This past weekend, Texas Governor Greg Abbott delivered the keynote address at the Texas Public Policy Foundation’s 14th annual Policy Orientation. He used that speech to roll out a raft of proposed constitutional amendments that would effectively shred our system of government.
Whoever coined the saying “everything is bigger in Texas” must have had things like Abbott’s announcement in mind. The TPPF, one of the most notoriously right-wing think tanks in the country, claimed Abbott’s speech was “expected to start a national conversation.” What it got was a list of nine proposed constitutional amendments that amount to a tea partier’s Shangri-La. Watch Abbott roll them out here.
The proposal, entitled “Restoring the Rule of Law,” would serve as the Texas plan for a proposed “convention of states” to amend the federal constitution. The title is a misnomer. It would not restore the rule of law; it would effectively shred it.
One proposed amendment would bar the federal government from regulating “activity that occurs wholly within one state.” According to Ian Millhiser of ThinkProgress, this would have the effect of setting this country back to the Gilded Age, when the Supreme Court prevented Congress from “addressing the newly nationalized economy.” Indeed, Abbott openly admits that commerce should only be interpreted to mean “‘trade’ or ‘exchange’ of goods,” rather than any activity that has anything to do with producing, consuming, or discarding the goods.
Incredible as it may seem now, Supreme Court decisions of that era held that the federal government had no power to regulate manufacturing, agriculture, mining, or other essential parts of our economy. One decision even barred Congress from enacting child labor laws–a scenario that seems unthinkable today. But if Abbott had his way, federal child labor laws and virtually every other federal workplace law would either be repealed or neutered.
However, workers wouldn’t be the only ones that would get squeezed by this plan. Millhiser writes that this proposal is far more expansive than any decision from the Gilded Age Supreme Court–so expansive, in fact, that “it’s difficult to count” the laws that would either shred outright or be severely watered down. For instance, laws against discrimination by restaurant owners would go in the shredder since “the actual act of serving food at such a restaurant” almost never crosses a state line.
Abbott wants to give the states the power to override any federal law, federal regulation, or Supreme Court decision with a two-thirds supermajority. This would have the effect of giving legal sanction to the utterly discredited legal theory of nullification–the idea that states could unilaterally declare that a federal law or court decision is unconstitutional. Even the Federalist Society thinks nullification is whackadoodle.
Another amendment would only allow the Supreme Court to overturn a “democratically enacted law” with a supermajority of seven justices. Abbott apparently forgets that a number of landmark Supreme Court decisions regarding the most basic protections of civil rights turned on 6-3 and 5-4 votes. Miranda v. Arizona, for instance, was a 5-4 decision. Cases that held that juveniles and the insane cannot be executed were both 6-3 decisions. Combined with the prospect that a 7-2, 8-1, or even a 9-0 decision could be overturned by the states, Abbott’s plan would effectively shred the Court’s power of judicial review.
Two other proposed amendments would bar “unelected bureaucrats” in federal administrative agencies from creating federal law or pre-empting state law. According to Millhiser, these proposals would all but cripple the Environmental Protection Agency and the federal Department of Labor, since Congress would no longer be able to delegate the power to iron out the details of the law. David Badash of the New Civil Rights Movement adds that this provision could potentially be used to derail a number of federal civil rights and equal protection laws.
All things considered, this proposal reads like a tea partier’s Shangri-La. The idea that a state governor even thinks this is a good idea, however, should send a chill down anyone’s spine.
