Repealing Health Care Reform by Constitutional Amendment
Georgetown lawprof Randy Barnett wants to repeal the just-passed health care reform act by an Amendment to the United States Constitution:
THE FEDERALISM RESTORATION AMENDMENT
The legislative power of Congress shall not be construed to include mandating, regulating, prohibiting or taxing the private health insurance of any person; nor shall the power of Congress to make all laws which are necessary and proper to regulate commerce among the several states be construed to include the power to mandate, regulate, prohibit or tax any activity that is confined within a single state and subject to the police power thereof, regardless of the activity’s economic effects outside the state, whether it employs instrumentalities therefrom, or whether its regulation or prohibition is part of a comprehensive federal regulatory scheme.
Aside from being oddly crafted, focusing on judicial interpretation rather than the power of Congress, this is just a ridiculous non-starter.
Look, we’ve just passed this thing with 60 votes in the Senate and very comfortable margins in the House. It’s theoretically possible, if not at all likely, that we could elect Republican majorities in both Houses of Congress in November. But, unless we elect 67 Republican Senators, we’ll also have to wait until we elect a Republican president to actually repeal the bill; until then, President Obama would surely veto a repeal of his signature achievement. So, the morning of 21 January 2013 then. (Let the new guy have his parade and celebratory parties, you impatient louts.)
Doing this will be easy, peasy compared to amending the Constitution. Doing that would require 2/3 approval in of both Houses of Congress and then send it along to the states, where 3/4 must ratify. Alternatively, ratifying conventions in 3/4 of the states could spring up and take care of the matter. That ain’t gonna happen, my friends.