So over on Volokh Conspiracy Randy Barnett is pushing a suggestion he made in an article in the wall street journal that by acting in concert 2/3 of the state legislatures should have the power to repeal federal legislation or regulations. Since I don’t have a strong position on federal power one way or the other I usually don’t comment on reforms designed to devolve federal power but this suggestion is so deeply flawed on both practical and theoretical grounds I couldn’t let it go without a rebuttal.

Before we begin just consider the fact that creating a second senate consisting of hundreds of senators from each state with the power to repeal legislation with a 2/3 majority of the states would be essentially equivalent to this proposal. If you don’t think that a second senate with this limited power would be beneficial what could possibly be beneficial about this proposal? Now let’s consider the particulars.

First the purely practical aspect: what does it mean to repeal a piece of legislation? Does this mean that the states can repeal any passage/clause/section in federal legislation or does it only grant them an all or nothing choice to repeal an entire bill. I presume the suggestion is the later (so a repeal acts like a late presidential veto) since otherwise the state legislatures would effectively be a second congress, e.g., if congress strikes a balance between some kind of invasive search and judicial protections the states would be essentially writing their own legislation if they could simply strike out half that balance. Since this is the reasonable interpretation and the one closest to the proposed text I’ll assume that only entire bills or regulations could be repealed.

But this now creates massive problems. What if congress passes a law that changes the classification of Marijuana and psychedelics from schedule I to schedule II allowing it to be used medicinally then later congress decides that since it’s only `hard’ drugs in schedule I to increase the penalties for trafficking in a schedule I substance. If the states later repeal the bill reclassifying the psychedelics does trafficking these substances now come with a greater criminal penalty than congress (or a majority of the states) ever intended? This is just the tip of the iceberg.

What if congress decides to change the nomenclature in the same bill in which they legalize the medical use of Marijuana so instead of schedules I-V it’s now class A-E. Shortly afterward congress passes another bill revamping all the criminal penalties and whose text indicates that it repeals all previous criminal penalties for trafficking in drugs in favor of a new system of penalties phrased in terms of classes A-E. If the states repeal the bill legalizing medical use of Marijuana does this mean that all criminal penalties for drug trafficking are eliminated? After all the only non-repealed trafficking laws reference class A-E substances which no longer exist since the law creating them was repealed. As nice as result as that might be in this case the problems are starting to mount.

These issues were bad enough when we imagined the conflicts occurred by accident but what happens when congress wants to prevent the states from repealing their bills? They could simply pass popular bills right after the legislation at risk of repeal in such a way that should the states repeal the controversial bill the popular legislation would be rendered inoperative. As a silly example one might pass an agriculture funding bill which reads “No monies shall be distributed in excess of the number of words in section Y of the law multiplied by 10 million dollars,” where section Y was introduced by the controversial bill. Thus were the controversial bill to be repealed farm subsidies would be immediately halted. Should they wish to be less obviously contrived congress could simply package up the various bills they plan to pass in such a way that 2/3 of the states wouldn’t be able to agree on exactly what to repeal.

Finally, since the house and senate set their own rules it’s quite possible that “deem and pass” is perfectly constitutional. If so congress could break up the laws into an arbitrary collection of bills to undermine any potential state coalition. Alternatively congress could simply rewrite the rules preventing them from packing absolutely everything into one giant bill to evade the veto in that manner.

Now that we hit upon some of the practical problems let’s move on to the theoretical failures. The first and most puzzling of which is why would such a legislative veto be desirable now that we have direct election of senators? For a bill to pass congress it must have already received support from a majority of the elected senators so why should we let state legislatures which are often ignored by voters override the choices of the senators they elected? Despite the implications by Barnett that somehow state legislatures have more wisdom for the most part state legislators are much less likely to be knowledgeable about policy than our federal representatives. Indeed, it should strike one as weird that 2/3 of state legislators might vote to repeal what a majority of senators supported when they represent the same constituents.

This consideration exposes the true effect of such a measure and the motivation for considering it now. State legislators have national party affiliations and feel obligations to support that parties national views. Thus even though you may have voted for your republican state assemblyman because he has reasonable moderate views on taxes, school funding and etc.. he will likely feel pressure to vote for repeal of moderate democratic initiatives at the national level. In conservative states the democratic candidates for state legislature tend to be fairly conservative and vice versa but would still feel pressure from the national party to tow the national party line. In short letting state legislatures repeal federal laws would force voters to compromise between the candidates who have the best local policies and those that are most likely to be loyal to the voter’s favored national policies yielding less optimal results. It’s only because currently states are more heavily republican than the federal government that this suggestion is gaining any traction but if the states started repealing laws then the parties elected at a state level would start to follow the federal trends.

Lastly allowing states to repeal regulations as well as legislation totally undermines the benefits of regulation. The advantage of regulation, and the reason we don’t do everything by legislation, is that regulations can be issued by appointees under less direct political pressure. For instance regulations about safe levels of chemicals in drinking water can be issued by regulators who are some distance removed from lobbyists. Allowing state legislatures to repeal regulations puts this advantage at risk.

I was just reading this post over at Lawfare debating whether the use of targeted killing is justified on analagous grounds to the use of deadly force by the police in resolving a hostage situation. Heller, in arguing that it is not, suggests that law enforcement is justified in using lethal force without trial only when the threat is particularly imminent. While disagreeing with Heller’s conclusion Wittes (the author of the post) seems to agree that imminence is the key issue.

Certainly as far as US constitutional jurisprudence goes this isn’t the rule. In TENNESSEE v. GARNER, 471 U.S. 1 (1985) the court held

It is not, however, unconstitutional on its face. Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.

Notice the lack of any mention of imminence. Of course both common sense (and perhaps even other precedents) suggest that if other non-lethal means could be used to eliminate the threat then it would be unjustified to use lethal force. However, apriori consideration shows that reasonable outcomes require that it it be the absence of reasonable non-lethal means to avert a likely harm, not the imminence of the harm, that must justify lethal force against a dangerous individual.

The easiest counterexample is that of a terrorist on the verge of dispersing a surely lethal biological agent with a several week incubation period. Even though the deaths wouldn’t occur for several weeks surely it is justifiable to use deadly force to stop the terrorist from dispersing the germs. Thus it can’t be the imminance of the fatalities that matter but maybe it’s the imminance of the harm where the harm is injection with the biological agent. But surely it would make no difference if instead the terrorist was about trigger a remote device in an unknown, undiscoverable location in a major city that would disperse the biological agent after a week long countdown.

So maybe then it’s the imminance of the murderous act that is relevant regardless of when the consequences come to pass. Thus deadly force is justified in the above examples because the subject is on the verge of an action that seriously threatens the lives of others. This is an attractive view but again we can show this can’t be the right rule by considering a hypothetical.

This time imagine the terrorist has stolen a deadly biological weapon from a military lab but the spores are contained in a tamper resistant box that will take about 5 minutes to be opened. The terrorist is making no attempt to open the box but is about to steal a tank which the police know he plans to drive into a nearby city where he will release the biological agent. Surely if the police know that once inside the protection of the tank they will be powerless to stop the terrorist lethal force is justified in preventing him from entering the tank. I could extend the example further but the point seems clear, the law must deem lethal force justifiable when it’s the last and only chance to prevent a highly probable future murder even if that murder is distant in time and space from the use of the force. Our normal intuitions about the need for an imminent threat are a consequence of the fact that in most situations where the harm is not imminent the use of lethal force can be delayed without great risk.

Still one might distinguish the tank stealing terrorist case from the targeted killing situation by appeal to the fact that the tank stealing terrorist is currently in the midst of a concrete attempt to take lives. However, we allow law enforcement to kill hostage takers who are merely threatening to kill others but not currently executing a lethal plan and surely having a leadership position in a genuine terrorist organization puts you in the position of threatening to kill others, after all that’s your publicly stated goal. Moreover, in such a situation it is impossible to know when the terrorist leader might order an attack so one rarely will have reason to believe the killing may be delayed without incurring substantially more risk. Indeed, the situation seems very similar to a hostage taker, who may or may not be wearing a real bomb, visible through the window to the police sniper where the mere chance that the hostage taker might set in motion a deadly chain of events is enough to justify lethal force.

This suggests to me that the relevant distinction with respect to targeted killings is between those killings undertaken for the purposes of direct self-defense, i.e., to stop a terrorist leader from ordering/organizing a deadly attack, and those undertaken for strategic reasons, e.g., killing a terrorist leader with a purely PR role to instill fear in potential allies of the group. I’m not sure when either should be allowed but this seems to be a much more reasonable place to draw a line than imminence.

On a different point I suspect that it would actually be extremely easy for a suspect terrorist to remove themselves from the US government’s list of targets. Far from being flung in a dark hole in the ground if such an individual presented themselves at a US consulate I’m sure the CIA would offer them piles of cash to reveal information about their contacts.