How a "10th Amendment" House Rule Could Help Reclaim it's Article 1 Power

What Impact Would This Rule Have?

Curbing the authority of the administrative state and restoring the Article I power of Congress may well be one of the most important priorities for  the next Congress, and enactment of a 10th Amendment based "Madison Rule" by the House that would empower allies in the states to help force reform through Congress could be a critical part of this strategy.

Here is the background:

SUMMARY:

A Rule enacted by the House Republican Majority could help Congress restore its lost Article I power from the Executive Branch by curbing the authority of federal regulators.

A pledge by 51 Members of the U.S. Senate could have a similar effect.

The Rule could make it easier for states  to persuade Congress to propose a "Regulation Freedom Amendment" to require  Congressional  approval for major new federal regulations or perhaps even a balanced budget or fiscal discipline Amendment.

Such a Rule would help to restore a long-term balance of state and federal power and help break the current deadlock in Washington that prevents passage of most pro-limited government measures.

It is called the "Madison Rule" because it recognizes and enforces the power Madison, writing in Federalist 43, declares that the Constitution gives to states to use their Article V power safely for a specific purpose.

A 10TH AMENDMENT-BASED "MADISON RULE" IN THE U.S. HOUSE OF REPRESENTATIVES TO PROTECT THE U.S. CONSTITUTION

Possible Text:

HOUSE RULE XXI: Restrictions on Certain Bills

Consideration of Amendments to the U.S. Constitution

12. It shall not be in order for the House of Representatives to consider a bill, joint resolution, amendment or conference report referring to the states for ratification under Article V of the U.S. Constitution, any Amendment to the U.S. Constitution proposed by a Convention called by Congress pursuant to Article V, that is not within the permitted scope of the Convention that is authorized by each Article V Application Resolution calling for the Convention that has been  passed by a state whose Article V Resolution calling for a Convention was relied on by Congress to call the Convention.

WHAT IMPACT WOULD THIS RULE HAVE?

1. If an Article V Convention were ever called (and this Rule does not support or oppose such a call) the Rule would protect our Constitution against the risk of a "so-called runaway convention, and especially against threats to the First and Second Amendments.

2. It would increase the persuasive power of 2/3 of the states who, without ever calling for or even threatening to call for a convention, approached Congress with a request to propose a specific Amendment to the Constitution.

3. By increasing the power of states to persuade Congress to propose a specific Amendment without a Convention, the Rule would help transform the balance of state and federal power, making it easier to take power out of Washington and give it back to the states and the people where it belongs.

BACKGROUND:

Could an Article V Convention Happen?

28 States have now called upon Congress to call an Article V Convention to draft a Balanced Budget Amendment.
8 states have called for a "Convention of the States" to propose multiple Amendments to limit the size and power of the federal government.

It is not inconceivable that a total of 34 might call for a Convention for the same purpose sometime in the next few years.

Frustration with the inability of Congress to deal with issues like the deficit or perhaps with another popular concern could potentially end up forcing the states to take action.

If 34 states did call for a convention for the same subject, there is a strong likelihood that Congress will be forced to call such a Convention.

Who Wants An Unlimited Convention?

If Congress does call a Convention, there are strong political forces that might not want such a Convention to be limited in scope.

Many thousands of activists for example, signed petitions in support of an amendment to weaken the First Amendment to permit stronger government restrictions on free speech, in the name of campaign reform.  Several states have already called for a Convention for such a purpose.

They would be hard-pressed to get the legislatures of 34 states to call a Convention for their Amendment.  But they might hope to win support for such an Amendment at a Convention called for another purpose that their allies might eventually control.

Other activists want changes in the electoral college, the 2nd Amendment or other portions of the Constitution, particularly sections that refer to Congress, since this would be a unique, once in 200 years, opportunity to bypass Congressional control of the Amendment process.  There will be no shortage of ideas.

Professors like Harvard's Larry Tribe have  argued that a Convention once convened is sovereign, with unlimited scope.  They ague that it is beyond the power of 34 states who call for a convention for a limited purpose to limit that convention's scope.

Many people fear that such a  Convention might become a free-for-all of suggested amendments, some of which could be quite dangerous to the checks and balances written into our Constitution.

The Unpredictable Convention

The risk of a Convention whose scope expands dangerously beyond that intended by the states who called for it is compounded by the possibility that Convention may be controlled by a majority of delegates very different from the views of the legislators and legislative leaders of the 34 states who originally called for the convention.

First the convention delegates may be elected by voters in some or all  states, depending on how each state, Congress and the Courts determine the method of delegate selection.

Second convention delegates may be apportioned among states equally, by electoral vote or by popular vote, depending on who controls Congress at the time the Convention is called, the language in the call to Convention, and how the Courts rule on such issues.

Third, the political climate may change dramatically between the time the legislatures of 34 states act, the time the Convention is called by Congress, and the time delegates are selected. 

Given the time it may take for Congress to act, Courts to resolve legal issues and the time it may take for states to select or elect delegates, it might take several years to actually convene a Convention, even after 34 states have acted.

How to Ensure the Scope of a Convention can be Limited, if one were ever to happen:

Under these circumstances it is critical for defenders of the Constitution and opponents of an unlimited convention to take as many steps as possible now to ensure that any Convention called by the states for one purpose, or even for one specific amendment, cannot be transformed into a unlimited Convention.

State leaders in a number of states who want to strengthen state authority to limit the scope of a convention, are now considering "no runaway convention", "delegate limitation" or "faithful delegate"  state laws to strictly limit the authority of their delegates, and to replace and punish delegates who exceed their permitted authority.  Legislatures in 7 states have passed such laws.

State leaders are also considering "protect the Constitution" State constitutional amendments that would bar that state from even considering the ratification of an Amendment from an Article V Convention that exceeded the scope of the Convention permitted by the states who called for it. 

Most observers believe that voters strongly oppose the idea of a "runaway convention" that might change the U.S. Constitution in unpredictable ways.  For this reason "protect the Constitution" measures could be quite popular.

Constitutional Arguments for a Limited Convention

There is a strong body of legal scholarship, including an official ABA Study co-authored by Warren Christopher and by Jeffry Sachs the then Dean of Harvard Law School , that supports the principle that states have the power constitutionally to limit the scope of a convention they call for.

James Madison in the Federalist Papers argued that the states have the same power as Congress to propose amendments, strongly implying that states have the power to limit the scope of a Convention.

Federalist #43:
"It (the Constitution) equally enables the general and the State governments to originate the amendment of errors, as they may be pointed out by the experience on one side or the other"

The 10th Amendment's reservation of power not delegated to the federal government to the states and the people, also supports the principle that states have the power to limit the scope a convention they call for.

The Importance of a House Rule

At least one senior Appeals Court Judge,  has suggested that the power of states to limit the scope of a Convention might be a political question for Congress to resolve.

Under these circumstances it could well  be in the interest of the House to guard against the risk of a runaway convention by adopting a measure recognizing and enforcing the Constitutional authority of states who call for an Article V Convention to limit its scope.

A House Rule could prohibit the floor consideration of any Amendment from a Convention unless that Amendment was within the scope authorized by each and every one of the 34 states who called for that Convention.

There is a strong argument that Congress has not only the power, but the duty to protect the Constitution from an unconstitutional Amendment.

If for example, a Convention were to propose an amendment that deprived a state of its equal representation in the Senate, the clear words of Article V would apply.

"no state, without its consent, shall be deprived of its equal suffrage in the Senate."

There is a strong argument, therefore, that It would be the duty of Members sworn to uphold the Constitution, to block such an unconstitutional Amendment from being submitted to the states for ratification.

In the same way, there is a strong argument that Members of Congress and  a House Majority who believe that Article V and the 10th Amendment give states the Constitutional power to limit a Convention, would be obligated to block referral to the states of an Amendment from a Convention that ignored those limits.

This could be done by a House Majority by enacting a simple House Rule like the following draft cited earlier in this memo: 
THE 10th AMENDMENT-BASED "MADISON RULE" IN THE U.S. HOUSE OF REPRESENTATIVES TO PROTECT THE U.S. CONSTITUTION FROM A RUNAWAY ARTICLE V CONVENTION

HOUSE RULE XXI: Restrictions on Certain Bills

Consideration of Amendments to the U.S. Constitution

12. It shall not be in order for the House of Representatives to consider a bill, joint resolution, amendment or conference report referring to the states for ratification under Article V of the U.S. Constitution, any Amendment to the U.S. Constitution proposed by a Convention called by Congress pursuant to Article V, that is not within the permitted scope of the Convention that is authorized by each Article V Application Resolution calling for the Convention that has been  passed by a state whose Article V Resolution calling for a Convention was relied on by Congress to call the Convention.

This draft could certainly be edited and modified.

Advantages of a Rule:

A 10th Amendment-based "Madison" Rule would have the following advantages:

1. It would put the House on record in support of the states' power to limit the scope of a Convention.

2. It would help to protect the Constitution from the risk of a runaway convention.

3. It would put opponents of the Rule in the position of appearing to favor the unpopular idea of a "runaway convention"

4. It would open up the possibility that a limited government majorities in 2/3 of the states, empowered by the Rule could call for or threaten to call for a convention strictly limited to one Amendment on a single subject or even to an up or down vote on the text of a specific Amendment.

5. One such Amendment could be a "Regulation Freedom Amendment" to require that Congress approve major new federal regulations, that would help restore the Article I power that has been taken from Congress by the Executive Branch.

The Regulation Freedom Amendment has been endorsed by 19 state legislative chambers as well as by the American Farm Bureau, RNC, and the 2016 GOP Platform.  

By simply passing Resolutions urging Congress to propose an identical amendment, without ever referring to a Convention, 67 legislative chambers in 34, 2/3, of the states could make it in the interest of  Congress to propose a limited-government oriented Amendment like a regulation freedom or balanced budget amendment that 2/3 of the House and Senate might not propose with outside pressure.

64 of the 67 state legislative chambers in the 34 most limited government minded states now have Republican majorities. In at least three KY, NM, and IA there are strong pro-energy, pro-agriculture constituencies that are skeptical of federal regulators and other abuses of federal power.  At least some Democrats in these states like the idea of curbing federal regulators.    

Congress would be far more likely to propose something similar to a reasonable Amendment suggested by the states than to call an Article V Convention, even one for a limited purpose.

Empowering States

Thus, a House Rule would help open a path for a pro-limited government coalition of 34 states to draft and then to persuade Congress to propose a specific amendment to the U.S. Constitution.

The impact of a House Rule could be to encourage states to work together on an Amendment and seek a 34 state consensus on such an Amendment that would enable them to  persuade Congress to adopt in order to avoid a Convention.

Empowering states to take a more predictable and safe path towards the process of amending the Constitution for certain specific amendments, would help restore the power of states under Article V that the authors of our Constitution intended in order to keep the power of the federal government in check.

Conclusion:

To to help Congress restore its Article I power from the Executive Branch, protect the Constitution from the risk of a runaway convention, and to empower the states as the original authors of the U.S. Constitution intended, Congress should enact a 10th Amendment-based Madison Rule.