In Colorado’s State House of Representatives, Rep. David Balmer is preparing to open a new front next month in the battle to repeal Obamacare. Congress, Obama, and the Supreme Court will be bypassed and Obamacare will be repealed using the ultimate weapon available to the states — a state-initiated and ratified amendment to the United States Constitution that essentially declares, “Obamacare is repealed.”
The Colorado Republican’s proposed 28th Amendment reads: “The Patient Protection and Affordable Care Act, and any amendments thereto, are repealed.”
The direct constitutional repeal of Obamacare would simply erase the law. Since the amendment is retrospective and would not limit future legislation, the majority of Americans who support the repeal of Obamacare can support the amendment.
Moreover, the amendment would be impervious to claims of unintended consequences since it does not prospectively alter any powers, rights or limitations of the Constitution.
Such an amendment is not unprecedented. The 21st Amendment reads, in part, “The eighteenth article of amendment to the Constitution of the United States is hereby repealed,” and thus repealed the prohibition of alcohol.
As the supreme law of the land, a constitutional amendment repealing Obamacare would be equally unassailable.
The Constitution balances the executive, legislative and judicial branches. Foreseeing potential overreaching by the federal government as a whole, it also balances state and federal power.
This is manifested in Article V, which describes how the Constitution may be amended. Amendments may be introduced by a “Convention for proposing Amendments” that must be called “on the Application of the Legislatures of two thirds of the several States.”
The amendment becomes part of the Constitution upon ratification by three fourths of the states.
Two points should be kept in mind regarding the state-initiated amendment process. First, the Constitution states that Congress “shall” call a Convention for proposing Amendments when two thirds of the states make applications.
There is no wiggle room; if 34 states apply to Congress for the amendment, Congress must call the convention.
Second, as its name indicates, the “Convention for proposing Amendments” can only propose amendments. Any proposed amendment would have to be ratified by 38 states to go into effect. So myths of a runaway convention somehow constitutionalizing gay marriage or repealing the Second Amendment are preposterous.
Moreover, the state-led process to amend the Constitution has a proven, successful track record. Congress proposed the 17th Amendment, in part because enough states had called for a convention that it seemed if Congress didn’t act, the states would have taken the matter out of their hands.
In 1985, with the states approaching the two-thirds threshold (requesting a balanced budget amendment), Congress passed Gramm-Rudman, which called for automatic cuts if deficit targets were exceeded.
In Colorado, State Representative David Balmer will introduce a resolution in the State House requesting the U.S. Congress to call a “Convention for proposing Amendments” for the purpose of proposing an amendment to repeal Obamacare.
It’s a small start, but consider this: Over half of the states have Republican-controlled state legislatures. Of the remaining states, many could join the effort if only a handful of Democratic legislators agreed.
Getting close to the 34 states required would put tremendous pressure on Congress to act, and achieving 34 states would send a federalist shock wave through the federal government.
The plan is simple to understand, effective, and constitutionally bulletproof. With polls consistently showing the majority of voters want Obamacare repealed, now is the time for Republican state legislators across the country to join the effort and support the direct constitutional repeal of Obamacare.
Karl Dierenbach is a Colorado attorney.
Karl Dierenbach is a Colorado patent attorney.
