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Scalia Slaps Down GOP’s Tentherism

By Ian Millhiser  

"Scalia Slaps Down GOP’s Tentherism"

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Yesterday, conservative Justice Antonin Scalia spoke to a gathering of mostly-Republican lawmakers about separation of powers under the Constitution. During that gathering, Scalia was asked to embrace one of the Tea Party’s pet constitutional theories — but his response did not go well for the far right:

“The question of earmarks came up, whether or not the constitutionality of earmarks would be considered constitutional [sic],” Bachmann told reporters after the seminar. [...]

It’s up to Congress how you want to appropriate, basically,” Scalia told the members, according to Rep. Louie Gohmert (R-TX). “He pointed out historically, like when Jefferson was president, [Congress] said here’s a big pot of money, you decide where it goes, and Jefferson ended up paying up a big hunk of it to the Barbary Pirates.”

“I think the fairest thing to say was he took it for granted they were constitutional,” said Rep. Jerrold Nadler (D-NY) — one of a small handful of Democrats in attendance. “I don’t think there was any question. I can’t see how you can make an argument that they’re not Constitutional — Congress is the appropriating body.”

Although Scalia was asked about earmarks, his answer is nothing less than a wholesale repudiation of the right’s tenther vision of the Constitution. After President Obama took office, right-wing lawmakers suddenly began claiming that the Constitution places strict limits on how Congress is allowed to allocate federal funds. Sen. Mike Lee (R-UT) claims that Social Security, Medicare and federal disaster relief are all unconstitutional. Sen. Tom Coburn (R-OK) believes Pell Grants, federal student loans and all other federal education programs are unconstitutional. And the GOP’s Pledge to America embraces tenther rhetoric — suggesting the entire party could agree with Lee and Coburn.

Yet, as Scalia indicates, tentherism is baseless. Because Article I of the Constitution gives Congress broad authority to “to pay the debts and provide for the common defense and general welfare of the United States,” Scalia is exactly right that it is almost entirely “up to Congress” to decide how it wants to appropriate.

Nevertheless, it is a sad commentary on the state of the modern GOP that ultra-conservative Justice Scalia has transformed into a voice of moderation against the even more radical Tea Party.

Update

The Wall Street Journal reports that Scalia had even more disappointing news for his Tea Party hosts:

“He said, ‘States rights? Fuhgeddaboudit!’” said freshman Rep. Joe Walsh (R., Ill.), a self-described “tea-party guy” who came to Washington “to storm the gates.”

Mr. Walsh mentioned a couple of other surprises, including Justice Scalia’s view that the line-item veto, desired by some conservatives, is unconstitutional.

Moreover, “stare decisis—he’s okay with that,” Mr. Walsh said, using the Latin term for following legal precedent. [...]

Freshman Rep. Steve Southerland (R., Fla.) asked about the constitutionality of the Obama administration’s so-called czars. Justice Scalia said the president is entitled to hire advisers, and if that’s what czars were, there was little problem, according to Mr. Nadler. But Justice Scalia declined to get into specifics, saying the issue could come before the court. Mr. Southerland said he felt the justice ducked the question.

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