B.2. Challenged Review

Any government statute, executive order, agency rule, or court ruling—by Congress, the Executive, the Judiciary, or a federal agency—that directly affects the Rights of Persons or the Powers of the States may be challenged by a Citizen Review Petition.

At least three percent (3%) of eligible voters must sign the petition within one hundred eighty (180) days of the action taking effect, and the petition must be submitted to the Speaker of the House. If those conditions are met, the action shall be suspended if injunctive relief is requested and necessary to prevent immediate or irreversible harm. The Speaker’s office must maintain means for citizens to submit these petitions publicly. That mechanism is subject to the will of the House of Representatives, but it cannot impose a burden on the petitioners. Otherwise, the action may proceed but must be reversed if rejected by the People in the ensuing referendum.

The Supreme Court overturned Roe v. Wade (1973)[1] in their ruling on Dobbs v. Jackson Women’s Health Organization (2022).[2] There can be debate on whether that was rightly or wrongly decided. That’s not my purpose in using it as an example. What isn’t open to debate, but is a recorded fact, is that a majority of Americans disagreed with the decision.[3]

The problem, under the Constitution of 1789, is that when there is a widespread public opinion against a ruling, law, or government action, there’s not much recourse for the public to exercise its sovereignty and reject the action. If a person can show real harm done (past tense!) to themselves, they might be able to sue (if sovereign immunity or standing don’t get in the way), but only after the harm is done. If they can meet the high standard of proving that irreparable harm is likely to be done, they can request an injunction. Short of convincing Congress to enact laws (really hard) or ratify amendments to the Constitution (almost impossible), there aren’t any other means of recourse available to the citizens. And it’s the citizens who are supposed to be the sovereign! Remember “We the People”?

The process of challenged review gives the sovereign body of the citizens the ability to speak out against such actions. It still isn’t easy. It shouldn’t be. We have courts, Congress, and the administrative state for a reason. James Madison and others fretted over the tyranny of the majority for a reason. But if there is enough consensus, the citizens can push back under this clause.

Whenever there is an action with enough opposition, if three percent of the citizens can act to sign a petition within 180 days and file it with the Speaker of the House, they can request injunctive relief, and they can force a referendum on the overall matter itself. They can also, through the same mechanism, trigger an automatic request for an injunction via the courts, if they ask for it. The Charter puts a duty on the House of Representatives to allow the submission of that petition to be public and accessible.

Returning to our example, in the wake of the Dobbs decision, it’s almost certain the three percent threshold would have been met and a petition would have been filed. I can’t jump into an alternate timeline and say that definitively, but based on public outcry and polling, that is more than merely likely. On the other hand, the Affordable Care Act was unpopular when President Obama signed it into law. But it probably wouldn’t have been unpopular enough to gain the support in a petition required to trigger a challenged review.

When a challenged review is triggered, the originating authority must provide a formal written justification in clear and accessible language. This justification must be written at a level understandable by the majority of the citizens. It must explain the reason for the measure and its intended effects. This justification must be easily accessible to all Citizens. The originating authority must make it available at least ninety (90) days before the next national election. If the timing of the challenge makes it impossible to provide that justification in time, the review will be decided in the following year’s national election, instead. When this extension is required, the originating authority must publish its justification within thirty (30) days of initiation of the challenge. If it fails to do so, the action in question is nullified. Under those circumstances, all laws revert to their previous state.

This is pretty straightforward. The courts, Congress, the EPA, whoever…. They have to provide a written justification for what they have done. It has to be in plain language. This should be something that, frankly, can be accomplished in a day or two. Surely, there are policy papers, legal opinions, Congressional transcripts, et cetera to use in preparing that defense. All that remains is to make sure the general public can understand them. This justification has to be published at least ninety days before the referendum. If the math just doesn’t work to make that possible, then the referendum can be deferred to the following year. That deferral doesn’t take the pressure off the justifying institution, though. They have only thirty days from the challenge's triggering to publish their defense. If they fail to do that, the referendum becomes moot, because their law, decision, rule, or other action is immediately and automatically overturned.

The referendum shall be binding. If three-fifths (⅗) of Citizens voting reject the action, it must be reversed in full within ninety (90) days unless reversal is impossible, in which case a public remedy must be enacted by law.

This concludes the clause, codifying the will of the voters as binding law. It also establishes the same three-fifths standard for citizen referenda that appears elsewhere in the Charter. If a complete reversal isn’t possible for some reason, Congress has a duty to legislate a remedy.

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[1] Roe v. Wade, 410 U.S. 113 (1973).

[2] Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022).

[3] Repeated polling by Pew, Gallup, CNN, CBS, and others showed widespread majorities who opposed the ruling.