January 9th, 2016


Abbott's Amendments

My governor is offering a set of constitutional amendments, the "Texas Plan," to make the federal government behave more like the Founders intended it to. That page includes a link to a 92-page pdf with history, philosophy, analysis, and footnotes backing up the case for the amendments.

After going through the doc what I haven't found is the actual text of the amendments, which will make a tremendous difference in how acceptable they are. But this is still an interesting proposal, so let's look over what we have here.

Prohibit Congress from regulating activity that occurs wholly within one State.
This is something I favor. The Feds shouldn't have authority on anything you grow and consume in your own backyard. Implmentation could be tricky. Saying "this time we mean it" would be worked around the way the original Constitutional restrictions were. Making it an affirmative defense in court that you didn't cross a state line would probably work. Assuming the wording is solid I favor this.

Require Congress to balance its budget.
I've seen a bunch of balanced-budget amendments. Most had big enough loopholes to let Congress keep spending us into bankruptcy. There's an excellent one in the Bill of Federalism (number 8). That one used the tension between the President and Congress to force Congress to balance the budget or face a President with a line item veto.

The biggest problem with Abbott's proposal is that he wants to restrict Federal spending to 18% of GDP. That's an invitation to crank up the GDP numbers. I'm sure the Treasury Department has statisticians that could take their current data and claim we have double the GDP they reported last year. Statistics are like that, especially when you get to define your own terms.

I'd need to see the wording and some analyses of how hard it would be to by-pass before supporting this. If the amendment does work I'm all for it. The federal government is already committed to spending more money than actually exists. Keeping us from going bankrupt is essential to giving us a peaceful future.

Prohibit administrative agencies—and the unelected bureaucrats that staff them—from creating federal law.
Doesn't keep Congress from rubber stamping regulations put out by the departments, but does force the legislators to take responsibility for voting for it. I'm for this.

Prohibit administrative agencies—and the unelected bureaucrats that staff them—from preempting state law.
Yes, that's a real problem, but I'm not sure how you can fix it without breaking Federal authority. I'd have to see the wording before I have an opinion.

Allow a two-thirds majority of the States to override a U.S. Supreme Court decision.
I'm generally in favor of adding feedback loops to systems. I assume the effect of the override would be the same as if the Supremes hadn't accepted the case for review. Getting two thirds of the states to agree on something is a hard barrier, especially if this includes a time limit (if there's no time limit, let's start with Plessy vs. Ferguson). Leaning for this one.

Require a seven-justice super-majority vote for U.S. Supreme Court decisions that invalidate a democratically enacted law.
This is a shift in power from the Supremes to Congress. The problem is the power shifted more by Congress abdicating responsibility by writing vague law than by the Supremes seizing it. I think before making a decision on this I'd want to look up a list of 6-3 and 5-4 decisions by the Supremes. There's also the question of what "democratically enacted" means. Anything passed by Congress? By state legislatures? Popular referendums?

Restore the balance of power between the federal and state governments by limiting the former to the powers expressly delegated to it in the Constitution.
"This time we mean it" won't work. The goal is good, the implementation could make things worse. Can't have an opinion without seeing the wording.

Give state officials the power to sue in federal court when federal officials overstep their bounds.
Yep, there needs to be more checks on the federal bureaucracy. There's a lot of petty administrators running amuck with the own empire building. I support this.

Allow a two-thirds majority of the States to override a federal law or regulation.
Again, feedback loops are good, and getting 2/3s of the states to agree on something is hard. Assuming the effect of the override is as if the law had been voted down originally, I favor this.

The plan for implementing the amendments involves a constitutional convention. I have mixed feeling about that but it's worth a try. I'm glad Governor Abbott made the proposals. This is a debate worth having.