State governments have a powerful—but often overlooked—weapon against the federal government’s overreach. With it, the states could have conceivably blocked passage of the Obama Administration’s healthcare law. That power is found in Article V of the U.S. Constitution, and enables states to seek constitutional amendments.
James Madison once observed that the states could have used their Article V power to overturn the Alien and Sedition Acts. Later, in his 1830 “Letter on Nullification,” Madison urged states to use their Article V power to protect their sovereignty against federal overreach rather than employing the futile gesture of nullification.
As Madison suggested, the ability of states to constrain an overreaching federal government would be vastly increased if they used their amendment power under Article V. Indeed, the mere existence of an organized approach to Article V among the states would substantially influence congressional behavior without a convention ever being convened—whether or not one believes that an Article V convention can be limited to specific amendment ideas.
Just imagine if the 28 states currently challenging the constitutionality of the Patient Protection and Affordable Care Act had not only followed Madison’s advice, but also formed an interstate compact—a treaty-like agreement—requiring them to use their Article V powers to protect healthcare freedom. Just the mere presence of a compact coordinating the introduction and approval of identical Article V applications in 28 state legislatures (only six short of the 34 state threshold needed to trigger the call for an Article V convention), may have been enough to dissuade Congress from passing PPACA.
It is not too late for states to organize in this fashion. Despite a favorable oral argument, no one can guarantee that the Supreme Court will enforce our Constitution’s limitations on federal power and strike down the federal health care law. To hedge their bets, prudent constitutionalists must encourage states to regularize and institutionalize the use of their Article V powers to check and balance Washington through interstate compacts.
Goldwater Institute: Federalism DIY
Goldwater Institute: Article V
Goldwater Institute: Interstate Compact Model Legislation