Flickr user Gage Skidmore

Texas Governor Calls for a Constitutional Convention to Cut the Federal Government's Power

Greg Abbott’s plan would give states authority to overturn federal law, Supreme Court ruling

Ar­guing that the fed­er­al gov­ern­ment has “run amok” and trampled over states’ rights, Texas Gov. Greg Ab­bott on Fri­day un­veiled a plan to over­haul the U.S. Con­sti­tu­tion through a con­ven­tion of the states.

Ab­bott, the first-term Re­pub­lic­an, rolled out nine amend­ments that he said would “re­store the rule of law in Amer­ica.” Among them: pro­hib­it­ing ad­min­is­trat­ive agen­cies from cre­at­ing fed­er­al law, re­quir­ing Con­gress to bal­ance the budget, and al­low­ing a two-thirds ma­jor­ity of states to over­ride a Su­preme Court de­cision, fed­er­al law, or reg­u­la­tion.

Ab­bott said his so-called “Texas Plan” would stop an over­reach by all three branches of the fed­er­al gov­ern­ment.

“These in­creas­ingly fre­quent de­par­tures from con­sti­tu­tion­al prin­ciples are des­troy­ing the rule-of-law found­a­tion on which this coun­try was built,” Ab­bott said in a speech Fri­day be­fore the Texas Pub­lic Policy Found­a­tion. “The cure to these prob­lems will not come from Wash­ing­ton, D.C. They must come from the states.”

Ab­bott spe­cific­ally took is­sue with the En­vir­on­ment­al Pro­tec­tion Agency’s rules lim­it­ing car­bon emis­sions from power plants, which he has long op­posed. Ab­bott said the rule moved by “un­elec­ted bur­eau­crats” would cost the state and con­sumers bil­lions of dol­lars each year in high­er elec­tri­city costs. Re­pub­lic­ans in Con­gress moved a Con­gres­sion­al Re­view Act meas­ure to over­turn the reg­u­la­tions, but Pres­id­ent Obama ve­toed it, a move Ab­bott said “ab­dic­ated the prom­ise of our Founders.”

Ab­bott said that his con­sti­tu­tion­al plan would let states re­buff the Clean Power Plan (which was based on the EPA’s au­thor­ity from the Clean Air Act) and would open up more room for states to sue. Texas is among the more than two dozen states already su­ing the EPA over the Clean Power Plan.

Ab­bott also pro­posed amend­ments to block Con­gress from reg­u­lat­ing activ­ity oc­cur­ring en­tirely with­in one state (for ex­ample, cer­tain En­dangered Spe­cies Act reg­u­la­tions, he said), pro­hib­it­ing fed­er­al agen­cies from pree­mpt­ing state law, al­low­ing states to sue in fed­er­al court, and restor­ing “the bal­ance of power between the fed­er­al and state gov­ern­ments by lim­it­ing the former to the powers ex­pressly del­eg­ated to it in the Con­sti­tu­tion.”

Ab­bott’s plan would also re­quire the U.S. Su­preme Court to have a su­per­ma­jor­ity of sev­en justices to in­val­id­ate a law passed by Con­gress. 

Un­der Art­icle V of the Con­sti­tu­tion, 34 states would be re­quired to hold the con­ven­tion, and 38 would have to sup­port any amend­ment for it to be­come law (the oth­er way to amend the Con­sti­tu­tion is with a two-thirds ma­jor­ity in both cham­bers of Con­gress). A con­ven­tion of the states has nev­er been used to amend the Con­sti­tu­tion, but the idea has gained trac­tion in con­ser­vat­ive circles.

Pres­id­en­tial con­tender Marco Ru­bio wrote in an ed­it­or­i­al for USA Today this week that, if elec­ted, he would “pro­mote a con­ven­tion of states to amend the Con­sti­tu­tion and re­store lim­ited gov­ern­ment.

“This meth­od of amend­ing our Con­sti­tu­tion has be­come ne­ces­sary today be­cause of Wash­ing­ton’s re­fus­al to place re­stric­tions on it­self,” Ru­bio wrote.

Con­ser­vat­ives have said that 27 states have passed res­ol­u­tions call­ing for a con­ven­tion for a bal­anced-budget amend­ment, a count that in­cludes some that passed such pro­pos­als more than a dec­ade ago.

On the left, four states—Ver­mont, Illinois, Cali­for­nia, and New Jer­sey—have passed res­ol­u­tions, backed by a polit­ic­al ac­tion com­mit­tee born out of the Oc­cupy Wall Street move­ment, that call for a con­ven­tion to over­turn the Su­preme Court’s Cit­izens United de­cision, which loosened cam­paign spend­ing rules.

It’s un­clear how much trac­tion Ab­bott’s plan could have. Re­spond­ing to Ru­bio’s call for a con­ven­tion, USA Today’s ed­it­or­i­al board said the idea was “an in­vit­a­tion to con­sti­tu­tion­al may­hem” that “could fur­ther pois­on our polit­ics and hobble Amer­ic­an lead­ers at mo­ments of crisis.”

And no less a con­ser­vat­ive than Su­preme Court Justice Ant­on­in Scalia has said he “cer­tainly would not want a con­sti­tu­tion­al con­ven­tion.”

“Who knows what would come out of it?” he ad­ded.

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