To rectify the concerns regarding the constitutionality of the jurisprudence handed down in the field while simultaneously protecting the beneficial commercial nature of these DCC decisions, Members of Congress simply should institute a legislative version of the DCC as part of any statute they consider that deals with Commerce Clause interpretation. By implementing a statutory version of the DCC, Congress would help to legitimize the Supreme Court's jurisprudence in this field and acknowledge the importance of the DCC in guaranteeing commercial harmony throughout the union.

In effect, Congress would be saying that the country's internal lanes of trade should be free and unfettered of protectionist or discriminatory regulations. Professor DeBow, who has developed such a legislative solution to accomplish this objective, concludes that:

Congress should legislate a version of the
DCC in order to guard against interstate
trade wars, while simultaneously eliminat-
ing the uncertainty caused by some
aspects of current DCC doctrine.... A cod-
ification of the DCC should require simply
that state laws not discriminate against
out-of-state businesses. Congress clearly
has the authority to enact such language
under the current understanding of its
commerce power, and it seems likely that
Congress would have the authority to do
so even under the original understanding
of the Commerce Clause or, perhaps, the
Privileges and Immunities Clause.31

31. Ibid., pp. 78-79.

January 27, 1999

In other words, a legislative version of the DCC would act, in effect, as a domestic free trade statute that clarifies and strengthens the intentions behind the Commerce Clause.

Strategy #4: Congress should enact antidelegation legislation that ends the unconstitutional transfer of lawmaking authority from the legislative to the executive branch.

Congress should curtail and strictly limit the powers of cabinet departments and independent regulatory agencies to preempt state and local governments. Executive branch cabinet agencies and independent regulatory agencies have amassed a disturbing amount of power. So long as federal agencies and officials enjoy the broad discretionary powers that are reserved under the Constitution to the elected lawmakers of the legislative branch, they will continue to ignore or flout federalism statutes and protections.

This should not be surprising; regulators exist to regulate. They cannot be expected either to surrender power voluntarily or to stop imposing expensive, preemptive rules because it would not be in their best interest to do so. Nor should anyone mistake who is to blame for such activity: If Congress had not delegated broad discretionary powers to these agencies in the first place, and if it would start to take back the authority that it delegated unconstitutionally in the past, then the power of federal regulatory agencies and administrative offices would be strictly curtailed and diminished.

Unfortunately, from the time of the New Deal, Congress has justified such delegation as allowing for more scientific lawmaking by administrative experts. Granting regulators rulemaking authority was seen as a way to conserve valuable time for Congress to debate the heart of the issues, leaving executive branch agencies to fill in the fine print. Although the Supreme Court struck down earlier efforts by Congress to delegate authority to these agencies, the judicial branch eventually joined a

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would represent a significant step back toward accountable, limited government, ending what Representative Hayworth-referring specifically to the practice of delegation--calls "regulation without representation."37

LONG-TERM FEDERALISM
REFORM STRATEGIES

Certain federalism reforms will require more ume, consideration, and debate than those listed above; they should be considered as long-term agenda items. The three reforms that follow should be discussed in Congress, even though it is unrealistic to expect action on these items in the current session.

Strategy #5: Congress should give the states the ability to propose amendments to the Constitution on their own, without having to call for a constitutional convention.

This reform would rectify the imbalance between the states and the federal government regarding how amendments to the Constitution are proposed.

Article V of the Constitution allows Members of

Congress to propose amendments to the Constitution in much the same way they introduce bills. But under Article V, the states can introduce amendments to the Constitution only by convening a formal constitutional convention. Perhaps the Founders thought this would be easy enough for the states to do; but over time, the states have come to view the convening of a constitutional convention as a radical step that might open the door to more harm than good. Therefore, states appear reluctant and unable to muster the support needed to call such a convention. Thus, the states rely largely on Congress to introduce

constitutional amendments.

This constitutional imbalance could be easily remedied if the states simply were given the ability

January 27, 1999

to propose amendments to the Constitution without having to call a formal convention. The states could, by a two-thirds majority vote, propose amendments to the Constitution. Congress then would be able to accept or reject these amendments by a similar two-thirds vote.

To change the Constitution in this manner and place the states on equal footing with the federal government, Congress would have to propose, of course, a new amendment to the Constitution. The states should work with Members of Congress to devise such a mechanism and ensure that the states have this federalism protection in the future.

Strategy #6: Congress should allow the states to hold their representatives more accountable by giving them the right to convene their congressional delegations when they feel egregious federal mandates and policies are being imposed.

This type of reform would rectify the accountability problem created by the adoption of the Seventeenth Amendmen: in 1913, which stripped the states of their power to elect Senators directly to Congress.

After the adoption of the Seventeenth Amendment, Americans received the right to elect the Senators of their state through popular vote. Although this move can be considered an important victory for direct democracy, it also can be seen as a setback of sorts for the citizens of individual states. Prior to the adoption of the Seventeenth Amendment, Senators had been appointed by state legislatures, as mandated in Article 1, Section 3, of the Constitution.

In certain ways, this system actually held Senators more accountable to the people of the individual states because Senators were appointed by members of the state legislatures, which gave elected members of these legislatures a more controlling hand or voice in the making of national policy. Essentially, the Founders opted for

Although some political scientists still question the wisdom of the Seventeenth Amendment, most Americans have become accustomed to electing their political representatives directly, and they are unlikely to want to surrender this right. Optimally, however, a system or mechanism could be created that preserves the right of the citizens to elect their federal officials directly but allows them to demand more accountability of these federal officers to the interests of their states and the state legislatures at the same time.

One such mechanism might take the form of an annual or semi-annual meeting of state and federal representatives within the state capitals to discuss federal policies and programs that might affect the states. A legislature could request that the state's entire congressional delegation convene for such a meeting, or it could request that just a few members represent their state delegation of U.S. Senators and Representatives. State legislators then would be able to confront the federal

January 27, 1999

representatives of their state and ask them to justify programs or regulations that have a potential impact on their state. Consequently, state officials could communicate their concerns about various federal initiatives before they have been acted on or implemented.

Alternately, or in addition to this plan, state legislatures simply could demand the right to convene their federal representatives on an ad hoc basis whenever they felt particularly egregious federal mandates or policies were being imposed on them that demand immediate attention. Either way, such mechanisms should be implemented to give the states the ability to act as a substantive check on national power, to regain a voice in federal matters, and to hold federal representatives accountable to the interests of their state.

Strategy #7: Congress should give the states a supermajority veto power over federal legislation or regulation that preempts their authority, or that requires them to administer federal programs or rules.

If the reforms mentioned above were implemented but federal officials still found it easy to put in place rules and regulations that run contrary to the true spirit and intent of the Constitution and violate the sovereignty of the states and the people, then a more radical reform option could come into consideration that would ensure the Founders' original balance of powers was restored and protected.

Many state and local groups and representatives advocate the adoption of a "states' rights veto" power that would force Congress to reconsider particularly egregious or potentially

unconstitutional acts. This states' rights veto power would require that a supermajority (that is, two-thirds) of the states pass resolutions calling for the repeal of a specific federal statute or regulation that they collectively feel has been imposed unjustly on them. The states would have three to five years to consider passage of the veto.

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More important, however, is that, even if such a mechanism were adopted, it must have certain limits to ensure that some important powers and responsibilities guaranteed to the federal government by the Constitution are not sacrificed. For example, the states should not receive the right to use such a veto power to interfere with the federal government's foreign policy or national security decisions. The Framers of the Constitution unambiguously entrust such responsibilities to the federal government because of the importance of having a unified voice and policy in the field of global affairs and diplomacy.

This is also the case with regard to treatymaking with foreign countries in general. The Constitution prohibits the states from making treaties with foreign countries, for fear of a balkanization within the American Republic. Not only does this mean the federal government has the exclusive right to negotiate with foreign governments on behalf of all Americans in foreign policy matters, but it means also that the federal government is the only entity that has the constitutional authority to enter into trade agreements and commercial treaties with foreign countries. Therefore, if a states' rights veto

mechanism were put into place, it would be vital that these sorts of exceptions-which have solid constitutional and practical justifications-be included in the measure so that the states could not overrule federal officials on sensitive matters.

OTHER REFORMS TO HELP
TO RESTORE LIMITED,
CONSTITUTIONAL GOVERNMENT

The strategies above are only a few of the reforms that could be pursued in upcoming sessions of Congress to restore the proper balance of powers between the states and the federal government. Other important reforms could be

January 27, 1999

implemented to ensure that constitutional government is protected and that America's original federalist system is reinvigorated and honored. For example, Congress should:

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Devise a package of devolution options to begin returning programs and powers to the states that never belonged to the federal government in the first place, such as educational, infrastructural, and most environmental controls programs.

Impose term limits on federal officeholders to encourage greater turnover, which, in turn, would present opportunities for fresh state and local officials to represent their interests in Congress.

Enact a simpler, fairer tax system, such as a flat tax, to impose firm limits on the federal government's ability to usurp the resources of the states and the people.

Pass a balanced budget amendment to rein in federal spending and restrict the ability of the federal government to create expensive new programs and entitlements that encroach on traditional state and local responsibilities.

Enact regulatory reform that requires regulatory decisions to be based on such commonsense principles as sound science and costbenefit analyses. Regulators should be held accountable, for example, through strong judicial review mechanisms and annual reports to the public, as part of the federal budget process, on the rules they issue; how much they will spend to issue those rules; and their expected benefits and costs.

CONCLUSION

As America approaches the 21st century and gets closer to celebrating its 225th year of