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I mentioned last weekend that Tom Coburn and Rand Paul have introduced a bill that would ban the use of the Commerce Clause of the Constitution to protect workers' rights.  While current laws would remain on the books, future laws could be killed by a simple point of order. Had this bill already been in place, child labor would still be legal and there would be no minimum wage, among other horrors.  CroneWit pointed out rightly in a comment that this bill would effectively write tentherism into United States Code.  And yet, Coburn and Paul managed to get 34 of their Republican colleagues to sign on to this monstrosity.  By my math, that's three-fourths of the Republican Senate caucus.

Well, the full text of this bill came out late yesterday. Read it  either at the GPO or on Thomas.  While Coburn made a point of harping on the fact that his bill would effectively give the finger to workers in a new way, there's an even more odious provision in this bill--one that may have the effect of repealing the Necessary and Proper Clause.  To wit:

(c) Enumerated Spending and Necessary and Proper Clauses- Invoking a clause included in the enumerated spending clause under clause 1 of section 8 of article I of the Constitution of the United States, such as the common defense clause and the general welfare clause, or the necessary and proper clause under clause 18 of section 8 of article I of the Constitution of the United States in a statement of constitutionality is not sufficient to satisfy the requirement of subsection (a).
If I'm reading this right, any number of important bills would have never been enacted had this been in force.  Off the top of my head, food safety regulations, workplace safety laws and regulations, securities laws, the Do Not Call list, Medicare and Medicaid would have likely never been permissible had this bill already been the law.  Practically all of these were enacted by means of the Necessary and Proper Clause.  I have to wonder--does Coburn want a situation where laws that seem like common sense to average folks can only be enacted by constitutional amendment?  Those of you who are better versed in constitutional matters than I am can feel free to correct me, but I'm reading this section as an attempt to gut the Necessary and Proper Clause.

Even if it isn't, this bill is odious for another reason.  It represents an attempt to write a completely discredited interpretation of the Constitution into law.  ThinkProgress' Ian Millhiser, who brought this outrageous bill to light, points out that its lead cosponsor, Paul, openly praised Lochner v. New York, a 1905 SCOTUS decision that foreclosed any attempts to regulate employee-worker relations.  It opened the door to three decades of decisions in which any attempts to regulate business were held to be unconstitutional.  That decision is now widely reckoned as being on the same level of infamy as the Dred Scott decision and Plessy v. Ferguson.  And yet, Coburn and Paul would like nothing better than to see such interpretation as the law of the land.

It cannot be stated enough--36 of the 45 Republican Senators (I'm not counting Jeff Chiesa, since we all know he's essentially keeping the seat warm for whoever wins the Democratic primary in New Jersey) have signed on to this monstrosity.  Roll credits:

Kelly Ayotte
John Barrasso
Roy Blunt
John Boozman
Richard Burr
Saxby Chambliss
Dan Coats
Bob Corker
John Cornyn
Mike Crapo
Ted Cruz
Mike Enzi
Deb Fischer
Jeff Flake
Lindsey Graham
Chuck Grassley
Orrin Hatch
Dean Heller
Jim Inhofe
Johnny Isakson
Ron Johnson
Mike Lee
John McCain
Mitch McConnell
Jerry Moran
Jim Risch
Pat Roberts
Marco Rubio
Tim Scott
Jeff Sessions
John Thune
Pat Toomey
David Vitter
Roger Wicker

For those of you keeping score, that's every member of the Republican Senate leadership except Rob Portman--which makes one wonder how hard a Majority Leader McConnell would push this monstrosity.

Over my nine years as a Kossack, I've marveled at how no thanks to the religious right, some of the poorest districts in the country give Republican candidates absolutely ludicrous margins when economically, they have no business voting Republican.  Well, ladies and gentlemen, this bill shows how much they value those voters.  If there were any doubt that the Republican Party has become a far-right party, this bill erases it.

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Comment Preferences

  •  The GOP IS the problem. (3+ / 0-)
    Recommended by:
    hnichols, gustynpip, trumpeter

    If I ran this circus, things would be DIFFERENT!

    by CwV on Wed Aug 07, 2013 at 06:50:01 AM PDT

  •  And right there in the middle of it (6+ / 0-)

    My favorite empty suit, Richard "Mini-Mitch" Burr.  The one thing you can count on from Dick is that he'll blow with the hot wind of the GOP majority.  He has GOT to go.

    I'll believe corporations are people when one comes home from Afghanistan in a body bag.

    by mojo11 on Wed Aug 07, 2013 at 06:57:07 AM PDT

    •  He's up for Reelection in 2016 (7+ / 0-)

      Given how pissed people are at McCrory, if that anger can be sustained, maybe we can throw him out as well.

      •  It'll take more than that (7+ / 0-)

        It'll take a credible challenger with credible funding.  Burr may not be very good at much, but he's an expert fundraiser.  Must come from the same gene that made him a good lawnmower salesman.  Even before Citizens United, he was at the top of the heap in fundraising efficiency, behind only Boner and Cantor among all 535 members of Congress.  Anger at McCrony won't HURT, mind you, since they come up for a vote in the same year, but the NCDP will have to do better than Elaine Marshall as a challenger.  Not that I dislike Marshall, but she was punching above her weight class in that race.  We need a heavyweight who's not afraid of drawing (figurative) blood.

        I'll believe corporations are people when one comes home from Afghanistan in a body bag.

        by mojo11 on Wed Aug 07, 2013 at 07:08:48 AM PDT

        [ Parent ]

        •  Totally agree with you! (3+ / 0-)
          Recommended by:
          randallt, Matt Z, sturunner

          Elaine Marshall is a no go, and the Dems are going to need some serious (read outside) money to defeat him.

          We also need a good challenger.  Any idea who?

          In the time it took Adam Lanza to reload, eleven children escaped. What if...

          by Sixty Something on Wed Aug 07, 2013 at 07:25:48 AM PDT

          [ Parent ]

          •  Brad Miller could be a threat (3+ / 0-)
            Recommended by:
            highacidity, Odysseus, milkbone

            so could Roy Cooper.  Ideally we see one of them taking out Burr and the other taking out McCrony.  And if I were making the call, I'd stack Miller up against Burr and Cooper against McCrony.  I think that gives us the best matchups one-on-one.  Cooper is a forceful personality which will not only be helpful in the campaign, but also in dealing with the NCGA.  He's also not one bit bashful about voicing opinions that run counter to the prevailing sentiment in the legislature.  You won't see him getting bullied by the likes of Tillis, Stam, Berger, Dollar, Moffitt and... Tapioca or whatever his name is.

            Miller has a 24K rating with teachers and environmentalists (LCV gave him a 100%) and he's a combat veteran (National Guard in Afghanistan) which will make him go down easier with the military and vets. (Burr has no military service at all, so if you're a vet who do you trust with your issues more?)  If he hits a challenge within the party, it'll be from those who find him too "centrist", though he's certainly no more centrist than Hagan.

            Both of them are capable fund raisers, and both could get considerable support from significant groups.  Neither of them will outraise Burr outright, but if the funds are managed properly they could give him a run for his money (literally and figuratively).  Burr basically got a free ride in the last campaign, and probably has a significant war chest left over for 2016 (Marshall was pitifully underfunded).  He won't be easy to dethrone, but if the campaign is targeted properly, it can be done.

            If Jim Hunt and Harvey Gantt weren't so old, they might play well too.  Both of them gave Jesse all he could handle (especially Hunt) but I'm not sure they have enough left in the tank.  I'd definitely bring them in to advise though.

            I'll believe corporations are people when one comes home from Afghanistan in a body bag.

            by mojo11 on Wed Aug 07, 2013 at 08:00:06 AM PDT

            [ Parent ]

  •  Let's hope they don't get more support (5+ / 0-)

    They want nothing less than to tear the country apart.

  •  cannot change Constitution by statute (17+ / 0-)

    if a part of a statute is in conflict with Constitution the statute falls -  that has been true since 1803 and Marbury v Madison

    as far as broad use of Commerce Clause, that is established in a whole host of decisions at least as far back as Gibbons v Ogden and strongly reaffirmed with public accommodations portion of '64 Civil Rights Bill in Heart of Atlanta Motel.

    This is posturing to the base.

    "We didn't set out to save the world; we set out to wonder how other people are doing and to reflect on how our actions affect other people's hearts." - Pema Chodron

    by teacherken on Wed Aug 07, 2013 at 07:02:04 AM PDT

    •  Plus Or Minus This Court nt (11+ / 0-)

      We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

      by Gooserock on Wed Aug 07, 2013 at 07:04:11 AM PDT

      [ Parent ]

      •  Exactly. Key is future Supreme Court nominations. (4+ / 0-)
        Recommended by:
        CroneWit, sturunner, sfbob, True North

        As Jesse Jackson said in 2000, the 3 best reasons to vote Democratic instead of third party are the Supreme Court, the Supreme Court, and the Supreme Court.

        "The true strength of our nation comes not from the might of our arms or the scale of our wealth, but from the enduring power of our ideals." - Barack Obama

        by HeyMikey on Wed Aug 07, 2013 at 08:09:32 AM PDT

        [ Parent ]

    •  I thought the same thing (8+ / 0-)

      To my untrained mind they seem to be attempting to nullify the Constitution with a federal statute, very much backwards-world.

      I suppose that's their ultimate goal anyway to make the constitution say whatever they want it to say. So much for all that original intent gobbledygook they love to throw around when things don't go their way.

      •  The Constitution and the Bible are just (9+ / 0-)

        cats-o-nine-tails the right flogs their base with in order to guilt them into voting GOP.  The party's actions, as opposed to their rhetoric, are inconsistent with either.

        Building a better America with activism, cooperation, ingenuity and snacks.

        by judyms9 on Wed Aug 07, 2013 at 07:32:06 AM PDT

        [ Parent ]

        •  Absolutely. (2+ / 0-)
          Recommended by:
          hnichols, CroneWit

          If you pause to think about it, the modern GOP is really just a huge money confidence game. Right-wing economic and religious rhetoric inflames the base, pushing them to the polls - pretty much as useful idiots. But it's only the big donors who are acknowledged in the party's decisive actions. The majority of the base is just there to keep the machine going, but seldom get more than stagecraft or dead-on-arrival posturing like this in return for their support.

          At least Democrats, on occasion, reward their base with policy advances, even if many of us get frustrated with them in between the victories.


          "God is an ever-receding pocket of scientific ignorance" - Neil deGrasse Tyson

          by dzog on Wed Aug 07, 2013 at 08:28:43 AM PDT

          [ Parent ]

    •  If I understand correctly, (1+ / 0-)
      Recommended by:

      This wouldn't 'change the constitution', so much as 'change senate procedure'.  While it would effectively change the constitution, as a technicality, the Senate would just be kind of.. not utilizing their full authority.  And sadly, that's perfectly constitutional - otherwise, our completely non-functional House would be in hot water.

      •  Senate procedure not done by statute (4+ / 0-)

        but by adoption of the rules at the start of a new Congress.  Thus if attempting to do this by statute, outweighed by the provisions that each chamber is the determiner of its own rules

        presuming their next step is to attempt to filibuster any proposed legislation that does not meet this standard even though they lack the votes to impose this standard - how to blow up the filibuster, right?

        As far as attempting to limit the necessary and proper clause, now it seems as if they are attempting to overturn McCulloch v Maryland.  

        So why don't we get them on record that they reject the rulings of the Marshall Court -  I wonder how that will play with the Federalist Society and its adherents, which oh by the way just happen to include both the Chief Justice and Scalia.

        "We didn't set out to save the world; we set out to wonder how other people are doing and to reflect on how our actions affect other people's hearts." - Pema Chodron

        by teacherken on Wed Aug 07, 2013 at 07:29:51 AM PDT

        [ Parent ]

  •  Call it the 'Overturn the Constitution' Bill (2+ / 0-)
    Recommended by:
    Ronald England, sfbob

    and be done with it!

    I'm glad to see teacherken in this thread, and I hope some of our Constitutional experts will chime in.  To my eye, this bill appears to gut the Constitution and take away Congress' ability to make law.

    In order to try to get my head around this, I'm going to post more of the Bill and supply the Constitutional texts that it interprets --

    Sec. 102a. Constitutional authority clause

    `(a) In General- Each Act of Congress, bill, and resolution, or conference report thereon or amendment thereto, shall contain a concise explanation of the specific authority in the Constitution of the United States relied upon as the basis for enacting each portion of the measure.

    `(b) Federal Activities- To the extent that any Act of Congress, bill or resolution, or conference report thereon or amendment thereto, limits or abolishes any Federal activity, spending, or power overall, a statement of constitutionality may cite the 9th Amendment or the 10th Amendment to the Constitution of the United States.

    `(c) Enumerated Spending and Necessary and Proper Clauses- Invoking a clause included in the enumerated spending clause under clause 1 of section 8 of article I of the Constitution of the United States, such as the common defense clause and the general welfare clause, or the necessary and proper clause under clause 18 of section 8 of article I of the Constitution of the United States in a statement of constitutionality is not sufficient to satisfy the requirement of subsection (a).

    `(d) Commerce Clause- Invoking the commerce clause of section 8 of article I of the Constitution of the United States in a statement of constitutionality for any purpose other than the regulation of the buying and selling of goods or services, or the transporting for those purposes, across boundaries with foreign nations, across State lines, or with the Indian tribes is not sufficient to satisfy the requirement of subsection (a).

    This bill purports to require any proposed action by Congress to meet prescribed 'Constitutional authority' tests, while taking several Sections/Clauses of the Constitution out of play.  Under this bill, these portions of the Constitution cannot be used to prove Constitutional authority:

    Section 8. Clause 1. The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.  [doesn't count as 'Constitutional authority']

    Clause 18. The Congress shall have Power * * * To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by the Constitution in the Government of the United States, or in any Department or Officer thereof.  [doesn't  count as 'Constituitonal authority']

    Clause 3. The Congress shall have Power * * * To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.  [extremely limited interpretation; "across State lines" substituted for 'among the several States']

    The portions of the Constitution which, under this Bill, no longer count as 'Constitutional authority' are contained in (a), (c), and (d) of the Bill. Note that voiding Clause 18 takes away Congress' power to make laws that govern the country.

    After gutting the Federal lawmaking power, the Bill then empowers the States in (b), by stating that any Congressional action that "limits or abolishes any Federal activity, spending, or power overall" is to draw its 'Constitutional Authority' from Amendments 9 and 10:

    Amendment IX

    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    Amendment X

    The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

    I admit I am dumbfounded by this, and I hope our Constitutional experts will be able to make some sense of this.  All I can do is provide the texts and look at the plain language contained in the Bill and in our Founding Documents.

    But to my eye, it looks like this Bill, if passed, would void the power of Congress to make laws that govern the country and would put the power to determine 'Constitutionality' into the hands of political partisans in Congress, rather than in the Hands of the Supreme Court.  It would appear to take away Congress's power to make any Federally-effective laws, other than to disempower the Federal level.

    Would this Bill return the United States to an 'Articles of Confederacy' government, rather than a Federal government?  (Seeking some expertise here, please.)

    (ps -- Thanks for the shoutout on my previous comment.  I try to be useful.)

  •  Civics and American Government (4+ / 0-)
    Recommended by:
    carver, CroneWit, Catte Nappe, sfbob

    should be required classes from grade school on up.

    In grade school, you learn how to be a good citizen: obey STOP signs and WALK lights, don't litter, don't drive the wrong way on One-Way Streets, etc., so there is a society and not chaos.

    As children get older, they can learn the ins and outs of a democracy: how a bill becomes a law, how local elections work -- including the process of voting, how your city government functions, and on and on. By the time they get to higher grades, there is a knowledge base to build on, and the more sophisticated workings of government make more sense when not presented in a vacuum.

    I learned these things when I was in grade school, and had civics in ninth grade and government in twelfth. Why doesn't anyone teach them any longer?

    I guess these are now considered the government telling people what to do, and we just can't have that in "public" schools nowadays. (Never mind that I went to Catholic grammar school and learned civics there as well.) That, or too much knowledge about rights and the practices of government in the hands of the common man would be detrimental to The Powers That Be.

    It seems as if our founding documents have now been reinterpreted into ancient religious works that we must not read for ourselves, but only receive the wisdom in them from priest-politicians, whose interpretations are whatever benefits them, not We the People.

    "The difference between the right word and the almost-right word is like the difference between lightning and the lightning bug." -- Mark Twain

    by Brooke In Seattle on Wed Aug 07, 2013 at 08:22:26 AM PDT

  •  This is indeed an attempt to codify Lochnerism. (2+ / 0-)
    Recommended by:
    sfbob, spacecadet1

    "Nothing in all the world is more dangerous than sincere ignorance and conscientious stupidity." --M. L. King "You can't fix stupid" --Ron White -6.00, -5.18

    by zenbassoon on Wed Aug 07, 2013 at 08:26:07 AM PDT

    •  What is Lochnerism? Links, please? nt (0+ / 0-)
      •  Lochner v Maryland I believe is the SCOTUS (3+ / 0-)
        Recommended by:
        sfbob, CroneWit, spacecadet1

        decision.  Basically it says that Congress can't do anything to regulate anything.

        "Nothing in all the world is more dangerous than sincere ignorance and conscientious stupidity." --M. L. King "You can't fix stupid" --Ron White -6.00, -5.18

        by zenbassoon on Wed Aug 07, 2013 at 08:50:45 AM PDT

        [ Parent ]

      •  Under Lochner (4+ / 0-)

        The Supreme Court regularly struck down child labor laws, minimum wage laws, laws relating to collective bargaining and the right to organize and many other sorts of things we more or less take for granted. Lochner was only overturned in the 1937 thanks in no small part to the decades long efforts of Louis Brandeis (both before and after he became a justice of the Supreme Court).

        One of the implicit assumptions in Lochner is that a worker contracts with an employer on an equal if you don't like the terms one employer is offering (a 60 hour work week at 50 cents per hour let's say) you can simply go down the street and find another employer that offers more favorable terms and that this will not inconvenience you in any particularly significant way. It also follows from this that labor unions and collective bargaining constitute an impermissible means of "ganging up" on a corporation or an industry. It views each individual worker as having the same sort of bargaining power as a corporation.

        This sort of thinking would strike most of us today as utterly ludicrous. But Paul and Coburn find it to be quite reasonable.

  •  Some context on GOP's anti-government Right (0+ / 0-)

    Just happened to stumble into two articles that discuss the GOP's hard-right faction and its 'procedural sabotage' and anti-government tactics.  These helped me understand a bit more about the thinking and actions of this faction, so I share the links here --

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