Segregationist Virginia Senator Harry Byrd Sr.

In response to the landmark Affordable Care Act, numerous right-wing state lawmakers have introduced unconstitutional bills attempting to nullify this federal law. Earlier this week, however, the Virginia House of Delegates went even further, passing a sweeping nullification bill that directly conflicts with numerous Supreme Court decisions:

All goods produced or manufactured, whether commercially or privately, within the boundaries of the Commonwealth that are held, maintained, or retained within the boundaries of the Commonwealth shall not be deemed to have traveled in interstate commerce and shall not be subject to federal law, federal regulation, or the authority of the Congress of the United States under its constitutional power to regulate commerce.

It is all but certain that the Supreme Court will uphold the Affordable Care Act under its existing precedents, but this specific question has yet to reach the justices themselves. The Virginia House’s attempt to prevent the federal government from regulating locally produced goods, by contrast, is a direct assault on the judiciary. The Supreme Court has repeatedly held that Congress does not simply have the power to regulate commerce that crosses state lines, it also has the power to regulate wholly intrastate matters that “substantially affect interstate commerce.”

The Virginia Legislature has pulled this stunt before. In 1956, Virginia lawmakers objected to a different Supreme Court decision — Brown v. Board of Education. Rather than acknowledging that they are bound by the Constitution, however, these lawmakers instead enacted a “resolution of interposition” claiming that they were “duty bound” to defy the Supreme Court:

[W]e have watched with growing concern as the power delegated to the Congress to regulate commerce among the several States has been stretched into a power to control local enterprises remote from interstate commerce; we have witnessed with disquietude the advancing tendency to read into a power to lay taxes for the general welfare a power to confiscate the earnings of our people for purposes unrelated to the general welfare as we conceive it . . . .

Virginia can remain silent no longer. Recognizing, as this Assembly does, the prospect of incalculable harm to the public schools of this State and the disruption of the education of her children, Virginia is duty bound to interpose against these most serious consequences, and earnestly to challenge the usurped authority that would inflict them upon her citizens.

Sadly, the Virginia House is not alone in attempting to revive long discredited legal doctrines to advance its right-wing agenda. Sen. Mike Lee (R-UT) has suggested that child labor laws, FEMA, food stamps, the FDA, Medicaid, income assistance for the poor, and even Medicare and Social Security violate the Constitution. Sens. David Vitter (R-LA) and Rand Paul (R-KY) both believe that they can strip millions of U.S. citizens of their citizenship in violation of the Fourteenth Amendment. The right-wing lawsuits challenging the Affordable Care Act all ask the courts to “jettison nearly two centuries of settled constitutional law.”

Indeed, if the right had its way, it’s doubtful there would be much left of the Constitution.

Federal judges and justices are required by law to disclose their spouse’s income — thus preventing persons who wish to influence the judge or justice from funneling money to them through their husband or wife. Yet, as the Los Angeles Times reports, Justice Clarence Thomas has not complied with this requirement for years:

Supreme Court Justice Clarence Thomas failed to report his wife’s income from a conservative think tank on financial disclosure forms for at least five years, the watchdog group Common Cause said Friday.

Between 2003 and 2007, Virginia Thomas, a longtime conservative activist, earned $686,589 from the Heritage Foundation, according to a Common Cause review of the foundation’s IRS records. Thomas failed to note the income in his Supreme Court financial disclosure forms for those years, instead checking a box labeled “none” where “spousal noninvestment income” would be disclosed. [...]

Virginia Thomas also has been active in the group Liberty Central, an organization she founded to restore the “founding principles” of limited government and individual liberty.

In his 2009 disclosure, Justice Thomas also reported spousal income as “none.” Common Cause contends that Liberty Central paid Virginia Thomas an unknown salary that year.

This revelation that Justice Thomas failed to comply with his disclosure obligations comes as he is caught up in another ethics scandal regarding his participation in fundraisers for far-right political groups. Thomas once attended a gathering of wealthy corporate activists convened by billionaire Charles Koch to raise money for right-wing political causes, and he also attended at least one fundraiser hosted by the far-right think tank that used to employ his wife.

A Supreme Court justice lending a hand to a political fundraising event would be a clear violation of the Code of Conduct for United States Judges, if it wasn’t for the fact that the nine justices have exempted themselves from much of the ethical rules governing all other federal judges. Under the Code of Conduct, “a judge should not personally participate in fund-raising activities, solicit funds for any organization, or use or permit the use of the prestige of judicial office for that purpose,” except in certain very narrow circumstances that don’t apply to the Koch and Heritage fundraisers.

Nor is Thomas the only justice engaged in ethically questionable activities. Justice Antonin Scalia also attended one of Charles Koch’s right-wing fundraising and strategy sessions, and Justice Samuel Alito is a frequent speaker at fundraisers for groups such as the Intercollegiate Studies Institute — the corporate front that funded the rise of Republican dirty trickster James O’Keefe and that used to employ anti-masturbation activist Christine O’Donnell.

Worst of all, today’s revelation that Justice Thomas has been submitting incomplete financial disclosures suggests that the conservative justices’ engagement with corporate political advocacy could be much more widespread than previously believed. If the justices are not disclosing their activities, it’s anyone’s guess what they could be hiding.

The Supreme Court recently declined to hear a case claiming a federal ban on violent felons owning body armor violates the constitution, over the dissents of Justices Scalia and Thomas. Numerous commentators are now combing that dissent for hints on whether the justices will vote to uphold the landmark Affordable Care Act.

Predictions that the three conservatives who did not join this dissent will also reject the Affordable Care Act’s opponent’s claim that health reform exceeds congressional authority are probably premature. A decision not to hear a case is not a decision on the merits, and Roberts, Kennedy and Alito may have declined to join their fellow conservatives for all kinds of reasons unrelated to their views on congressional power. There is one passage in the Scalia/Thomas dissent, however which could have future implications:

The Ninth Circuit’s interpretation of Scarborough seems to permit Congress to regulate or ban possession of any item that has ever been offered for sale or crossed state lines. Congress arguably could outlaw “the theft of a Hershey kiss from a corner store in Youngstown, Ohio, by a neighborhood juvenile onthe basis that the candy once traveled . . . to the store from Hershey, Pennsylvania.” The Government actually conceded atoral argument in the Ninth Circuit that Congress could ban possession of french fries that have been offered for sale in interstate commerce.

Justice Thomas, who wrote this dissent, clearly thinks he has a zinger with this french fries line — but it’s not exactly clear why. Congress routinely prohibits possession of products that have been offered for sale in interstate commerce — cocaine and heroin are two examples. Significantly, Justice Scalia wrote a 2005 opinion insisting that a federal ban on the possession of all marijuana — not simply that which has traveled in interstate commerce — is constitutional. Constitutional lawyers — including myself — routinely site this opinion as evidence that Scalia would vote to uphold the Affordable Care Act.

So Scalia’s decision to join Thomas’ dissent is a bit odd, although not necessarily a sign that he is abandoning his previous views on Congress’ power to ban drugs or other things. Thomas’ body armor opinion merely argues that Congress cannot ban body armor under its power to regulate interstate commerce, while Scalia’s marijuana opinion claimed that Congress can use its commerce power and its somewhat broader Necessary and Proper power together to ban possession of an illegal substance.

Yet, while Congress’ power to ban heroin, marijuana or french fries is well established, it is likely that Thomas’ warning about a dystopian future where fried potatoes are banned will soon find its way into the parade of culinary horribles that conservatives warn of every time the Affordable Care Act gets brought up.

During Justice Kagan’s confirmation hearing, Sen. Tom Coburn (R-OK) falsely suggested that if Congress can require most Americans to carry insurance, it can also require everyone to eat their veggies.  He is wrong. Because the Affordable Care Act prohibits insurance companies from denying coverage to people with preexisting conditions, it must also ensure that nearly everyone carries insurance. If patients can wait until they get sick to buy insurance, they will drain all the money out of an insurance plan that they have not previously paid into, leaving nothing left for the rest of the plan’s consumers, and eventually collapsing the entire individual health insurance market.

By contrast, there is no risk that the national market for vegetables will collapse if Congress does not require people to purchase broccoli, so a “vegetable mandate” simply does not fit within Congress’ constitutional power to ensure that its economic regulations are effective in the same way that a requirement to carry insurance does.

Nevertheless, conservatives have had no trouble repeating Coburn’s wild fears about big government literally forcing broccoli down people’s throats, and it is probably only a matter of time before they become equally enraptured with Thomas’ fried fried fear mongering.

Sen. Ron Johnson (R-WI) has been in office for less than a week, but he’s already contributing to the right’s unprecedented campaign of obstruction against President Obama’s judicial nominees:

Newly elected GOP Sen. Ron Johnson said Friday he should have been consulted before the White House resubmitted the nominations of Louis Butler and Victoria Nourse for federal judgeships and is at this time opposed to their confirmation.

“My understanding of the standard procedure in the judicial nomination process is that the Administration extends the courtesy of consulting the home state Senators before nominating an individual to the courts. It’s unfortunate in this case that the voters of Wisconsin who expressed their wishes on November 2nd were completely ignored,” said Johnson in a statement. . . .

The nominations of Butler and Nourse were part of a wholesale move this week by the president to resubmit more than 40 judicial nominees that were pending in the Senate when the last session of Congress ended. In not consulting Johnson or other new senators, the White House was in effect treating the nominations as old business, not new business.

Johnson’s protest is an amazing display of chutzpah, since the only reason these nominees weren’t confirmed last year is because his fellow conservatives raised roadblock after pointless roadblock to keep dozens of judicial vacancies open. Moreover, even if Johnson were right that these two nominees are somehow new business, he is exaggerating the role of home state senators in a post-George W. Bush Senate.

During the Clinton Administration, former Senate Judiciary Chair Orrin Hatch (R-UT) gave just one senator an effective veto over nominees from their state. The Hatch Rule, however, appears to have been invented out of thin air for the Clinton presidency and evaporated the minute President Bush took office:

When Senator Edward Kennedy (D-MA) and then-Senator Joe Biden (D-DE) chaired the Judiciary Committee during the Reagan and Bush I Administrations, both allowed senators to block nominees from their home state–but only if both home state senators agreed to veto the nominee by failing to return a blue slip.  During the Clinton Administration, then-Chair Orrin Hatch (R-UT) changed the rules, allowing a single senator to unilaterally veto a nominee.  Segregationist Senator Jesse Helms (R-NC) used this authority to block every single one of Clinton’s nominees from North Carolina.

Yet when George W. Bush took office, Chairman Hatch decided to change the rules again.  During the Bush II era, nominees were moved forward despite objections from both of their home state senators.  So for our readers who are keeping track of this at home, the blue slip rules work something like this:

• When Reagan and Bush I were in office, both home state senators had to agree to block a nominee.
• When Clinton was in office, one senator could unilaterally veto a nominee.
• When Bush II was in office, everyone gets confirmed!

Ultimately, however, it is not up to Johnson and the other members of the Senate minority to decide whether to reinstate the Hatch Rule now that one lone senator has decided to throw a tantrum. Senate Judiciary hearings are scheduled by the Chair of the Judiciary Committee, not by the junior senator from Wisconsin.

Of course, should Judiciary Chair Pat Leahy (D-VT) decide to schedule hearings for Butler and Nourse, it is likely that Johnson and his fellow conservatives will use that as an excuse for their continued obstruction of President Obama’s nominees. But the unfortunate truth is that the right has no credibility to make such excuses. Thanks to their unprecedented obstruction campaign, nearly one in nine federal judgeships are currently vacant and Obama has the lowest confirmation rate of any modern president. There is simply no reason to doubt that this campaign will continue anyway, regardless of what Obama and Leahy do.

In 2005, when Republicans controlled the Senate, they released a memo claiming that a bare majority of senators have the power to change the Senate’s Rules:

One way that Senators can restore the Senate’s traditional understanding of its advice and consent responsibility is to employ the “constitutional option” — an exercise of a Senate majority’s power under the Constitution to define Senate practices and procedures. The constitutional option can be exercised in different ways, such as amending Senate Standing Rules or by creating precedents, but regardless of the variant, the purpose would be the same — to restore previous Senate practices in the face of unforeseen abuses. . . . This constitutional option is well grounded in the U.S. Constitution and in Senate history. The Senate has always had, and repeatedly has exercised, the constitutional power to change the Senate’s procedures through a majority vote.

Six years later, a broad coalition of senators is considering something very similar to what the GOP advocated in 2005 — amending the Senate’s rules with a simple majority vote. Now that the GOP is in the minority, however, they are humming a very different tune. In a memo entitled “Senate Democrats Threaten Unprecedented Power Grab,” the GOP now warns that “Unilaterally changing the rules of the Senate by a bare majority would be unprecedented . . . it would forever change the nature of the Senate and constitute a naked partisan power grab.”

Of course, the GOP’s 2011 attack on its 2005 position is far from surprising, since they fell back in love with the filibuster the minute they lost their majority. In 2007, when Republican Leader Mitch McConnell suddenly found himself leading the minority, the number of filibusters immediately spiked:

Audaciously, McConnell defends his obstructionist record by claiming it was all the Democrats fault. According to McConnell:

[Reformers] have peddled the well-worn myth that changes are needed as a way of overcoming partisanship on the part of Republicans. Their evidence: a historically high number of so-called cloture petitions by the Democratic majority to cut off debate. Republicans forced these petitions, Democrats say, by blocking or slow-walking bills.

What these critics routinely fail to mention (and too many reporters fail to report) is the precipitating action: the Democratic majority’s repeated use of a once-rare procedural gimmick that has kept Republicans from amending bills that are brought to the floor. This practice, known as “filling the amendment tree,” leads to a question that answers itself: Why would Republicans vote for action on a bill that, we’ve been promised, we’ll be blocked from contributing to in any way?

There are any number of reasons why McConnell could not possibly believe his own claim here, but the most obvious is the fact that McConnell’s caucus hasn’t simply wielded the filibuster to block legislation, but has also waged an unprecedented campaign of obstruction against President Obama’s nominees. Nominees cannot be amended, so if McConnell really just wanted his caucus to be able to offer amendments he wouldn’t have led a scorched earth campaign against the president’s nominations.

In the end, however, the biggest problem with McConnell’s obstructionist campaign is not hypocrisy — it is the fact that his tactics are slowly destroying the nation’s ability to function. Because of the right’s abuse of the Senate rules, countless judgeships and other essential jobs are unfilled — even though the overwhelming majority of Obama’s nominees to these jobs face little opposition even from the GOP. Meanwhile, numerous federal agencies are currently operating without congressional authorization because the Senate is unable to move authorization bills. The United States government still does not have a budget, because GOP obstructionism prevented the Senate from performing this most basic task.  And hundreds of bills that passed the House without any opposition whatsoever will never receive a vote in the Senate. McConnell wants to frame the debate over reform as a partisan showdown, but the whole nation is suffering because of his recalcitrance.