CONVENTIONING WISDOM

Texas Gov. Greg Abbott has indignantly demanded the call for a "Convention of States" to amend the US Constitution under Article V.  Keep in mind that Abbott was the legally-trained Texas Attorney General before he became Governor, so one might properly conclude that he has already thought through all the ramifications of his propositions.  Further, the reader might be tempted to dismiss the zealous proponents of such stuff as half-wit Trailer-Trash yayhoos, but I dare not possibly suggest such a conclusion! 

Nevertheless, Abbott has proposed several provisions for such a Convention.  Here they are, according to "The Daily Beast," with my reactions to his propositions: 

1.  Prohibit Congress from regulating activity that occurs wholly within one State.

Might this proposition automatically modify or restrict the power of Congress to regulate interstate commerce and "navigable" waters, even if the focused event occurs entirely within Texas?  What do the words "regulate," "activity," "wholly" or "within" mean?  Would Congress be able to regulate the generation of pollutants entirely in one state that spill into or blow into another state? 

2.  Require Congress to balance its budget. 

I used to support the Balanced-Budget Amendment, then I got to thinking about how the Constitution is usually enforced, by filing litigation in COURT!  Constitutional provisions are NOT self-enforcing, so it's always been up to the FEDERAL courts to enforce them.  So, if Congress fails to cobble together a balanced budget," that certainly seems to be a constitutional violation to be created by Abbott's proposition.  Would Congress be under some sort of time limit to generate that "balanced budget," or could it proceed on "continuing resolutions" as it now does?  Could that mean the Congress would be obligated to levy high enough taxes to support all the stupid pseudo-wars they are too spineless to declare?  Who might be able to file a FEDERAL court action seeking a court order COMPELLING the Congress to obey the law?  Would a federal judge have to first make a finding that the budget, in fact, was not "balanced" before proceeding?  Might a "balanced budget" require "balanced" spending and taxing?  The "budget" does not really control federal spending now, and supposedly there is already a federal statute in effect requiring a "balanced budget"!  Could the federal courts order the Congress to levy more taxes?  Would a President be able to keep the costs of a big war "off-budget," as George W. Bush did with the Iraq War?  Could federal judges generate a "balanced budget" if the Congress failed to do so?  (I don't think that would be a valid function of the judiciary, speaking of "activist judges"!)  Could the courts decide what should be taxed?  Neither Abbott nor any other "Convention" advocate has ever provided any answers to all these questions. 

3.  Prohibit administrative agencies—and the unelected bureaucrats that staff them—from creating federal law.

What does the word "creating" mean?  Would federal agencies be prohibited from issuing regulations covering the things they are usually expected to regulate?  Would the Congress be, therefore, burdened to write up more detailed statutes to make up for the regs the "unelected bureaucrats" couldn't legally generate anymore?  When would that ever get done? If Congress predictably overlooked something, would the federal government then be prohibited from addressing it? 

4.  Prohibit administrative agencies—and the unelected bureaucrats that staff them—from preempting state law.

What does "preempting" mean?  Would this revoke the "Supremacy" clause in Article VI that recites that the Constitution, all congressional acts and ratified treaties are parts of the "supreme Law of the Land"?  So if state legislatures adopted laws that were contrary to federal law about a matter clearly within the purview of Congress (like immigration), would all the different state laws prevail? 

5.  Allow a two-thirds majority of the States to override a U.S. Supreme Court decision. 

I understand the intention here is to cut down the Judicial Branch as a separate, co-equal branch to the Executive Branch and the Legislative Branch.  Same with Proposition 6.  Proposition 9 would supposedly allow 2/3 of the state legislatures to "override" a congressional act or executive regulation.  Would 2/3 of the state legislatures be able to override a federal outcome that clearly addressed a federal issue, like declaring war?  Could 2/3 of the state legislatures declare war, even if 1/3 objected?  Could 2/3 of the state legislatures revoke a declaration of war, even if 1/3 supported it?  It appears the intent here is to subject ALL of the congressional powers in Article I and all of the Supreme Court decisions under Article III to a 2/3 state legislative veto.  Since the Supreme Court has outlawed school racial segregation, could 2/3 of the state legislatures reintroduce it?  If the Supreme Court outlawed capital punishment, could 2/3 of the states revoke that and maybe even compel it in states that had also outlawed it?  Could 2/3 of the states completely outlaw capital punishment for the entire country as presently validated by the Supreme Court?

6.  Require a seven-justice super-majority vote for U.S. Supreme Court decisions that invalidate a democratically enacted law.

What, exactly, is the scope of a "democratically enacted law"?  Would it require 7 of 9 Justices to outlaw an obviously unconstitutional law enacted by a state, like compelling daily prayers to Allah in the public schools? 

7.  Restore the balance of power between the federal and state governments by limiting the former to the powers expressly delegated to it in the Constitution.

I was unaware the "balance of power" was out of whack!  The 10th Amendment already prohibits "powers not delegated" to the federal government.  Why is it necessary to "reinvent the wheel"?  Maybe we just need to develop a "litmus" pledge for potential judicial candidates to sign!

8.  Give state officials the power to sue in federal court when federal officials overstep their bounds.

How do we define "overstep their bounds"?  Or, do we just empower the individual states to sue the government as often as desired?  Does that require a state legislature to direct the state attorney general to sue the government?  Does a state's governor have any say-so or veto?  Who pays the costs of the litigation?  The loser?  If a state loses, should its taxpayers have to pay the federal government's legal fees, or vice-versa?  

9.  Allow a two-thirds majority of the States to override a federal law or regulation. 

What in the world does "override" mean?  Would the offending regulation or law have to be specifically identified in a legislative act duly adopted and signed by the governor?  To what extent of detail would an override need to have?

Other points are worth making: the amending provisions of Article V do not limit the subject matter of any called Constitutional Convention.  So, while it may be Abbott's intention that only his proposals be heard, once the Convention is called to order, there is no way to block proposed amendments from the floor, such that the various rights to freedom of speech, freedom of religion, the right to remain silent, the prohibitions against "cruel and unusual punishment," the right to a lawyer, the right to subpoena witnesses, the right to be free from unreasonable" searches, all of those things COULD be potentially revoked or restricted as desired by a simple majority vote at the Convention!  Presumably all votes would be by simple majority once the Convention was called to order.  There is also no provision in Article V for how a Constitutional Convention could proceed, who would preside, where or when it could be held, how long it would last, who could be a delegate, etc.  Presumably the state legislatures would be the sole determinants of who got elected as delegates.  There is also no proposed allocation of representation!  Presumably the allotment of delegates would be according to population, but that is not specifically provided.  Must the states be equally represented as they were at the original Constitutional Convention?  If so, then Vermont (the home of Sen. Bernie Sanders) would have the same Convention voting strength as Texas!  Women and minorities could arguably be limited or excluded from a delegation if any state legislature so decided.  It could conceivably wind up being entirely composed of white male property-owners, just like the first Constitutional Convention! 

I am also not sure if Article V requires a proposed-amendment ratification by 3/4 of ALL states or just 3/4 of the ones in attendance at the Convention.  So, if only 34 states (2/3) show up for the Convention, could just 26 (3/4 of 34; barely half of all states) accomplish the ratification, or would it still require a full 38 state legislatures to ratify?

FINALLY, I am absolutely fascinated with the pure political angles of these propositions!  Suppose a coalition of few big states, like Texas, NY, California, Fla., Ohio, etc. got together and passed some sort of law in Congress (where they have dominant representative power) favoring heavily populated states, but a coalition of at least 34 small and/or sparsely populated states like Vermont, Rhode Island, Nevada, etc. got together and had their legislatures revoke that pro-big-state federal law!  That is a distinct possibility under Abbott's propositions!  By empowering only state legislatures, these propositions do not reflect any sort of numerical population balance or influence!

Maybe it won't make any difference if these propositions are adopted.  Getting 34 states to agree on anything may be impossible!

De Debbil is really in de details!  Good luck with all that!