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.
