Justice

Carly Fiorina’s Utterly Bonkers Take On The Constitution

CREDIT: AP Photo/Mark J. Terrill

Republican presidential candidate, businesswoman Carly Fiorina speaks during the CNBC Republican presidential debate at the University of Colorado, Wednesday, Oct. 28, 2015, in Boulder, Colo. (AP Photo/Mark J. Terrill)

The minimum wage and Social Security are both unconstitutional, according to Republican presidential candidate Carly Fiorina — a view that puts her at odds with both longstanding precedents and the text of the Constitution.

Fiorina revealed her unusual understanding of the nation’s founding text during Wednesday night’s Republican presidential candidates’ debate. In response to a question on whether the federal government should help workers set up retirement plans, Fiorina offered two sweeping declarations about what the nation’s leaders can and cannot do. “There is no Constitutional role for the federal government in setting up retirement plans. There is no Constitutional role for the federal government to be setting minimum wages,” according to the former corporate CEO.

These statements thrust Fiorina deep into the fringe of the most radical candidates on Wednesday night’s stage, as few candidates even among this field are willing to admit to similar views about the Constitution. Sen. Rand Paul (R-KY), a libertarian who built his philosophy of government around the idea that governance typically is a bad thing, has called for the Supreme Court to repeal much of the modern regulatory state, but even he said during the debate that programs like Medicare and Social Security are legitimate tasks for the federal government to undertake. Former Arkansas Gov. Mike Huckabee has claimed that the federal Department of Education is unconstitutional, but he’s also likened lawmakers who want to cut Social Security benefits to robbers and muggers.

Fiorina’s two statements about the Constitution, moreover, suggest that she may hold other deeply radical views about the permissible scope of American government. Ms. Fiorina is not the first candidate to assert that the minimum wage is unconstitutional, for example, and those that have often claim that New Deal era Supreme Court decisions recognizing Congress’s power to set a minimum wage were wrongly decided — and that decisions in the decades leading up to the Great Depression that called for a more libertarian vision of federal power were correctly decided.

The vision of federal power that dominated this discarded libertarian era, however, swept much further than invalidating minimum wages. Among other things, that vision also invalidated the right to unionize and even child labor laws. So when Fiorina declares the minimum wage unconstitutional, she aligns herself with a constitutional tradition that would leave the most vulnerable workers helpless against rapacious employers.

Her statement that “there is no Constitutional role for the federal government in setting up retirement plans” has similarly broad implications.

Social Security, of course, is the most important federal retirement plan. Congress is permitted to set up retirement plans such as Social Security because the Constitution permits it “to lay and collect taxes” and to “provide for the . . . general welfare of the United States.” The same provisions of the Constitution permit a broad range of federal spending programs, from Medicare to Medicaid to federal education funds to highway funding. So if Fiorina believes that the federal government cannot create a national retirement program like Social Security, it is likely that she also believes that many of these other programs are unconstitutional as well.