Nevada Republican Senator Dean Heller is one of the GOP members of the U.S. Senate to sign on to the Tea Party Manifesto — as posted on August 2nd, he’s co-sponsoring the Paul/Coburn bill to gut the rules and decisions associated with the Commerce Clause. [TP] However, labor law isn’t the only thing that would be repealed in Heller-Land.
Note what the Coburn/Paul/Heller proposal states: “Prohibits the use of the Commerce Clause, except for “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 Indian tribes…” [Coburn]
The exceptions are the Rule. Except for buying, selling, and transporting goods or services… the Commerce Clause would not be applied as it is today. This isn’t a conservative reading of the U.S. Constitution, it’s a radically reactionary one.
The Clause, as contemporarily interpreted covers a wide range of commercial topics:
“From anti-trust policy to union organizing, from consumer rights, to civil rights and environmental protection, progressives have enacted legislation that conforms corporate commerce to the agenda and values of society rather than accepting the conservative claim that society must conform itself to the agenda and values of corporate commerce. Our robust Commerce Clause reflects the genius of the Framers, who considered well-regulated national commerce on fair terms to be a crucial constitutional value and a social and economic imperative.” [PFAW] (emphasis added)
Thus by narrowing the spectrum of topics which may be considered as coming under the Commerce Clause, the reactionaries would void anti-trust laws (what multinational corporation wouldn’t love that?) Roll back consumer protection laws (what Big Bank wouldn’t love to see the repeal of Sarbanes-Oxley and the Dodd Frank Act?) Ditch the interpretations of the Commerce Clause as they apply to Civil Rights (what loving son of the Old South wouldn’t like that?) and, pull the rug out from under environmental protection laws (Hey, the North Pole is already a lake — why not just increase environmental pollution until we can water ski on it?)
This essentially pro-corporate assault on the Commerce Clause isn’t something which popped out of the Head of Zeus recently, the Roberts’ Court skewed its decision upholding the Affordable Care Act by chipping away at the use of the Commerce clause in its decision.
We’d not be the first people to notice this:
“But the health care law was, ultimately, a pretext. This was a test case for the long-standing—but previously fringe—campaign to rewrite Congress’ regulatory powers under the Commerce Clause.” [Slate]
Here’s the crucial part of the Roberts’ decision:
“Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers. The individual mandate thus cannot be sustained under Congress’s power to “regulate Commerce.” [Slate]
There’s that phrase again, so beloved by the radical right: “a government of limited and enumerated powers.” If the Congress cannot enact statutes predicated on the Commerce Clause beyond regulating buying, selling, and transporting goods and services, then it cannot enact civil rights statutes, labor statutes, environmental law, consumer protections, and anti-trust legislation.
Shall we return to the days when a motel in this country could refuse rooms to people of color? A restaurant? A movie theater? Under the very narrow Tea Party interpretation of the Commerce Clause may a local realtor refuse to show homes to members of ethnic minority groups? Can a bank “red line” minority ethnic communities? Can the local grocery refuse to hire members of the LBGT community? Senator Heller and his cohorts would have it so.
Under the guise of legislating only that which is related directly to the buying, selling, and transporting of goods and services, may we countenance discrimination against women in the workplace? Is it acceptable for a corporation to pay women less than men for doing the same job? Would it acceptable to hire a less qualified man for a position also drawing interest from very well qualified women?
The point is that while selling, buying, and transporting might be regulated — manufacturing would not be thus restricted. Nor, would the processes by which items are manufactured. So, if your neighborhood, or city, begins to smell like Pittsburgh in the 1920’s, or people are being killed by polluted air such as happened in Donora, PA in 1948 — so be it?
Let’s not delude ourselves into thinking that this is all some sort of esoteric Constitutional argument over interpretative minutiae. There is a well coordinated, more than adequately financed, movement in this country to turn back the progress made by 75 years of federal legislation and litigation to improve the lives of the citizens of this country — in terms of their health, their working lives, their basic rights, and their protection from monopolies and Big Trusts.
It’s 2020 — and the GOP is pleased that its efforts in the legislatures, the Congress, and the Supreme Court have put children back in factories, have put women in their place, have quieted those noisy minority groups, have put the smog back in the fog, and put the Bankers back in their rightful positions of ultimate power. Welcome to Heller-Land. Dystopia personified.