Texas Governor Proposes Untested Method to Curtail Federal Power Over States
Texas Gov. Greg Abbott Desmond Boylan / AP Photo
Greg Abbott wants the 50 states to push for a Constitutional Convention, which has never been used to add amendments.
Should the powers of the federal government be significantly curtailed through new constitutional amendments? Texas Gov. Greg Abbott thinks so and wants his state to lead the way.
In a speech before the Texas Public Policy Foundation on Friday, the conservative Republican unveiled a plan for nine new amendments to be added to the U.S. Constitution, all aimed at limiting powers of the federal government and judiciary over the 50 states.
What’s in Abbott’s plan?
As The Dallas Morning News, which described Abbott’s plan as “part American civics lesson, part anti-Obama diatribe," details:
The plan lays out nine specific proposed amendments that would:
- Prohibit Congress from regulating activity that occurs wholly within one state.
- Require Congress to balance its budget.
- Prohibit administrative agencies from creating federal law.
- Prohibit administrative agencies from pre-empting state law.
- Allow a two-thirds majority of the states to override a U.S. Supreme Court decision.
- Require a seven-justice super-majority vote for U.S. Supreme Court decisions that invalidate a democratically enacted law
- 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.
- Give state officials the power to sue in federal court when federal officials overstep their bounds.
- Allow a two-thirds majority of the states to override a federal law or regulation.
Twenty-seven amendments have been added to the Constitution since it first went into effect in 1789, but those have originated in Congress and were approved by three-fourths of the states through one of the processes specified in the Constitution’s Article V.
Abbott is proposing an alternate way to add amendments through Article V: a Constitutional Convention. But that’s something that hasn’t happened since representatives from the original 13 states gathered in Philadelphia in 1787 to create a new framework for a stronger central government for the new nation.
Abbott wants his state’s GOP-controlled legislature to authorize a petition for a Constitutional Convention when Lone Star State lawmakers reconvene in Austin in 2017.
A Constitutional Convention, which was also recently supported by Marco Rubio, a Republican presidential candidate and U.S. senator from Florida, would be tricky to manage if it were to ever materialize.
Critics of the convention approach say the constitutional rules governing a meeting of the states could allow for a "runaway convention," in which an unlimited number of amendments could be offered, potentially creating drastic changes to the U.S. Constitution. Tea Party groups opposed Perry's 2011 proposal on similar grounds.
Konni Burton, now a Republican state senator from Colleyville, told the Fort Worth Star-Telegram that year that such a convention could allow "anyone to offer up any number of amendments ... based on their own ideology and interests, which could ultimately radically change our Constitution." At the time, she was speaking on behalf of the NE Tarrant Tea Party.
At least 34 states would need to submit petitions to start the process that would lay the groundwork for a Constitutional Convention. And as the National Constitution Center in Philadelphia pointed out last year when there were calls to add a federal balanced budget amendment to the U.S. Constitution, the Article V process that leads to a Constitutional Convention is complicated because of Congress:
One immediate problem would be how Congress would acknowledge of the acceptance of the petitions as meeting the Article V requirement. Critics have pointed out that not all of the petitions have the same wording. Another issue would be the type of conventions called by Congress for the nomination and then ratification of an amendment or amendments.
Despite trying 22 times between 1973 and 1992, Congress wasn’t able to approve legislative rules for a constitutional convention process. In the scenario of a balanced-budget amendment convention, Congress would need to establish who can attend the convention to finalize the wording of a single amendment—or if such a convention can propose multiple amendments.
Then Congress would need to determine if state legislatures would ratify the new amendments or if an ad-hoc conventions of state residents would ratify the proposed amendments.
Read Abbott’s 92-page plan, “Restoring the Rule of Law With States Leading the Way.”
Michael Grass is Executive Editor of Government Executive's Route Fifty.
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