More than three-quarters of the Senate Republican caucus signed onto legislation introduced Wednesday by Sens. Tom Coburn (R-OK) and Rand Paul (R-KY) that could render it virtually impossible for Congress to enact any legislation intended to improve working conditions or otherwise regulate the workplace. Had their bill been in effect during the Twentieth Century, for example, there would likely be no nationwide minimum wage, no national ban on workplace discrimination, no national labor law and no overtime in most industries.
Like many Tea Party proposals to neuter the federal government, Coburn and Paul’s bill is marketed as an effort to bring America back in line with a long-ago discarded vision of the Constitution. It’s named the “Enumerated Powers Act of 2013,” a reference to the provisions of the Constitution outlining Congress’ specific powers, and it claims to require all federal legislation to “’contain a concise explanation of the specific authority in the Constitution’ that is the basis for its enactment.”
The key provision in this bill, however, would revive a discredited interpretation of the Constitution that America abandoned nearly eight decades ago. Although the text of the bill is not yet available online, a press release from Coburn’s office explains that it “[p]rohibits 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.’”
To translate this language a bit, in the late 19th Century, the Supreme Court embraced an unusually narrow interpretation of the Constitution’s provision enabling Congress to “regulate commerce . . . among the several states.” Under this narrow reading, which lasted less than half a century, the justices said that they would only permit federal laws that regulated the transport of goods for sale or a sale itself. Manufacturing, mining, production and agriculture were all held to be beyond federal regulation. This theory was the basis for several decisions striking down basic labor protections, including a 1918 decision declaring a child labor law unconstitutional.
Coburn and Paul’s bill appears to be an attempt to restore the constitutional regime that prohibited child labor regulation and other such nationwide regulation of the American workplace. While the bill does not apply retroactively — so existing labor laws would continue to function — the bill does allow a procedural objection to be raised against any new legislation that does not comply with the limits imposed by the bill. Such an objection could be used to block any most attempts to enact new workplace laws — such as a bill increasing the national minimum wage or a bill prohibiting all employers from firing workers because they are gay. Similarly, Coburn and Paul’s bill could permanently entrench decisions by the conservative Roberts Court rolling back existing protections for workers — such as a recent decision shielding many employers whose senior employees engage in sexual harassment.
Such an effort to shrink the constitutional role of government until it is small enough to be drowned in a bathtub is consistent with Paul and Coburn’s records. Last March, Paul praised a particularly infamous Supreme Court decision empowering employers to ruthlessly exploit their workers. Coburn told a town hall meeting in 2011 that Medicare and Medicaid are unconstitutional because “that’s a family responsibility, not a government responsibility.”
What is somewhat surprising, however, is the sheer breadth of support for Coburn and Paul’s discredited view of the Constitution within the Senate Republican Caucus. According to Coburn’s press release, their bill is cosponsored by “Senators Ayotte (R-NH), Barrasso (R-WY), Blunt (R-MO), Boozman (R-AR), Burr (R-NC), Chambliss (R-GA), Coats (R-IN), Corker (R-TN), Cornyn (R-TX), Crapo (R-ID), Cruz (R-TX), Enzi (R-WY), Fischer (R-NE), Flake (R-AZ), Graham (R-SC), Grassley (R-IA), Hatch (R-UT), Heller (R-NV), Inhofe (R-OK), Isakson (R-GA), Johnson (R-WI), Lee (R-UT), McCain (R-AZ), McConnell (R-KY), Moran (R-KS), Risch (R-ID), Roberts (R-KS), Rubio (R-FL), Scott (R-SC), Sessions (R-AL), Thune (R-SD), Toomey (R-PA), Vitter (R-LA), and Wicker (R-MS).”