Federalism

What Happens If 34 States Submit Article V Applications and No One Is Counting?

Article V of the U.S. Constitution establishes a procedure for states to propose constitutional amendments in much the same way that Congress does. Our Founding Fathers included this mechanism to maintain the originally-intended balance of power between the federal and state governments. ALEC has long championed the Article V process – recently updating a Handbook on the topic and adopting model policy supporting various Article V initiatives.

For years, many states have adopted resolutions applying to Congress for an amendments convention pursuant to Article V to advance a variety of proposed amendments that span the political spectrum. One of the initiatives for which ALEC adopted model policy needs the submission of just six more state applications in order to reach the 34-state (2/3) threshold that compels Congress to convene a convention of the states. The high level of activity on Article V applications combined with the gravity of convening a convention for proposing amendments to the U.S. Constitution demands that applications be carefully archived and meticulously counted and aggregated.

The reality of how Article V applications are actually processed is quite the opposite. There is no official count of how many applications exist certified by any federal government entity. The National Archives and Records Administration (NARA), the entity that would be expected to compile the applications, has no authority to archive them because they are considered Congressional records. The receipt of applications from 34 states for the calling of a convention of states is Congress’s sole trigger to call a convention for proposing amendments. Therefore, the process requires accurate and transparent recordkeeping.

Congressman Luke Messer (IN) has introduced a bill that calls on the Archivist of the United States to separate all the applications and rescissions from all other Congressional records housed at the Archives and transmit them to Congress. Additionally, the Archivist would be obligated to organize copies of applications and rescissions and submit a report to Congress detailing the extent of suspected missing applications or rescissions not found in the compilations. It would be incumbent on Congress to post the applications and rescissions on a publicly accessible website to ensure maximum transparency. ALEC has adopted model policy that supports this concept as a way to help ensure that the Article V process is transparent and accurate.


In Depth: Federalism

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