Radical Right -- The Right's 'Tenther' Constitution

September 1, 2009

by Faiz Shakir, Amanda Terkel, Matt Corley, Benjamin Armbruster, Nate Carlile, Zaid Jilani, and Ian Milhiser

RADICAL RIGHT

The Right's 'Tenther' Constitution

In a recent Fox News interview, Rep. Michele Bachmann (R-MN) accused health care reform supporters of "forg[etting] what the Constitution says." Sen. Jim DeMint (R-SC), who once called for his Party to defeat health reform because it will "break" President Obama, claimed that health reform violates the Tenth Amendment and urged state legislators and governors to "champion individual freedom" by resisting the bill. Numerous state lawmakers -- including secessionist Texas Gov. Rick Perry (R) -- have struck a similar tone, endorsing "state sovereignty resolutions" that demand the federal government "cease and desist" enforcing many laws with which conservatives disagree. (Emboldened by Perry's hardline stance, Texas "tenthers" held a pro-secession rally at the state capital yesterday, demanding that their political opponents "go back to the U.S. where you belong.") Indeed, while "birther" conspiracy theorists make increasingly outlandish attempts to dismantle President Obama's legitimacy, "tenther" constitutionalists like Bachmann, DeMint, and Perry hope to dismantle an entire century's worth of progressive legislation.

THE 'TENTHER' AGENDA: In a nutshell, tenthers believe that President Franklin Delano Roosevelt led an illegal coup against the U.S. Constitution, exploiting the passions of the Depression Era to expand federal power to unconstitutional levels. Killing health reform is only the beginning of their agenda. Under the tenther constitution, Medicare, Medicaid, Social Security, federal education funding, the Veterans Affairs health system and the G.I. Bill are all illegal. The minimum wage, the requirement that employers pay overtime wages, and the ban on child labor are all beyond Congress' power to enact, and the federal ban on whites-only lunch counters is an unlawful encroachment on local business. Indeed, nearly every single law that Americans cherish -- from laws protecting workers' right to organize to laws forbidding race and gender discrimination -- could be eliminated overnight if the tenther constitution ever became law. One prominent tenther, a Texas official charged with rewriting that state's public school textbooks, even declared the federal highway system to be unconstitutional.

DISTORTING THE DOCUMENT: Tenthers derive their narrow vision of the Constitution from a strained reading of the Tenth Amendment, which provides that the Constitution contains an itemized list of federal powers and anything not contained in that list is beyond Congress' authority. In the tenthers' eyes, Congress' powers must all be read too narrowly to allow most federal statutes to exist. However, the tenther constitution bears little resemblance to the words of the document itself. Contrary to tenther claims that federal spending programs like Medicare or Social Security are unconstitutional, Article I of the Constitution empowers Congress to "lay and collect taxes" and to "provide for...the general welfare of the United States," which unambiguously authorizes it to spend money in ways that benefit the nation. Similarly, Congress' broad authority to enact regulatory schemes that "substantially affect interstate commerce" easily encompasses laws like the federal minimum wage and the requirement that businesses do not discriminate on the basis of race. As Roosevelt chided tenther-like conservatives from his era, "The Constitution of 1787 did not make our democracy impotent."

A LEGACY OF RADICALISM: Sadly, tentherism's assault on democracy is nothing new; indeed, retreat to outlandish constitutional theories is a favorite tactic of the right during times of historic upheaval. Tenther "state sovereignty resolutions" are little more than new names for the "interposition resolutions" enacted by southern states in the immediate wake of Brown v. Board of Education, which claimed that the federal government exceeded its constitutional authority when it extended the Constitution's promise of "equal protection of the laws" to the American South. Tenther claims that health reform is unconstitutional -- because the Constitution does not specifically use the words "health care" -- echo the infamous Southern Manifesto's argument that Brown was wrong because the "Constitution does not mention education." Much of the intellectual framework for tenther assaults on economic regulation comes from discredited Depression-era Supreme Court decisions that struck down essential provisions of the New Deal on the grounds that they exceeded Congress' lawful authority. Indeed, conservatives even justified the greatest act of treason in American history, the Civil War, by claiming that that the Constitution permits each state to leave the union at will. Now that America is slowly emerging from its most recent crisis, tenthers once again hope to exploit the nation's fears to fuel a radical constitutional agenda.

LABOR -- OBAMA ADMINISTRATION KILLS BUSH-ERA RISK ASSESSMENT PROPOSAL: In the final days of his administration, President Bush promised a "sprint to the finish" by "working to enact a wide array of federal regulations, many of which would weaken government rules" aimed at protecting workers. One key rule change sought by Bush Labor Secretary Elaine Chao that involved risk assessment, however, was not implemented before the administration left office. Yesterday, the U.S. Department of Labor made good on a promise to kill the proposal that would have made it "more difficult for the government to write new worker protection rules." The Labor Department issued a notice calling the proposed rule "unnecessary." OMBWatch reports that the "proposed rule was essentially an attempt to regulate regulations" that would have "added to the workload of regulators at the Occupational Safety and Health Administration (OSHA) and the Mine Safety and Health Administration (MSHA)" by creating an "additional mandatory step to an already complicated rulemaking process." Critics have argued the Bush administration was attempting to "delay the development of standards designed to protect workers from occupational hazards," including "making it harder to prove the level of risk workers face when exposed to toxins on the job." In May, when the Labor Department said it would reverse the rule, Rep. Lynn Woolsey (D-CA), chair of the Workforce Protections Subcommittee, said she was "thankful" to the leadership of Labor Secretary Hilda Solis for working to protect America's workers from health and safety violations. "The Secretary recognizes that the safety of workers is our top priority, and to do this we must be in the business of putting in place needed health and safety standards," Woolsey said in a statement.

The Justice Department's Civil Rights Division is planning a "revival of high-impact civil rights enforcement" after a shift away from such cases during the Bush administration. The DOJ will focus on "some of the most important areas of American political life," including housing, voting rights, and bank lending practices.

Senate Democrats yesterday announced that they will not unveil climate change legislation until "later in September." Democrats originally planned to introduce a Senate bill by late July, but then pushed it back to early September. They attributed the latest delay to the focus on health care reform.

In a new CBS News poll, 67 percent of Americans said that health care reforms being debated were "confusing." Only 31 percent said they had "a clear understanding of the proposed changes" while 60 percent said that President Obama "has not clearly explained his health care reform plans."

Though a new classified report by top Afghanistan General Stanley McChrystal does not call for additional American troops, officials say "that it effectively laid the groundwork for such a request in coming weeks." Yesterday, White House Press Secretary Robert Gibbs left open the possibility that President Obama would send more troops, referring to Afghanistan as "under-resourced" seven times.

In a Washington Post op-ed, conservative commentator George Will calls for "rapidly reversing the trajectory of America’s involvement in Afghanistan." "Forces should be substantially reduced to serve a comprehensively revised policy," writes Will. "America should do only what can be done from offshore, using intelligence, drones, cruise missiles, airstrikes and small, potent Special Forces units."

Massachusetts Gov. Deval Patrick (D) yesterday announced that 31,000 legal immigrants will lose access to dental, vision, hospice, and skilled nursing services under their state-subsidized insurance plans. In some cases, they will also see increases in their medication and treatment co-payments. Patrick stressed that "the services that the affected group tends to use the most will still be covered."

Mohsen Ruholamini, the 25-year-old son of a defeated Iranian presidential candidate, died after being beaten in jail. Authorities arrested Ruholamini during protests after the country's disputed June 12 presidential election. Supreme Leader Ayatollah Ali Khamenei has promised to "seek justice" in the case.

Virginia Republican gubernatorial candidate Bob McDonnell is in hot water over his 1989 graduate-school thesis, where he described working women as "detrimental" to the family, homosexuals as "fornicators," and decried the "purging" of religion from public schools. McDonnell told reporters yesterday that his views have changed since his time as a graduate student.

National Security Adviser ret. Gen. Jim Jones yesterday responded to Vice President Cheney's criticisms of President Obama's national security policies, saying that this administration's approach has resulted in "more captures, more deaths of radical leaders and a kind of a global coming-together."

And finally: The first pictures from former House Majority Leader Tom DeLay's "Dancing with the Stars" practice have been released. Check them out here.

Conservatives are scaring seniors about health care.

Shocker: Glenn Beck lies.

Why is anyone still listening to Dick Cheney?

Surfing through the occupation.

On the ground in post-coup Honduras.

Conservatives call for a World Net Daily boycott.

Discussing horserace journalism.

Let's start covering pro-health care marches.

"Protect Medicare and not cut it in the name of reform."
-- Tenet in the Republican National Committee's (RNC) "Senior's Health Care Bill of Rights, 8/24/09

VERSUS

"Oh yeah. You've got to deal with those inefficiencies, absolutely."
-- RNC Chairman Michael Steele, 8/31/09, responding to a question on whether Medicare cuts are on the table

Think Progress

The Right's 'Tenther' Constitution

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