Repealing legislation

The Founders did “better than they knew” when writing the U.S. Constitution. They wisely separated the legislative, executive, and judicial powers. They also wisely made the legislature bicameral with an executive veto to make new laws difficult to enact. However, now that many, many laws have been passed, we can see that the difficulty in enacting legislation makes it difficult to repeal legislation, too.

A case in point is the Affordable Care Act (ACA), officially the Patient Protection and Affordable Care Act, commonly called Obamacare. This was passed by a thin margin in March 2010 and immediately became an issue in the 2010 Congressional elections. In November the electorate spoke and many Representatives lost their seats. In January 2011 the newly-elected House of Representatives voted to repeal the ACA. However, the Senate did not agree and the President would have vetoed it anyway.

But the fact remains that after the electorate changed the make-up of Congress, the ACA would not have been enacted. In short, the electorate was denied the opportunity to repeal a law once enacted. Why? Because a repeal of a law is treated as a law and laws are difficult to enact. One result of this is that laws accumulate on the books and are modified but rarely repealed.

The solution to this is to make repeal of a law less difficult than enacting a law in the first place. This is consistent with making new laws difficult to enact, so the status quo is privileged over change without a consensus for change. However, a law enacted years ago may have led to many things that would be impossible to undo so there should be a limit to how long a law may be repealed without passing a new law.

A simple amendment would be to allow either chamber of Congress to repeal a law by majority vote within two years of its enactment. That would allow one Congressional election cycle for the electorate to speak. New laws would effectively have a two-year probationary period, something that is often done in other situations such as new employment.