Consumer Law

Should The Constitution Authorize The States To Repeal Federal Law?

By Brian Wolfman

This blog has frequently covered federalism issues, most notably addressing whether federal law preempts state-law claims for damages involving products or services subject to federal regulation. It's fair to say that on those questions the bloggers here, myself included, generally see an advantage in the co-existence of state and federal law (and little evidence of the kind of conflict that the Supremacy Clause demands be resolved in favor of federal law). The Supremacy Clause does, of course, operate when Congress has expressly ousted state law, or the Constitution or federal law by design (or otherwise impliedly) has left no room for 50-state interference.

So, how about giving states the authority to repeal state law? At The Volokh Conspiracy, Georgetown law prof Randy Barnett talks about his proposed constitutional amendment that would allow 2/3rds of the states to band together to repeal any federal law or regulation. Would this be a line-item repeal power -- that is, would the states be authorized to repeal only, say, 22 U.S.C. 2222(a)(4)(i) or 99 C.F.R. 897(a)(7)(C), leaving the remainder of the provision in place? It would seem so, as long as the provision is described with particularity in the constitutional amendment (which seems easy enough in most cases). Here's Prof. Barnett's proposed language:

Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.

I suppose that Congress would be free to reenact a statutory provision repealed through this process (with the state legislatures free to rerepeal under the terms of the constitutional amendment). But what about a regulation? Would a federal agency's legislative regulation, repromulgated after its repeal by the states, have the force of law? Would that depend on whether the legislation that had authorized the repealed regulation had also been repealed (at least to the extent that it had authorized the repealed regulation)?

Full post as published by CL&P Blog on September 16, 2010 (boomark / email).