club of states that observes the federal civil rights laws. And Governor Brewer says she's OK with that but wants in return his support for Arizona's plan to eliminate the irritating Federal Alcohol Administration Act, which prohibits her state's tequila makers from labeling their products as Seven-Up or Sprite and shipping them across state lines.

Governor Herbert is in a pickle. On the one hand, he knows that the people of Utah expect him to host a farewell party for the Civil Rights Act of 1964 on Pioneer Day. On the other, he's worried that if he assents to the quid Brewer has proposed for his pro quo, kids living in Kanab, a stone's throw from the Arizona border, will begin staggering off Coyote Buttes.

The result, of course, is that Governor Herbert has to go elsewhere to find support for Utah's yearning to be free of anti-discrimination laws. So he turns to the Governor of Oklahoma, Mary Fallin, and asks her if she's got anything against overturning a law that, among other things, requires Utah to allow African Americans to join the University of Utah marching band, resulting in the need to offer remedial rhythm classes to white students. Governor Fallin responds that she's foursquare behind him but wants in return his agreement that Utah, like Oklahoma, will designate the free-tailed bat as its official state flying mammal.

Governor Herbert knows there's already an official Utah state mammal, the Rocky Mountain elk. And he knows that chiropterologists are in unanimous agreement that free-tailed bats, unlike elk, fly. In other words, the Governor is fully aware that he would be on solid scientific ground were he to designate the free-tailed bat as the official state flying mammal.

He also knows, however, that scientific evidence will never trump the personal convictions of his constituents, and that the vast majority of them believe that all mammals that can be felled with a shotgun are of the same species. Hence, if he were to agree to the deal offered by Governor Fallin, he would very likely be hounded out of office by Utahans who would regard the decision as another example of bureaucratic redundancy.

While these hypothetical examples are troubling, they need not necessarily lead to the conclusion that Congressman Bishop's proposed constitutional amendment is unworkable because no state will be able to muster the necessary support. One idea that has been floated for easing the burden is to provide that a state seeking to opt out of a federal law will be deemed to have the support of one other state for every 250,000 illegal aliens it accepts. If the state wants to opt out of a federal law that grants medical, welfare, Social Security or burial benefits to individuals who are or might be of Latino descent, the number would drop to 150,000.

The American Enterprise Institute is said to be developing other options, including a "fast track" program for states that can prove they have routinely ignored federal law.

Whatever comes of the seed planted by Congressman Bishop, it is clear that he has made an invaluable contribution to the debate over how best to reign in the power of the federal government. He has tapped into a powerful populist stream, one that could carry him to the most important job in the land: the guy who turns out the lights.