What If the Tea Party
They Have a Plan for
the Constitution, and It Isn’t Pretty
by Ian Millhiser - Center for American Progress
In the Tea Party’s America, families must mortgage their
home to pay for their mother’s end-of-life care. Higher education is a luxury
reserved almost exclusively to the very rich. Rotten meat ships to supermarkets
nationwide without a national agency to inspect it. Fathers compete with their
adolescent children for sub-minimum wage jobs. And our national leaders are
utterly powerless to do a thing.
At least, that’s what would happen if the Tea Party succeeds
in its effort to reimagine the Constitution as an antigovernment manifesto.
While the House of Representatives pushes Rep. Paul Ryan’s (R-WI) plan to phase
out Medicare, numerous members of Congress, a least one Supreme Court justice,
and the governor of America’s second-largest state now proudly declare that
most of the progress of the last century violates the Constitution.
It is difficult to count how many essential laws would
simply cease to exist if the Tea Party won its battle to reshape our founding
document, but a short list includes:
Security and Medicare
children's health insurance, and other health care programs
federal education programs
federal antipoverty programs
food safety inspections and other food safety programs
labor laws, the minimum wage, overtime, and other labor protections
civil rights laws
Indeed, as this paper explains, many state lawmakers even
embrace a discredited constitutional doctrine that threatens the union itself.
What’s at stake
The Tea Party imagines a constitution focused entirely upon
the Tenth Amendment, which provides that “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” — which is why their
narrow vision of the nation’s power is often referred to as “tentherism.” In
layman’s terms, the Tenth Amendment is simply a reminder that the Constitution
contains an itemized list of federal powers — such as the power to regulate
interstate commerce or establish post offices or make war on foreign nations — and
anything not contained in that list is beyond Congress’s authority.
The Tea Party, however, believes these powers must be read
too narrowly to permit much of the progress of the last century. This issue
brief examines just some of the essential programs that leading Tea Partiers
would declare unconstitutional.
Social Security and
The Constitution gives Congress the power “to lay and
collect taxes, duties, imposts and excises, to pay the debts and provide for
the common defense and general welfare of the United States,” thus empowering
the federal government to levy taxes and leverage these revenues for programs
such as Social Security and Medicare. A disturbingly large number of elected
officials, however, insist that these words don’t actually mean what they say.
In a speech to the conservative American Legislative
Exchange Council, Texas Gov. Rick Perry listed a broad swath of programs that
“contradict the principles of limited, constitutional government that our
founders established to protect us.” Gov. Perry’s list includes Medicare and “a
bankrupt social security system, that Americans understand is essentially a
Ponzi scheme on a scale that makes Bernie Madoff look like an amateur.” And
Perry is hardly the only high-ranking elected official to share this view.
Sen. Mike Lee (R-UT) mocked President Franklin Delano
Roosevelt for calling upon the federal government to provide “a decent
retirement plan” and “health care” because “the Constitution doesn’t give
Congress any of those powers.” Rep. Bob Goodlatte (R-VA), who engineered the
House of Representatives’ dramatic reading of the Constitution earlier this
year, claimed that Medicare and Social Security are “not in the Constitution”
and are only allowed to exist because “the courts have stretched the
Constitution to say it’s in the general welfare clause.” Sen. Tom Coburn (R-OK)
said we should eliminate Medicare because “that’s a family responsibility, not
a government responsibility.”
Because this erroneous view of our founding document is
rooted in an exaggerated view of the Tenth Amendment’s states rights’
provision, many so-called tenthers claim that eliminating Social Security and
Medicare wouldn’t necessarily mean kicking millions of seniors out into the
cold because state governments could enact their own retirement programs to
pick up the slack. This proposal, however, ignores basic economics.
Under our current system, someone who begins their career in
Ohio, moves to Virginia to accept a better job offer, and then retires in
Florida pays the same federal taxes regardless of their residence. These taxes
then fund programs such as Medicare and Social Security. If each state were
responsible for setting up its own retirement system, however, the person
described above would pay Ohio taxes while they worked in Ohio, Virginia taxes
while they lived in Virginia, and would draw benefits from the state of Florida
during their retirement. The state which benefited from their taxes would not
be the same state that was required to fund their retirement, and the result
would be an economic death spiral for states such as Florida that attract an
unusually large number of retirees.
For this reason, tenther proposals to simply let the states
take over Social Security and Medicare are nothing more than a backdoor way to
eliminate these programs altogether. If the Tea Party gets its way, and our
nation’s social safety net for seniors is declared unconstitutional, millions
of seniors will lose their only income and their only means to pay for health
Medicaid, the State
Children’s Health Insurance Program, and other health care programs
The Tea Party’s constitution has plenty of bad news for
Americans below the retirement age as well. Rep. Virginia Foxx (R-NC), for
example, recently claimed that any federal involvement in health care
whatsoever is unconstitutional because “the words ‘health care’ are nowhere in
Sen. Coburn lumped Medicaid in with Medicare when he claimed
that providing for the frailest Americans is a “family responsibility,” and
Gov. Perry includes Medicaid on his list of programs that “contradict the
principles of limited, constitutional government.” Sen. Mike Lee’s (R-UT) claim
that “the Constitution doesn’t give Congress” any authority over health care is
a blanket statement encompassing all federal health programs.
If this vision were to be implemented, all federal health
care programs would simply cease to exist and millions of Americans would lose
their only access to health insurance.
Education is also on the Tea Party’s chopping block. Rep.
Scott Garrett (R-NJ) routinely grills education secretaries at congressional
hearings, insisting that the Constitution does not authorize any federal
involvement in education. Similarly, Rep. Foxx insists that “we should not be
funding education” because she insists doing so violates the Tenth Amendment.
And Sen. Coburn does not “even think [education] is a role for the federal
In its strongest form, this position wouldn’t just eliminate
federal assistance for state-run public schools. It would also eliminate
programs enabling Americans to pay for their college education. Millions of
students would lose their Pell Grants and federal student loans if the Tea
Party’s full vision of the Constitution were implemented.
Some tenthers, however, offer a slightly less drastic
position. It is commonplace for the federal government to grant money to the
states if those states agree to comply with certain conditions. Federal law,
for example, provides generous public education grants provided that states
gather data on student achievement and comply with other such conditions. Many
Tea Partiers argue that these conditions violate the Constitution. Thus, Rep.
Blake Farenthold (R-TX) claims that the Constitution only permits the federal
government to provide states with “block grants.”
The truth, however, is that the federal government has never
told states how to educate their children — and it could not do so if it tried.
Under a Supreme Court decision called Printz
v. United States, federal laws ordering a state to take a specific action
actually do violate the Tenth Amendment. So, the state of Texas is perfectly
free to turn down federal grants if they do not like the conditions attached to
Moreover, it is not clear how federal grants of any kind can
exist if Congress is not allowed to attach conditions to them. If Congress
cannot constitutionally require states to spend grant money on standardized
testing, for example, how can they require that it be spent on education and
not on building a new wing for the governor’s mansion? Thus, even the slightly
more moderate position advocated by people like Rep. Farenthold would likely
eliminate the federal government’s ability to provide educational assistance to
low-income students or otherwise help fund public schools.
federal disaster relief, and other help for the less fortunate
Sen. Lee would go even further in cutting off assistance for
low-income Americans. In an interview with a Utah radio host, Lee claimed that
the framers intended all antipoverty programs to be dealt with exclusively at
the state level. This would not only eliminate programs like income assistance
and food stamps, it could threaten unemployment insurance, federal job
training, and other programs intended to provide a bridge out of poverty.
In the same interview, Sen. Lee claimed that federal relief
for hurricane, earthquake, tornado, and other disaster victims is “one of many
areas where we ought to focus on getting that power back to the states,” a
position that would kill the Federal Emergency Management Agency and prevent
the nation as a whole from rallying to the support of a state whose financial
resources are overwhelmed by a major natural disaster.
Sen. Lee also claims that “the framers intended state
lawmakers deal with” food safety in this same radio interview. This position
would not simply endanger the residents of states with inadequate regulation of
their food supply, it would also create costly and duplicative state inspection
programs and impose logistical nightmares on food-importing states.
If a cow is raised in Texas, slaughtered in Oklahoma, and
then sold as steaks in New York, which state is responsible for inspecting the
The likely answer is that all three states would have their
own system of laws, tripling the regulatory compliance costs for the meat
Moreover, if New York decides that Oklahoma’s inspections’
regime is inadequate, its only recourse would be to require meat producers to
submit their products to a customs check at the border before it could be sold
in that state. The result would be higher taxes for New Yorkers forced to pay
for these customs stations, and higher costs for businesses forced to submit to
inspections every time they brought food across a state border.
Child labor laws, the
minimum wage, overtime, and other labor protections
Nearly 100 years ago, the Supreme Court declared federal
child labor laws unconstitutional in a case called Hammer v. Dagenhart. Twenty-two years later, the Court recognized
that Hammer’s holding was “novel when
made and unsupported by any provision of the Constitution,” and unanimously
overruled this erroneous decision.
Sen. Lee, however, believes that, while Hammer might “sound harsh,” the Constitution “was designed to be
that way. It was designed to be a little bit harsh,” and thus we should return
to the world where federal child labor laws are unconstitutional. Moreover, Lee
has a very powerful ally prepared to sweep away nearly all national protections
for American workers.
Under existing Supreme Court doctrine, Congress’s authority
to “regulate commerce ... among the several states” includes the power to
regulate the roads and railways used to transport goods in interstate commerce,
as well as the goods themselves and the vehicles that transport them.
Additionally, Congress may regulate activities that “substantially affect
interstate commerce.” This “substantial effects” power is the basis of
Congress’s authority to make labor laws universal throughout all places of
Yet Justice Clarence Thomas claimed in three separate cases — U.S. v. Lopez, U.S. v. Morrison, and Gonzales
v. Raich — that this “substantial effects” test is “at odds with the
constitutional design.” It is possible that Thomas’s vision would still allow
some limited federal labor regulation—such as a law prohibiting children from
becoming railway workers — but anything resembling the essential web of federal
laws that protect American workers today would be impossible.
Civil rights laws
Shortly after he won his party’s nod to be a U.S. Senate
candidate, Sen. Rand Paul (R-KY) revealed that he opposes the federal bans on
whites-only lunch counters and race discrimination in employment. In a rambling
interview with MSNBC’s Rachel Maddow, Paul explained that, while he believes
that Congress may ban discrimination from “public institutions,” he does not
support antidiscrimination laws that regulate private business.
As Sen. Paul suggested in that interview, these basic civil
rights laws — like national laws banning child labor and establishing a minimum
wage — can be snuffed out of existence if Congress’s power to enact commercial
regulations is read too narrowly.
In 1964, the Supreme Court unanimously upheld the federal
ban on whites-only lunch counters — once again relying on the “substantial
effects” test to do so. For this reason, it is likely the Justice Thomas would
strike down this and other federal laws protecting civil rights.
Gov. Perry suffered well-deserved ridicule when he suggested
in 2009 that Texas may secede from the union if “Washington continues to thumb
their nose at the American people.” But Gov. Perry’s ill-considered remark is
merely a distraction compared to a much larger movement to effectively secede
from the union one law at a time.
Gov. Perry joins lawmakers from New Hampshire, Montana,
Virginia, Idaho, Florida, and many other states in backing unconstitutional
state laws purporting to “nullify” a federal law. Many state legislatures have
passed, and a few governors have signed, laws claiming to nullify part of the
Affordable Care Act, and Perry signed a law that partially nullifies federal
light bulb standards.
Nullification is an unconstitutional doctrine claiming that
states can prevent a federal law from operating within their borders. Although
nullification conflicts directly with the text of the Constitution, which
provides that Acts of Congress “shall be the supreme law of the land…anything
in the Constitution or laws of any State to the contrary notwithstanding,” it
has experienced a significant revival among state lawmakers eager to
second-guess national leaders’ decisions.
his doctrine is not simply unconstitutional, it is a direct
attack on the idea that we are the United States of America. As James Madison wrote in 1830, allowing states to
simply ignore the laws they don’t want to follow would “speedily put an end to
the Union itself.”
America has long endured the occasional politician eager to
repeal the entire 20th Century, but, as President Dwight Eisenhower observed
nearly 60 years ago, “Their numbers [were] negligible and they are stupid.”
Sadly, this is no longer the case. Tenthers increasingly dominate conservative
politics and their numbers are growing.
If this movement succeeds in replacing our founding document
with their entirely fabricated constitution, virtually every American will
suffer the consequences. Seniors will lose their Social Security and Medicare.
Millions of students could lose their ability to pay for college. And workers
throughout the country will lose their right to organize, to earn a minimum
wage, and to be free from discrimination.
Worse, because the Tea Party believes their policy
preferences are mandated by the Constitution, they would do far more than
simply repeal nearly a century of essential laws. Once something is declared
unconstitutional, it is beyond the reach of elected officials — and beyond the
voters’ ability to revive simply by tossing unwise lawmakers out of office.
For this reason, the Tea Party’s agenda is not simply one of
the most radical in generations; it is also the most authoritarian. They do not
simply want to eliminate decades of progress; they want to steal away “We The
People’s” ability to bring it back.
Ian Millhiser is a
policy analyst at the Center for American Progress and is the Editor of The
Center for American Progress Action Fund’s ThinkProgress Justice.