A lot of attention has been paid to incoming Senator Rand Paul of Kentucky and his wacky views, but Senator Mike Lee of Utah is arguably just as insane. Consider this lecture he gave in Draper, Utah :
Congress decided it wanted to prohibit [child labor], so it passed a law—no more child labor. The Supreme Court heard a challenge to that and the Supreme Court decided a case in 1918 called Hammer v. Dagenhardt. In that case, the Supreme Court acknowledged something very interesting — that, as reprehensible as child labor is, and as much as it ought to be abandoned — that’s something that has to be done by state legislators, not by Members of Congress. […]
This may sound harsh, but it was designed to be that way. It was designed to be a little bit harsh. Not because we like harshness for the sake of harshness, but because we like a clean division of power, so that everybody understands whose job it is to regulate what.
Now, we got rid of child labor, notwithstanding this case. So the entire world did not implode as a result of that ruling.
As Ian Millhiser explains at Think Progress, child labor wasn’t effectively regulated until Congress passed the Fair Labor Standards Act of 1938, which was upheld in the 1941 case United States v. Darby. The Darby case overturned the Hammer v. Dagenhardt case that Sen. Lee referenced in his lecture. Lee didn’t limit himself to the view that the federal government has no jurisdiction over child labor laws.
Child labor laws are also only one of many essential protections that would evaporate in Mike Lee’s America. The same legal theory Lee uses to impugn child labor laws applies equally to the federal minimum wage and the ban on whites-only lunch counters. And Lee doesn’t even stop there. In a subsequent section of the lecture, Lee attacks President Franklin Roosevelt for calling for the federal government to provide “a decent retirement plan” and “health care” because “the Constitution doesn’t give Congress any of those powers.”
If you’ve ever watched a confirmation hearing for a federal judge, you’ve probably heard the term stare decisis thrown around a lot. Here’s how the Cornell University Law School defines it.
Latin for “to stand by things decided.” Stare decisis is essentially the doctrine of precedent. Courts cite to stare decisis when an issue has been previously brought to the court and a ruling already issued. Generally, courts will adhere to the previous ruling, though this is not universally true.
Now, obviously, nothing much would ever change with the law if the courts never revisited and overturned previous rulings. But, in general, courts respect prior rulings and use precedent to decide cases. In the example of child labor laws, we have sixty-nine years of precedent that establishes the federal government’s power to regulate. Mike Lee acts like those sixty-nine years simply did not exist, and he certainly believes that they should not have any weight. While it appears that Clarence Thomas shares these views, no other members of the High Court seem to share it.
Now, I am not concerned that Rand Paul, Mike Lee, and Clarence Thomas’s bizarre views of the Constitution will take hold any time soon, I am concerned that Lee and Paul will use their powers as senators to gum up the works of the Senate by objecting to anything that they consider unconstitutional. And that would include not just child labor and civil rights laws, but laws on the minimum wage, education spending, gender discrimination, and Social Security and Medicare.
That’s why we need filibuster reform. And when I talk about filibuster reform, I’m not just talking about the 60 vote requirement to do anything in the Senate. We need to eliminate some of the automatic delays such as excessive post-cloture time and the need for to achieve cloture three separate times to get a single bill passed. We should also further reform the post-cloture filibuster, which is a practice where the minority files hundreds of amendments, each demanding debate time. Basically, we need a Senate that can function despite having loons like Lee and Paul who think the Senate has no jurisdiction to do much of anything at all.
Great post. Although I think its worth pointing out that the most dysfunctional institution in American politics today is not the US Senate or the Electoral College- its the Republican party. The nominating process for GOP leaders and the incentive structure for its leaders is what’s creating so much problems in American politics and preventing us from addressing the problems we need to address. The GOP no longer feels bound by the formal rules or informal norms of our political institutions- and that means the Democratic party is always trying to shore up the norms that the GOP is violating. In a sense, the GOP is already winning by forcing dems to spend so much political capital reforming the Senate- we already know the “compromise” the GOP will reach on this- water down the reforms and do so in a way that the dems can’t get any political benefits from the reform.
Rather, much of the institutional crises that most of us see would be solved if the GOP stopped acting like jacka#ses. Our political institutions require compromise and consensus- if one political party rejects that premise than you have bigger problems than just the arcane rules of our house of lords. You have the House abusing its budgetary powers to shut down the govt, abusing its impeachment powers to impeach a president over lying about sex; you have a supreme court discarding its political independence to issue a partisan decision to decide an election; and of course you have today a Senate minority that refuses to allow that institution to conduct business. Tomorrow the GOP will find some other norm or rule to abuse to its advantage- they’re nihlists in that sense.
To me fixing the filibuster is like plugging one whole in a dam, while knowing full well that another leak will spring up soon enough. It would take another constitutional convention to realign our political institutions with the evolution of the GOP as a parliamentary party. Either the GOP gets back to accepting the need for compromise (a word Boehner refused to say in a TV interview) and consensus, or our government will continue to ignore the pressing problems of the day.
We have only indirect control over what the Republicans do. All we can do to influence them is to beat them in elections. And even that doesn’t seem to make them behave any better. Quite the opposite, actually.
True. But we have options about how we engage with them and how we deal with them tactically and strategically, both in electoral competitions and governing. I certainly don’t have answers so this isn’t a critique of our party leaders. And I’m a huge proponent of institutional reform, so any and all efforts in those directions are going to get a huge thumbs up from me. But I think a lot of liberals are sort of resigning to themselves that the GOP isn’t the problem, it’s the institutions themselves, and the GOP is just behaving rationally. That’s not quite right and ignores the fact that things like absurdly high numbers of cloture votes, impeachments for lying about sex, and a supreme court issuing a partisan decision to decide an election are very unique moments in history, and all coincide with the evolution of the GOP into a parliamentary party. So yes, filibuster reform, and a thousand other institutional reforms, big and small, would be awesome. But there’s always a loophole in the rules and there’s always some informal norm that can be violated if you have no shame, whether we’re talking politics, banking or sports. If the GOP starts behaving again like a presidentialist-style party, than a lot of these problems go away. I think its important to keep that in mind.
The Republican party is not dysfunctional at all — it operates exactly as intended and with great efficiency, to protect the wealth and perquisites of the ruling class.
I would add that , to a considerable degree, this is also the role of the Senate.
Its always been the party for big business and the creditor class…and yet it hasn’t always operated like this. Why weren’t there hundreds of cloture votes during FDR, JFK or LBJ’s presidency? Why didn’t a Republican house impeach a democratic president for something insignficant before? Why has it taken them so long to get good at exploiting the veto points in our political institutions? I suppose the answer is its just taken awhile for the GOP to organize itself as a parliamentary party since the dawn of the southern strategy.
Your last sentence is basically the answer. The GOP used to be mainly Northern business interests mixed with African-American voters. It was a mix of liberals and conservatives. The Democrats were a mix of Northern labor interests mixed with white Southern voters – another mix of liberals and conservatives. You didn’t get this kind of crap because, well, the ideologies of the parties was mixed up enough that you couldn’t pull this kind of crap. Even Strom Thurmond’s famous filibuster against the Civil Rights Act wasn’t the kind of filibuster we have today – he just took the floor and jabbered to prevent a cloture vote from occurring at all because there was already a deal in place that was going to let it pass cloture and a final vote.
Now the GOP has become an ideologically pure party, and the consequence of that is that they have the power to muck the system up a lot. I believe that it’s the first time in the history of the country were a purely ideological party has reached that kind of level of power. The Republicans of Lincoln’s day were ideological against slavery as a single-issue party, but they were STILL a coalition of conservative business interests and liberal activists back then. The mix of conservative business interests and conservative activists we have today is, I think, unprecedented (and has never been matched on the left – we’ve never had a major political party that was made up purely of liberal interests in this country the way the modern GOP is so purely conservative.)
Totally agree with that. But a shorter term way out for this is to figure out why McConnel can control the procedural votes of his caucus and why we can’t. This isn’t necessarily about ideology- all of the policies put in place in the last congress really do seem as if they were written in a way that Snowe and Collins would be cool with. I think this is more about politics than policy or ideology. Becoming a parliamentary party was an evolution designed in order to gain power first, and then enact the policies you want with those policies.
Its worth mentioning that we used to have a media that was attuned to these sorts of things. And putting party above country was one of the greater sins. And yet the GOP did it with impunity.
Senate rules should be reformed to make obstruction more difficult, but this is not the time to do it. The time to make this happen is either January, 2009 after a time machine is invented, or the next time Democrats have large majorities in both houses along with the presidency – say, in a century or so if the Republic survives as such.
The fact is, if this is a bipartisan reform effort or has Democrats in the lead now, it will only benefit the Republicans. No legislation worth worrying about is going to get out of the House only to be stopped by the Senate in the next two years, and beginning in January, 2013, the Senate will be dominated by the Republicans. Let them be seen to change these rules for their own benefit. The story won’t matter much – process stories never do – but at least we won’t have abetted the disgusting legislation which will be enabled by reform.
If the Republicans take back the majority, do you think they’ll stand by and allow the Democrats to obstruct?
I think it depends on who’s in the GOP caucus. They’ve shown the power they have with 40 unified senators. If they add more moderates in 2012 (not holding my breath but who knows) than the internal dynamics of their caucus might prevent them from steamrolling over the dems. As a corollary to my point above, one of the reasons the GOP was able to be so assertive with their minority rights in the senate for the last 2 years is the fact that our caucus was so less disciplined- we had anywhere from 5-10 conservative members of our caucus who didn’t want to do anything unless the GOP was OK with it (they called this “bipartisanship”, I call it “a preference for conservative policies”). This increases the power of the minority significantly, emboldening them to filibuster, put up holds, etc. Again, fix the filibuster all you want, but its important for our party leaders to also find ways to control the procedural votes of the conservatives in our caucus to the same extent that McConnel controls the procedural votes of his moderates.
It doesn’t matter. Obstruction in the Senate is not going to do us any additional harm between now and at least January, 2015. The Republicans may or may not weaken obstruction, but we shouldn’t help make it a bipartisan reform. From a good government point of view, Senate rules reform would be a good thing. From a political point of view, it would probably be a disaster. Let’s try to play to win at least sometimes.
Does it matter what we think about filibuster reform? BTW, is it still January 5, 2011 in the Senate?
Relative to child labor, the current law allow parents the freedom to exploit the little buggers as much as they want (until Child Protective Services shows up at the door).
And then there is one of the minor unintended effects of the child labor law. Most kids no longer know what various occupations actually do, most especially those hidden behind walls of corporate security. Children working next to their parents in the textile mills and as farm labor didn’t have that problem.
But these specious arguments are showboating conservative politicians trying to create a brand for themselves. The ultimate trump will be the yokel who advocates repeal of all of the amendments so as to return the Constitution to what the Founders originally designed. It’s no different than the battle of literalists in interpreting the Bible. It’s searching for an entrepreneurial niche.
“Does it matter what we think about filibuster reform? BTW, is it still January 5, 2011 in the Senate?”
“The fight to reform Senate rules will continue as long as the first legislative day of the 112th Senate remains open. How long will that be? Well, as long the Senate goes into recess at the end of every calendar day it’s in session, rather than adjourning, the first legislative day will continue. As such, the rules reform fight could go on indefinitely.
In the interim, Democrats are negotiating with themselves, and with Republicans, in an attempt to achieve consensus on a rules reform package.” – Chris Bowers at Kos
In 2001, shortly after 9/11, I saw what was happening and predicted that not only would the US soon engage in routine torture, but that within a few years advocating torture would be a mainstream policy position. Everyone thought I was crazy.
In 2010, watching the Tea Party, I predicted that within a few years child labor laws would be compromised and that advocating the abolishment of all child labor laws would soon become a mainstream policy position. A lot of people thought I was crazy.