The Commerce Clause and American Progress

In the Tea Party, it’s all the rage these days to declare everything unconstitutional – Social Security, Medicare, unemployment insurance, disaster relief, federal civil rights laws, health care reform, basically any law that enables the federal government to take on national-scale problems.

One of the main strategies that the Tea Party has been using to push this extreme and regressive view of the Constitution is pushing aside the Commerce Clause, the clause in the Constitution that gives Congress the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.”

The Commerce Clause, long recognized by courts as the rationale for important progressive economic programs, has come under fire from opponents of health care reform, who are arguing in the courts – with mixed success -- that the clause does not allow the Affordable Care Act’s individual health insurance mandate.

In a new report, People For the American Way Foundation Senior Fellow Jamie Raskin argues that “a powerful case can be made “that the Commerce Clause is “the most important constitutional instrument for social progress in our history.”

Without it, Congress could not have passed the National Labor Relations Act, the Fair Labor Standards Act, the Clayton and Sherman Anti-Trust Acts, the Civil Rights Act of 1964’s prohibition of race discrimination in hotels, restaurants and other places of public accommodation, the Occupational Safety and Health Act, the Equal Pay Act, the Clean Air Act, the Clean Water Act and dozens of other federal statutes protecting the environment and establishing the rights of citizens in the workplace and the marketplace.


Why, then, does the Commerce Clause seem pale and dull next to the Free Speech and Equal Protection Clauses?
Perhaps it is because these provisions clearly declare radiant principles of liberty and equality that translate into easily understood and intuitively attractive protections against arbitrary government power.

Because the Commerce Clause has been a powerful instrument of social reform over the last century, its meaning has periodically provoked deep jurisprudential controversy. This is ironic since the Court routinely and unanimously upheld congressional assertion of a comprehensive federal commerce power before broad democratic purposes entered the picture. The commerce power became the target of virulent attack by corporate conservatives when progressives and labor gained political influence and used this power as the constitutional basis upon which to regulate and improve the character, terms and conditions of the American workplace and marketplace in favor of large numbers of the American people.


Raskin follows the Commerce Clause from its origins at the Constitutional Convention, through the Lochner era, when an activist court “put the Commerce Clause in a straightjacket” to strike down federal worker protection laws and other attempts to regulate interstate commerce, to the late 1930s, when the court returned to a more expansive view of the clause, allowing progressive economic programs and civil rights reforms to flourish, to the Rehnquist Court, which again began to narrow down the scope of Congress’s constitutional regulatory power, to challenges to the Affordable Care Act, which threaten to take us back to the Lochner era.
 

You can read the full report here.

PFAW

Don't Ask Don't Tell: So Long, Farewell

Don’t Ask Don’t Tell, the discriminatory law that banned gays and lesbians from openly serving in our nation’s armed forces, has been officially been relegated to the history books after a devastating 18-year existence that snatched away the careers of more than 14,000 capable and dedicated servicemembers. With repeal celebrations happening across the country, President Obama released a statement, which said in part,

Today’s achievement is a tribute to all the patriots who fought and marched for change; to members of Congress, from both parties, who voted for repeal; to our civilian and military leaders who ensured a smooth transition; and to the professionalism of our men and women in uniform.

Don’t Ask Don’t Tell repeal is a major achievement in itself, but it is also indicative of where we are as a country regarding LGBT equality. While the Right Wing has issued statements condemning this historic occasion, Republican members of Congress have largely remained silent. Opponents of gay rights realize that their discriminatory views are quickly becoming outdated, and that younger voters overwhelmingly support LGBT equality.

Celebrations have been occurring across the country. One moving video in particular has gone viral on Youtube. In it, a gay soldier from Alabama, currently stationed in Germany, calls his father right after Don’t Ask Don’t Tell repeal is finalized to come out. The soldier is greeted with acceptance and loving support. After the long fight waged by People For the American Way, other progressive groups and brave men and women in uniform who often risked their careers to fight for what they believe in, it’s heartening to see how America has become a little more just, equal and fair today than it was before.

 

 

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Saving the Constitution From the Tea Party

What if our federal government didn’t have the power to provide for emergency disaster relief? To prevent children from being put to work at an early age…without even the protection of a minimum wage? To prohibit discrimination in employment, public accommodations, and public schools? To help struggling states fund public education?

These are the logical ends of the radical, regressive vision of the Constitution that has become popular among the Tea Party -- and that for the first time is enjoying serious consideration in the halls of Congress and in federal court rooms.

The Center For American Progress’s Ian Millhiser released a paper today outlining some of the ways the Tea Party’s selective worship of parts of the Constitution threatens to derail the success of the hard-won protections contained in the whole Constitution. Millhiser brainstorms a list of some of the things that would be unconstitutional under the Tea Party’s Constitution:

  • Social Security and Medicare
  • Medicaid, children's health insurance, and other health care programs
  • All federal education programs
  • All federal antipoverty programs
  • Federal disaster relief
  • Federal food safety inspections and other food safety programs
  • Child labor laws, the minimum wage, overtime, and other labor protections
  • Federal civil rights laws

 

You can add to that the basic definition of citizenship and the concept of separation of church and state. And that doesn’t even include the progressive amendments to the Constitution that Tea Party activists want to roll back, such as the amendment providing for the direct election of U.S. senators.

PFAW examined the Tea Party’s dangerous cherry-picked Constitution in a report last year, Corporate Infusion: What the Tea Party’s Really Serving America , which demonstrates that the Tea Party’s supposed allegiance to the Constitution deliberately ignores the text and history of the original document and the progressive amendments that have extended its freedoms to more and more Americans.

Earlier this week, PFAW Foundation, CAP and the Constitutional Accountability Center launched an effort called “Constitutional Progressives,” aimed at protecting and defending the whole Constitution – it’s its text, history and more than 200 years of amendments. You can sign a pledge to support the whole Constitution at constitutionalprogressives.org.

 

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Mitt Romney Brings Back Bush’s Economics and Bork’s Jurisprudence

When Mitt Romney announced last month that his campaign’s legal team would be led by rejected Supreme Court nominee Robert Bork, we were somewhat aghast. Bork’s legal record was so extreme – he opposed the Civil Rights Act and the right to birth control, for instance – that his 1987 Supreme Court nomination was rejected by the Senate. And his views have hardly tempered since then – a 2002 PFAW report checked back in on Bork’s crusades against pop culture, freedom of expression and gay rights.

But Robert Bork isn’t the only blast from the past who Romney has brought in to help develop his policies. Today, the former Massachusetts governor announced his economic team – which unsurprisingly includes two prominent economic advisors to George W. Bush, including one of the primary architects of the disastrous 2003 Bush tax cuts.

Two of the four members of Romney’s econ team are former Bush advisers – R. Glenn Hubbard, who was the chairman of the Council of Economic Advisers from 2001 to 2003, and N. Gregory Mankiw, who took over from 2003 to 2005. Hubbard helped devise the tax cuts for the wealthy that were the largest contributor to the ballooning budget deficit under Bush, and which Republicans in Congress still refuse to roll back. Mankiw helped Bush with his plan to privatize Social Security and praised the benefits of outsourcing labor.

Mitt Romney is getting something of a free pass in the current GOP field, but his choice of advisors shows just how extreme he really is. The last thing we need is more economic policies like Bush’s or judges like Bork, but under Romney it seems that’s exactly what we’d get.
 

PFAW

No New Taxes! (Except for the Poor and Middle Class)

You might remember, if you haven’t forced it from your memory, that a few weeks ago Congress participated in some nerve-wracking brinksmanship over a routine but necessary raising of the debt ceiling, risking a disastrous default and ultimately causing the first downgrade of U.S. credit in history.

The reason for that debacle was that that Republicans in Congress were looking for leverage to pursue drastic cuts in government services while refusing any and all revenue increases as per the no-exceptions “no new taxes” pledge the majority of them have signed at the bequest of Americans for Tax Reform's Grover Norquist.

Well, it turns out the GOP’s “no new taxes” pledge might actually have an exception – when it comes to raising taxes on the working poor. Last December, Congress approved President Obama’s request for a temporary reduction of the payroll tax paid by working people with the lowest incomes. The cuts are now set to expire, and unlike George W. Bush’s incredibly costly tax cuts on the wealthy, the GOP is happy to see this tax relief for the poor and middle class go.

Slate’s David Weigel writes that the push to make low-income people pay more taxes while shielding the wealthy and corporations from new tax burdens is part of a changing tax orthodoxy in the GOP, with leaders like Michele Bachmann and Rick Perry advocating for pressing new income taxes on people – largely the elderly and the working poor – who are currently exempted from them:


This isn't a new theory. In 2002 and 2003, long before it got Huntsman in the room, the Wall Street Journal editorialized that poor people who didn't pay income taxes were "lucky duckies." The poor slob with a low income and child tax credit would get a small or nonexistent tax bill, not one that would "get his or her blood boiling with tax rage." The problem here wasn't that the poor slob wasn't paying any taxes; the problem was that his meager tax bill failed to foment enough anger to reduce taxes on other people. Tax cuts for the rich—tax cuts for anyone, really, but the Journal has always been concerned about tax cuts for the rich—require a broad base of outrage.


Republican politicians didn't make this argument—until the Obama era. What changed? For decades, the "lucky ducky" number, the percentage of Americans that pay no taxes, never rose above 30 percent. The Bush tax cuts pushed it over 30 percent, but not too far over. Then, in 2008 and 2009, the economy collapsed. The government responded with, among other things, new tax deductions.


The result: The percentage of people paying no income taxes spiked up to 47 percent and stayed there. When the Tea Party started rallying in 2009, it wasn't protesting higher taxes, because federal income taxes were lower, with more loopholes. It was protesting the perception that productive Americans were shelling out for an ever-expanding class of moochers. And Republicans have taken the Tea Party's lead.


Of course, the increase in taxes on the working poor and the middle class that is currently on the table might not exactly follow the letter of the Americans for Tax Reform anti-tax pledge that the majority of GOP members of Congress have signed. But does it not count when it’s the incomes of the poor and the middle class that are at stake? The Washington Post’s Greg Sargent has put in an asked Norquist’s group if the payroll tax increase violates the pledge, but hasn’t heard back from them.
 

PFAW

DHS Announcement on Deportations Marks Significant Step Toward Comprehensive Immigration Reform, Work Remains

On August 18, the Department of Homeland Security announced a major shift in its deportation priorities, monumental news and a very encouraging first step toward comprehensive immigration reform in America. DHS will now focus its deportations on only the highest priority cases, primarily those with criminal records or who pose threats to national security.  Low priorities will include veterans, those brought to the US as children, and spouses and families, where the administration’s understanding includes LGBT families. All 300,000 cases currently pending are up for review, as are future cases.

This change in policy is a significant victory for advocates of comprehensive immigration reform, including supporters of the DREAM Act and the Uniting American Families Act, but much more work remains to be done. The change only applies on a case-by-case basis: as José Antonio Vargas, founder of DefineAmerican.com, pointed out on his blog, broad policy change will have to come out of Congress. It seems the Obama administration has done as much as it can while Republicans continue to move the goal-posts on what they deem acceptable, as Rachel Maddow argued last night. Indeed, the Obama Administration has met Republican demands in increasing enforcement: 2009 and 2010 saw a continued increase in the number of people deported, despite a sharp decline in border apprehensions, meaning the Administration is deporting more people even while fewer are trying to get into the country illegally. We must continue to push for change that comprehensively addresses the needs of millions more immigrants not affected by this announcement.

You can read more about the new deportation policy here, and be sure to check out our fact sheets on the DREAM Act and the Uniting American Families Act.

PFAW

Darrell Issa's Two Hats

Rep. Darrell Issa’s ties to big business run deep, and as chairman of the House Oversight and Government Reform committee, Issa has functioned quite efficiently as an arm of a Wall Street lobbying shop. He has demanded that government regulators back off from applying new rules to Goldman Sachs, and he has fought tooth-and-nail to deny the new Consumer Financial Protection Bureau, and its yet-unconfirmed director Rich Cordray, any significant means to protect the public from fraud and abuse by the financial industry.

It’s (unfortunately) expected that members of Congress will take pains to protect their favored constituencies, but Issa has taken the overlap of money and politics to a new extreme. Issa’s deep ties to Wall Street are not a figment of his distant past – to this day he is so deeply beholden to Wall Street’s interest that it is difficult at times to discern which hat he is wearing – his investment tycoon hat or his chairman-of-one-of-the-most-powerful-committees-in-Congress-responsible-for-holding-corporations-and-the-government-accountable hat.

For example:

  • While Issa fought to block the SEC investigation of Goldman Sachs, he quietly bought $600,000 worth of Goldman Sachs bonds.
  • While Issa was accusing the Treasury of a “cover-up” in their role in Bank of America’s purchase of Merrill Lynch, he didn’t mention that he had completed transactions with Merrill Lynch totaling $1 billion over the last decade.
  • Many of Issa’s staffers epitomize the K-Street ‘revolving door.’

But the most troubling symptom of Issa's rapid swapping of hats is that the American people suffer when the Oversight committee fails to do its job  outcomes of investigations are pre-determined. When the committee -- at Issa’s direction -- investigated the FCIC for finding the “wrong” causes of the financial crisis, Issa simply cancelled the hearing when the investigation turned up examples of wrongdoing by Republicans. In other words, anything that, in the words of Issa's spokesman, “doesn’t fit the narrative,” was thrown out and what could have been an important investigation was postponed indefinitely.

As more and more examples of Issa’s eagerness to put corporations before people and Wall Street before Main Street rise to the surface, the American people will surely demand that those charged with making sure everyone plays by rules do so themselves.

PFAW

Rick Perry: Uniting the Really Far Right and the Really, Really Far Right

Cross-posted from the Huffington Post

Texas Gov. Rick Perry formally launched his presidential campaign last weekend, apparently hoping to upstage those competitors who were slugging it out in the Iowa Straw Poll. The event was won by Michele Bachmann, whose core supporters come from the same Religious Right-Tea Party crowd expected to be Perry's base. He may have just made it official, but in fact Perry has already been running hard. A week before his announcement, he solidified the devotion of Religious Right leaders and activists with a defiantly sectarian prayer rally sponsored by some of the country's most extreme promoters of religious and anti-gay bigotry. His financial backers began hitting up donors a while ago.

Perry is hoping to take advantage of a relative lack of enthusiasm for the current Republican field and its erstwhile front-runners. His potential to upset the field is reflected in the fact that he was polling in the double-digits before even entering the race, drawing far more support than candidates like Newt Gingrich and Rick Santorum who have seemingly been running for years. Ed Kilgore at The New Republic wrote recently that Perry has become "the unity candidate of the GOP" because he "seems to perfectly embody the Republican zeitgeist of the moment, appealing equally to the GOP's Tea Party, Christian Right, and establishment factions while exemplifying the militant anti-Obama attitude that holds it all together." Perry does indeed draw support from both establishment and far-right Republicans: last year, prizes offered by his election campaign included lunch with GOP strategist Karl Rove and a spiritual tour of the U.S. Capitol with right-wing pseudo-historian David Barton.

The Religious Right

Perry's love affair with even the most extreme elements of the Religious Right is a long-term relationship that started years before the recent prayer rally. Over the years, Perry has persistently backed the efforts of Religious Right activists on the Texas school board to use the textbook selection process to impose right-wing religious and political ideology on science and history textbooks. He has shown little respect for the separation of church and state and has worked to further restrict access to abortion in the state.

His reelection campaigns have relied heavily on church-based organizing and networks of far-right evangelical pastors mobilized by the likes of self-described "Christocrat" Rick Scarborough. According to the Texas Freedom Network, Between May 2005 and October 2008 the Texas Restoration Project held eight pastors' policy briefings. Part of Perry's invitation to the October 2008 event said:

While Congress occupies its time trying to legislate defeat in Iraq, we hope you will attend a Pastors Policy Briefing that will equip you to walk point in the war of values and ideas.

Rediscovering God in America -- Austin is intended to remind us that excuses are not the proper strategy when facing evil and confronting enemies. Instead, we must rally godly people and seek God's provision for the resources, the courage, and the strength necessary to win and, ultimately, glorify Him.

In 2009, he participated in a closed-door session with Texas pastors sponsored by the U.S. Pastor Council, and hosted a state prayer breakfast that featured Gary Bauer as the keynote speaker. And last year, he was visited by a group of pastors associated with the dominionist New Apostolic Reformation, who told him that God had chosen him for bigger things; they were among the leaders of last weekend's "Response."

The Response itself was called by Perry but sponsored and paid for by the American Family Association, which has been designated a hate group by the Southern Poverty Law Center for its pattern or spreading false and denigrating information about gay people, and which promotes some of the ugliest bigotry spewed on the nation's airwaves. Among the extremist co-sponsors and speakers at The Response were dominionist Mike Bickle, who has said that Oprah is a harbinger of the anti-Christ, and pseudo-historian David Barton, who claims that Jesus opposed progressive taxes, the minimum wage, and collective bargaining by unions.

The Tea Party Right

Perry also seamlessly blends the Tea Party's anti-Washington fervor with the Religious Right's Christian-nation vision. Last year, at an event sponsored by the Texas Eagle Forum, Perry said the November 2010 elections were "a struggle for the heart and soul of our nation." Said Perry, "That's the question: Who do you worship? Do you believe in the primacy of unrestrained federal government? Or do you worship the God of the universe, placing our trust in him?"

If it seems remarkable and contradictory that Perry would seek the presidency so soon after speculating on the benefits of seceding from the union "if Washington continues to thumb its nose at the American people," it is no less contradictory than Perry promoting his anti-Washington book, "Fed Up: Our Fight to Save America from Washington," while repeatedly requesting federal emergency assistance to fight wildfires that have raged in Texas this year.

The Economic Right

Perry is almost certain to make jobs -- and his claims that Texas' low-tax, low-regulation, low-wage environment would be good for what ails America -- a centerpiece of his campaign. In fact he has been publicly praying about regulations that he says stifle business and jobs. That vision will almost certainly make Perry popular among the corporate funders that are increasingly funneling money into Republican campaigns in the wake of the Supreme Court's Citizens United decision that corporations have the same rights as citizens to influence elections.

Perry's economic policies may be good for corporate profits, but they aren't much of an economic model for the rest of us. Nobel Prize-winning economist and New York Times columnist Paul Krugman wrote earlier this year:

Texas is where the modern conservative theory of budgeting -- the belief that you should never raise taxes under any circumstances, that you can always balance the budget by cutting wasteful spending -- has been implemented most completely. If the theory can't make it there, it can't make it anywhere.

Debt owed by the state of Texas has doubled during Perry's tenure as governor; the state's per-capita debt is worse than California's. And this year, Texas lawmakers wrestled with a budget shortfall that Associated Press called "one of the worst in the nation." Perry's budget relied heavily on federal stimulus funds to plug a massive 2010 budget deficit. The budget finally passed this year cut some $4 billion out of state support for public education and is expected to result in tens of thousands of teacher layoffs.

Meanwhile, Texas ranks at or near the bottom of many indicators of individual and community health. It is worst in the country in the percentage of children with health insurance and pregnant women receiving early prenatal care. It has the highest percentage of workers earning at or below the minimum wage. It has the lowest percentage of adults with a high school diploma. It is worst for known carcinogens released into the air and among the worst for toxic pollution overall.

The Right Online

Perry has sometimes adopted the Sarah Palin approach to media. According to the conservative Daily Caller, Perry declined to meet with newspaper editorial boards during his primary race against Sen. Kay Bailey Hutchison, but "went out of his way to make himself available to conservative bloggers." The Caller's Matt Lewis predicts that "a large percentage of conservative bloggers for sites like RedState.com" will "jump on the Perry bandwagon."

Perry the Prevaricator Perry statements have received no fewer than seven "pants on fire" ratings from Politifact Texas; he earned those awards for repeated false statements about his policies and his political opponents. Of 67 Perry statements reviewed by Politifact, 14 were declared false in addition to the seven "pants on fire" lies -- while another 10 were rated "mostly false." Only 17 were considered true (10) or mostly true (7), with 19 called "half true."

Perry and the Republican Party

If Rick Perry does indeed become the Republican "unity candidate," that will be further evidence that the GOP has become the party of, by, and for the far right -- a party that has abandoned any credible claim to representing the economic interests or constitutional values embraced by most Americans.

PFAW

Rep. Issa's Public Sector Job and Private Sector Interests Overlap

Congress may be on summer vacation, but Rep. Darrell Issa, chairman of the House Oversight & Government reform committee, is still quite busy with his other job. In addition to heading one of the most powerful committees in Congress (which one might consider a full-time gig), Rep. Issa “moonlights” as an entrepreneur and investor. He is quite successful: Issa’s recently-disclosed net worth is closing in on $1 billion. Most employers don’t care what their workers do in their personal time, as long as it doesn’t interfere with their job responsibilities. However, in Issa’s case, there seems to be a fair amount of overlap – and this raises more than a few ethical questions.

Rep. Issa is well known for his willingness to bend over backwards to support corporate supporters. From writing letters to big corporations asking which pesky regulations they would most like to do away with to slamming the new Consumer Financial Protection Bureau for protecting ordinary people, Issa always looks out for the money-making interests of his most high-powered constituents. However, it appears that Issa is also using his government perch to stack the deck in favor of his personal private sector interests, such as securing federal earmarks for highway projects that have significantly increased the value of properties he owns. Here’s an excerpt are some details from a new report published over the weekend by the New York Times:

Even as he has built a reputation as a forceful Congressional advocate for business, Mr. Issa has bought up office buildings, split a holding company into separate multimillion-dollar businesses, started an insurance company, traded hundreds of millions of dollars in securities, invested in overseas funds, retained an interest in his auto-alarm company and built up a family foundation.

As his private wealth and public power have grown, so too has the overlap between his private and business lives, with at least some of the congressman’s government actions helping to make a rich man even richer and raising the potential for conflicts.

He has secured millions of dollars in Congressional earmarks for road work and public works projects that promise improved traffic and other benefits to the many commercial properties he owns here north of San Diego. In one case, more than $800,000 in earmarks he arranged will help widen a busy thoroughfare in front of a medical plaza he bought for $10.3 million.

His constituents cheer the prospect of easing traffic. At the same time, the value of the medical complex and other properties has soared, at least in part because of the government-sponsored road work.

But beyond specific actions that appear to have clearly benefited his businesses, Mr. Issa’s interests are so varied that some of the biggest issues making their way through Congress affect him in some way.

After the forced sale of Merrill Lynch in 2008, for instance, he publicly attacked the Treasury Department’s handling of the deal without mentioning that Merrill had handled hundreds of millions of dollars in investments for him and lent him many millions more.

PFAW

DHS, Congress, and President Obama: Stop separating our families!

There are an estimated 36,000 gay and lesbian binational couples in the United States. Because of the Defense of Marriage Act (DOMA) and other discriminatory federal policies, these Americans are unable to sponsor their foreign-born same-sex spouses.

Meet Frances Herbert and Takako Uedathey need your help! With Takako’s student visa set to expire, the threat of Takako’s deportation looms large for a couple who is legally married in Vermont and has known each other for over 30 years.

Anthony Makk and Bradford Wells are a couple in San Francisco who have been married for seven years. However, because their marriage is not recognized by the federal government, Wells, an Austrialian, faces deportation later this month.

Earlier this year, Rep. Jerrold Nadler and Sen. Patrick Leahy introduced the Uniting American Families Act (UAFA). It is a meaningful step toward providing equality to same-sex couples and keeping their families together. It would allow many same-sex partners to begin the immigration process more quickly, efficiently, and with fewer limitations. For many, it could very well be the only avenue available to keep their families together in the US.

Please join us in calling on President Obama and the Department of Homeland Security to keep couples like Frances and Takako and Anthony and Bradford together. Also, contact your senators and representative and urge them to cosponsor UAFA. All families deserve to stay together and have a chance at pursuing the American dream.

PFAW