Too inexperienced to be president

“I was speaking with one of these business owners who owns a couple of restaurants in town,” Romney said. “And he said ‘You know I’d like to change the Constitution, I’m not sure I can do it,’ he said. ‘I’d like to have a provision in the Constitution that in addition to the age of the president and the citizenship of the president and the birthplace of the president being set by the Constitution, I’d like it also to say that the president has to spend at least three years working in business before he could become president of the United States.‘”

Romney continued: “You see then he or she would understand that the policies they’re putting in place have to encourage small business, make it easier for business to grow.

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Romney’s amendment would come as quite a shock to the last person to earn the Republican Party’s presidential nomination. Sen. John McCain (R-AZ) graduated from the Naval Academy in 1958 and served more than two decades in the United States Navy, including more than five years as an prisoner of war. After retiring from the Navy at the rank of captain, McCain turned to politics and was elected to the House in 1983 and to the Senate in 1987. Because McCain devoted his life to serving his country, rather than to working in business, the Romney amendment would disqualify him from the White House.

President Dwight D. Eisenhower would likely suffer a similar fate. Like McCain, Eisenhower was a career officer before entering politics, graduating from West Point in 1915 and eventually commanding the Allied victory over Nazi Germany. It’s not clear whether Romney’s amendment would count the time Eisenhower spent as President of Columbia University as “working in business,” and Eisenhower did work two years supervising the night shift at a creamery before entering college. Unless Romney would allow Eisenhower to count his time in academia as business experience, however, Eisenhower lacked the three years required to become president under the Romney amendment. Saving human civilization from Adolf Hitler is not a sufficient qualification.

President Theodore Roosevelt also could not have been president under the Romney amendment. Roosevelt graduated from Harvard college in 1880 and entered Columbia Law School, but eventually dropped out to mount a successful bid for the state legislature. After serving two terms, he left New York to grieve the deaths of his wife and mother and worked as a law enforcement officer in the Dakota Territory. After two years in exile he returned to New York to continue a sweeping career that would include an unsuccessful bid for New York City mayor, two years as head of the city’s police commission, an appointment as Assistant Secretary of the Navy, service in the United States Army as a cavalry colonel, a successful election as governor of New York and brief service as Vice President of the United States. Roosevelt was also a prolific author and historian who wrote a history of the role of the burgeoning U.S. Navy in the War of 1812 that is still studied by scholars today. None of these experiences, however, are work in business, so Roosevelt does not appear to be qualified for the presidency under the Romney amendment.

Republican icon Ronald Reagan is a borderline case. Reagan worked as a radio announcer, an actor and as the president of a trade union before entering politics. Reagan spent eight years working for General Electric, but as host of GE’s television show General Electric Theater. It’s not clear whether this qualifies as business experience under Romney’s amendment, and it certainly does not qualify as “small business” experience.

One person who almost certainly would qualify for the presidency under the Romney amendment: Barack Obama. President Obama spent twelve years as an attorney with a small private law firm, in addition to spending two summers working for corporate law firms as a law student.

This is a very interesting question, and I haven’t jumped up and down and taken a firm position on it. I think in general, my, I have a very serious concern about erosion of states rights. Very serious concern of that, and this, reversing this decision might pull that balance back. I am, as I’ve mentioned, a strong conservative, I don’t think the federal government should be doing a whole lot of things that it’s doing and it well may be that a repeal of the 17th Amendment might tend to pull that back but I haven’t written any thesis on it or anything like that.

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A repeal of the 17th Amendment would make America fundamentally less democratic, and calling for the repeal shows a distrust of the American people. Moreover, the Amendment wasn’t enacted as some sort of federal power grab, as Akin suggests. Rather the call for the Amendment was driven largely by state legislatures and only one state, Utah, voted against it.

The 17th Amendment was adopted in no small part because state legislatures were caught selling seats or were unable to fill them because of electoral deadlocks. And in case Akin doesn’t think corruption or incompetence would be a problem for today’s state lawmakers, he need only look at Rod Blagojevich or the failures of a variety of state legislatures to disabuse himself of that notion. Reformers who called for the 17th Amendment believed that it would clean up corruption and give power to the people. Akin apparently believes that power may be safer in the hands of state governments than the people.

Akin isn’t the only Republican candidate who has called for the repeal of the 17th Amendment. Other major Republicans have also come out against the 17th Amendment, including Texas Gov. Rick Perry, Sen. Mike Lee (R-UT), and Justice Antonin Scalia.

Nevertheless, Akin’s main Republican rivals distanced themselves from him on the 17th Amendment. State Treasurer Sarah Steelman said she is favor of direct election of senators and implied that she worries about the kind of interests that would have influence if the state legislature chose Senators. Similarly, businessman John Brunner is also in favor of direct election of senators and said he is “highly sympathetic to the whole concept of the 17th Amendment, and doing everything we can to bring the power back to the people.”

–Alex Brown

Douglas Holtz-Eakin

Douglas Holtz-Eakin is one of the Republican Party’s top economic pundits. He served as a top advisor to Sen. John McCain’s (R-AZ) 2008 presidential campaign. He organized an amicus brief which the Eleventh Circuit relied on heavily in its decision striking down the Affordable Care Act, despite the fact that his brief is riddled with factual errors and miscalculations. And he is one of the nation’s top evangelists for the idea that we can solve our economic woes simply by saving rich people from the crushing burden of having to pay their fair share of taxes.

Before Holtz-Eakin began his second career as a salesman for Republican economic policy, however, he actually was a serious economist. In 2004, Holtz-Eakin served as Director of the Congressional Budget Office, and he was asked to analyse the impact on the federal budget of eliminating the unconstitutional Defense of Marriage Act (DOMA) and extending marriage equality throughout the nation. According to the top Republican economist, opposition to marriage equality cannot be squared with the GOP’s supposed devotion to deficit reduction, as marriage equality slightly reduces the deficit:

The potential effects on the federal budget of recognizing same-sex marriages are numerous. Marriage can affect a person’s eligibility for federal benefits such as Social Security. Married couples may incur higher or lower federal tax liabilities than they would as single individuals. In all, the General Accounting Office has counted 1,138 statutory provisions—ranging from the obvious cases just mentioned to the obscure (landowners’ eligibility to negotiate a surface-mine lease with the Secretary of Labor)—in which marital status is a factor in determining or receiving “benefits, rights, and privileges.” In some cases, recognizing same-sex marriages would increase outlays and revenues; in other cases, it would have the opposite effect. The Congressional Budget Office (CBO) estimates that on net, those impacts would improve the budget’s bottom line to a small extent: by less than $1 billion in each of the next 10 years (CBO’s usual estimating period). That result assumes that same-sex marriages are legalized in all 50 states and recognized by the federal government.

According to last night’s federal court decision holding DOMA unconstitutional, Holtz-Eakin’s economic analysis is not simply an interesting historic artifact — it’s also a body blow to the forces trying to protect anti-gay discrimination from the Constitution. In defending the law, anti-gay Members of Congress proposed four reasons why they believed excluding gay couples from their constitutional right to marry is somehow justified, among them a claim that DOMA “is justified as an enactment designed to conserve scarce government resources.” Holtz-Eakin’s analysis refutes this claim, and the district court relied upon it in explaining why DOMA must go down.

In many ways, the resurrection of Holtz-Eakin’s days as a non-partisan economist is a metaphor for why conservative efforts to cling to anti-gay discrimination are doomed to failure. The most intriguing line in yesterday’s opinion is when it characterizes DOMA as an attempt to “establish[] an across-the-board federal definition of marriage limiting it to heterosexual couples, and preempting any opportunity to test the impact of state laws evolving to recognize same-sex marriage.” When marriage equality was nothing more than an idea, conservatives could scare the nation with warnings that gay couples would recruit your children, raise your taxes and destroy your marriage. Now it is a reality in many states — even if the federal government still needs to extend benefits to these couples — and the parade of horribles that anti-gay groups predicted never made it out the gate.

Holtz-Eakin’s memo demonstrates, however, that anti-gay discrimination was doomed even before America got its first taste of marriage equality. Reality leaks through, even if Congress does everything in its power to keep it away.

QUESTION: Currently, 16 states plus the District of Columbia have made the medical use of marijuana legal. In some of these states, individuals have been authorized to cultivate and sell medical marijuana under tightly regulated conditions. However, medical marijuana use remains illegal under federal law, even in states that have passed laws or ballot measures that allow it for medical treatment.

Do you feel President Obama should: (ORDER ROTATED)

- Respect the medical marijuana laws in these states, or

- Use federal resources to arrest and prosecute individuals who are acting in compliance with state medical marijuana laws? . . .

RESPECT STATE LAWS 74% . . .
PROSECUTE FED LAW 15% . . .
NOT SURE 11% . . .

To be fair, much of the language in this poll question is highly suggestive — the phrase “tightly regulated conditions,” for example, implies that marijuana use will still be closely guarded even in states with relatively permissive laws — so it is likely that the poll would not have achieved such a dramatic contrast if it had used less loaded language. Nevertheless, the poll is consistent with other polls showing increased support for liberalization of marijuana policy, including a recent Gallup poll showing majority support for outright legalization.

The poll also highlights the very real political danger facing progressive lawmakers if they continue to support a marijuana policy that is both overreaching and unpopular. Regardless of how they poll, there is simply no question that federal marijuana laws are constitutional. The Constitution gives Congress the power to “regulate commerce . . . among the several states,” and this includes the power to ban a substance from commerce entirely. Moreover, states simply do not have the power to nullify federal laws that they do not wish their citizens to be required to follow.

Nevertheless, many tenther activists who believe that everything from Social Security to Medicare to national child labor laws violate the Constitution are aggressively trying to entice young people into their movement by highlighting the fact that their misreading of the Constitution would also lead to federal marijuana laws being declared unconstitutional — or, at least, significantly rolled back. Progressive lawmakers can ill-afford to cede a generation of young voters to an extremist movement simply because they would rather cling to policies the country neither wants nor benefits from.

During last year’s debt ceiling crisis, which Speaker John Boehner has threatened to repeat next year, House and Senate Republicans threatened to force the United States to default on its debt — an outcome that would have caused “a bigger GDP drop than that experienced during the Great Recession of 2008″ — unless President Obama agreed to an increasingly escalating series of demands for austerity. Even after this campaign of extortion forced the White House to make significant concessions, Fischer indicated that she would have simply let the economy blow up because Congress didn’t also agree to a constitutional amendment:

Nebraska’s 2012 Republican Senate candidates turned thumbs down Monday on the compromise debt reduction plan agreed to by the White House and congressional leaders.

“I would vote no on this specific bill because Congress needs to pass a balanced budget (constitutional) amendment first,” said state Sen. Deb Fischer of Valentine.

It’s not clear which version of the balanced budget amendment Fischer is referring to here, but even the mildest forms of such an amendment are terrible ideas because they prevent the United States from responding to economic downturns or unexpected disasters, while simultaneously turning control of the nation’s budget over to unelected judges who are ill-equipped to handle it.

Moreover, at the time that Fischer endorsed blowing up the economy unless Congress votes to change the Constitution, the leading Republican proposal for such an amendment imposed such draconian spending cuts that it would “throw about 15 million more people out of work, double the unemployment rate from 9 percent to approximately 18 percent, and cause the economy to shrink by about 17 percent instead of growing by an expected 2 percent.” The lead sponsor of this plan to trigger a new Great Depression, Sen. Mike Lee (R-UT), also called for forcing a debt default unless Congress gives him everything he wants.

In other words, while little is known about the obscure state lawmaker who wants to join the United States Senate, her willingness to play chicken with America’s prosperity strongly suggests that she would line up with the most hardline members of the Republican caucus.

Rep. John Lewis (D-GA)

In the end, the Constitution proscribed six instances in which Congress would require more than a majority vote: impeaching the president, expelling members, overriding a presidential veto of a bill or order, ratifying treaties and amending the Constitution. . . . “The Framers were aware of the established rule of construction, expressio unius est exclusio alterius, and that by adopting these six exceptions to the principle of majority rule, they were excluding other exceptions.” By contrast, in the Bill of Rights, the Founders were careful to state that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

As a textual matter, this is a strong constitutional argument. Yet it is likely not to get off the ground because of something known as the “political question doctrine.” As the Supreme Court explained in Baker v. Carr, federal courts generally should avoid deciding questions where there is a “textually demonstrable constitutional commitment of the issue to a coordinate political department” — meaning that the Constitution’s text suggests that an issue should be decided by the executive or legislative branch and not by the judiciary. Because the Constitution provides that “[e]ach House may determine the Rules of its Proceedings,” the courts are likely — although not entirely certain — to dismiss this case because the Constitution reserves questions of Senate procedure to the Senate itself.

In other words, this lawsuit is likely to highlight why it is so important for the Senate itself to reform the filibuster to prevent the minority from shutting down America’s ability to effectively govern itself. And the Senate will have an opportunity to do so in about seven months. Once every two years, when the newly elected senators are sworn in, a brief window opens up when the Senate can reform its rules with only 51 votes.

You know the issue of the 17th amendment is so troubling to me, our founding fathers, again those geniuses, made the point that the House of Representatives was there to represent the people. The Senate was there to represent the states. In other words the government of the states. . . . You know I think most senators if they had to come back every two years and by the way that would solve another problem. It would solve the idea that Senators move out of their state and never return. But it would cause those senators to have much greater contact with their states. You know just think of this. In today’s you see millions and millions of dollars spent on Senate campaigns. Two years ago, in 2010, Sharon Angle out in Nevada spent 31 million dollars, just herself. How much money would be spent in federal senate races if the state legislators were electing those people. You just took the money out of politics. Is that a bad thing?

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Mourdock is certainly right that eliminating U.S. Senate elections would end the practice of corporations and wealthy individuals throwing millions of dollars to change the result of those elections. Indeed, under Mourdock’s logic there’s no reason to stop there. If we simply named someone the hereditary monarch of the United States — King Mitt I — then no one would ever spend money to influence an American election again!

Mourdock is dead wrong, however, to suggest that ending Senate elections would eliminate corruption. Rather, one of the primary forces driving the Seventeenth Amendment’s ratification was the fact that the old system led to a kind of Citizens United on steroids:

[T]he system led to rampant and blatant corruption, letting corporations and other moneyed interests effectively buy U.S. Senators, and tied state legislatures up in numerous, lengthy deadlocks over whom to send to Washington, leaving those bodies with far less time to devote to the job of enacting the laws their states needed for the welfare of the people.

Sadly, Mourdock is not the first major Republican to say that the American people should not be allowed to elect their own senators. Texas Gov. Rick Perry believes this, as does Sen. Mike Lee (R-UT) and Justice Antonin Scalia.

Judge J. Harvie Wilkinson

At a recent gathering of one of the nation’s leading conservative lawyers’ groups, Judge Wilkinson offered a similar warning — telling the gathered group of conservatives to back off efforts to constitutionalize Tea Party ideology:

And last month, receiving the Federalist Society’s Lifetime Service Award at Georgetown University, Judge Wilkinson hinted that the high court he nearly joined should think twice before striking down the symbol of everything contemporary conservatives revile—the health care overhaul President Barack Obama signed into law over near-unanimous Republican opposition.

“It may of course seem tempting to press the advantage when one seemingly has a judicial majority at hand. But this wheel shall turn,” Judge Wilkinson said. “Lasting credibility on an issue such as judicial restraint requires us to practice it, as the old saying goes, when the shoe pinches as well as when it comforts.” . . .

“It is also one thing to welcome the Tea Party as a political movement, quite another to embrace a Tea Party Constitution. Political disputation and constitutional debate are simply different things, and it does our democracy no favors to confuse one with the other.”

Wilkinson deserves a lot of credit for standing up for democracy at a time when his fellow conservatives have largely abandoned it in favor of what the judge describes as an effort to “press one’s views into our fundamental charter such that our opponents are left with no quarter and are defeated not in the temporary sense of a political ebb and flow, but in the more absolute tones of constitutional condemnation.”

Moreover, there should be no doubt that Tea Party constitutionalists are calling for a sweeping attack on American democracy. As a Center For American Progress report explained last September, a short list of laws that leading Tea Party lawmakers claim are unconstitutional includes Social Security and Medicare, Medicaid, children’s health insurance, and other health care programs, all federal education programs, all federal antipoverty programs, federal disaster relief, federal food safety inspections and other food safety programs, national child labor laws, the minimum wage, overtime, and other federal labor protections and many federal civil rights laws.

GOWDY: When you say you balance things, can you understand why I might be seeking a constitutional balancing instead of any other kind?

SEBELIUS: I do, sir, and I defer to our lawyers to give me good advice on the Constitution. I do not pretend to be a constitutional lawyer.

GOWDY: Is there a legal memo that you relied on?

SEBELIUS: I relied on discussions.

GOWDY: At least when Attorney General Holder made his recess appointments, there was a legal memo that he relied on. Is there one you can share with us?

SEBELIUS: Attorney General Holder clearly runs the Justice Department and lives in a world of legal memos.

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Gowdy, who, among other things, appears confused about which executive branch official has the power to make recess appointments, seems quite proud of the fact that he made Sebelius admit that she never received a written document explaining why the Constitution permits regulations ensuring that working women will be able to access birth control — and that she instead relied on oral conversations with attorneys. There’s a very good reason why Sebelius would not need such a memo, however. The primary conservative argument against contraceptive access — that allowing it somehow violates the constitutional rights of religious groups who object to contraception — is completely meritless and hardly requires a lengthy memo. I recently dismissed it in just two paragraphs, for example:

There is nothing in the Constitution saying that a person does not have to comply with the law simply because they object to it — if this were actually true, anyone could immunize themselves from paying taxes simply by claiming a moral objection to doing so. Nor does the Constitution allow people to violate the law simply because they have a religious objection to it.

The seminal Supreme Court opinion establishing this point was written by conservative Justice Antonin Scalia — who, coincidentally, is Catholic. Scalia explains that “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’” In other words, so long as a law does not single out Catholics (or any other faith) for inferior treatment, the law applies universally to everyone.

It would be a tremendous waste of limited resources to have the government employ armies of lawyers whose job is to anticipate every false legal argument that might be thrown against a new regulation and draft memos explaining why those false theories shouldn’t prevent the regulation from being implemented. Perhaps Mr. Gowdy thinks it would be a good use of the American people’s taxes to create such a stimulus program for government lawyers, but there are much better ways for America to spent its money.

On a more serious note, however, there is something very ominous about Gowdy’s exchange with Sebelius. The Constitutional case against contraceptive access is meritless, and any competent lawyer would tell Sebelius as much in just a few sentences. The same, however, can also be said about the case against the Affordable Care Act. If the Supreme Court strikes down health reform, it will send a clear message to every judge in the country that the law does not apply any more — at least when enough conservative officials object to the law.

In other words, Sebelius may need to hire an army of rabidly conservative lawyers just to tell her which frivolous legal arguments she must heed regardless of the fact that they have no basis in the Constitution.

Failed Supreme Court Nominee Robert Bork

Personally, I would be looking for those people who, as Judge Bork used to say, originalists or strict constructionists. . . . I certainly think the standard ought to be, and it’s one that I make no, ah, message about trying to hide. I think people ought to be looking for those who would serve on the courts who are going to strictly interpret the United States Constitution. . . .

I mean, what the Democrats did in obstructing appointments like Judge Bork back in the 1980s, I didn’t like that, but they certainly had the right to do it. Because they felt their elections had consequences. Well, as one member of the United States Senate, I certainly carry, or will carry that same ideology.

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Mourdock’s position is so extreme that even conservative Justice Antonin Scalia rejects it. “Strict constructionism” refers to the philosophy that the Constitution’s words must be interpreted as narrowly as possible, regardless of whether that is the most natural reading of the text. In a seminal essay on the proper role of judges in a society, Scalia quite correctly called Mourdock’s method of reading the Constitution a “degraded form of textualism.” As Scalia warned, “[a] text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.”

To get a sense of what America would look like under Mourdock’s degraded constitution, one need not look any further than Robert Bork, the man Mourdock twice held up a as a model nominee. Bork once described the federal ban on employment discrimination and whites-only lunch counters as “unsurpassed ugliness.” He called it “utterly specious” to suggest that women have a constitutional right to use contraception. He believes that the Constitution does not protect women from gender discrimination — and he reiterated this view as recently as last October, when he said it was “silly” to think that women are discriminated against.

So Mourdock’s model judge would transform the Constitution into a miserly document that strips women and millions of other Americans of their most basic rights to receive equal work for equal pay and to make their own decisions about birth control and their own bodies, and Mourdock is, sadly, not alone. Likely GOP presidential nominee Mitt Romney shares Mourdock’s affinity for Robert Bork. Indeed, Romney even named Bork as the co-chair of his “Judicial Advisory Committee.”

Failed Supreme Court Nominee Robert Bork

Mitt Romney, however, apparently finds this kind of outlook quite appealing, because he selected Bork to co-chair his “Justice Advisory Committee.” At a recent campaign event, Vice President Biden went after Romney for his poor judgment in selecting Bork for this role:

[Biden] addressed specifically the issue of contraception, saying that he “noticed today” that Judge Robert Bork, “a fine man, and a man who I disagree with a lot,” had been named as the Romney campaign’s “justice coordinator.” (He appeared to have read an editorial in today’s New York Times which addressed this fact. Bork was actually named as a chair of Romney’s “Justice Advisory Committee” last August, a Romney spokesperson confirmed.)

He discussed the Bork confirmation hearings, which he oversaw as chairman of the Senate Judiciary Committee, and the discussion of Griswold vs. Connecticut.

“So we’re kind of returning to the past. You know that movie, ‘Back To the Future?’ It feels like to me that we’re going Back to the Future,” he said.

Not too long ago, of course, the Romney campaign spent days pretending to believe that President Obama’s own view of motherhood was somehow in question because someone who has no association with his campaign said something dumb on CNN. Meanwhile, Romney continues to trust Bork as one of his top legal policy advisors — even after Bork claimed that there’s no such thing as discrimination against women and that women who think there is are “silly.”

[I]n a surprising answer to a question, Liljenquist informed The New American that he supports the repeal of the 17th Amendment. Regarding , [sic] Liljenquist explained his opposition to tthe [sic] popular election of the U.S. Senate that was effected by the ratification of the 17th Amendment to the Constitution:

“There is a disconnect between the state legislatures and the state delegations in Washington, D.C.” “I commit that if I ever lose the support of the Utah State Legislature, I will come home and not return to Washington,” he continued.

If this report is accurate, it is disturbing not just because of its content, but because Liljenquist decided to talk to this extremist group in the first place. Moreover, Liljenquist, has a well documented history of attacking the Seventeenth Amendment’s promise of democracy, so it is reasonably likely that the Birchers are telling the truth here.

At a campaign event in Morgan County, Utah, Liljenquist lamented the fact that, as a state lawmaker, the Seventeenth Amendment prevented him from imposing his will on his primary opponent Sen. Orrin Hatch (R-UT):

Liljenquist also talked about Senator Hatch. He said, “As a state legislator it has been very disappointing. We have almost no working relationship with our Senior Senator…It was supposed to be that the senate would represent the state and work with the legislature to make sure state’s rights were protected. Last year we passed a bill and we said, ‘Hey, we know that the seventeenth amendment is in place, we can’t tell you what to do, but come and consult with us, come and speak with us.’ Mike Lee said I understand that’s my role and Orrin Hatch said I don’t report to you.

Earlier this month, Liljenquist also claimed that there need to be term limits on Senators to help counteract the effect of the Seventeenth Amendment. And Liljenquist’s past digs on the Seventeenth Amendment are also part of a larger record of hostility to the Constitution. Indeed, a centerpiece of Liljenquist’s campaign against Hatch is Liljenquist’s belief that Hatch should not have voted to provide health care to children because Liljenquist believes a national program to heal children is unconstitutional. Indeed, his proposal for senatorial term limits is also unconstitutional.

Liljenquist also would not be the first prominent conservative to embrace the ludicrous idea that Americans should not be able to elect their own senators. Justice Scalia once slammed the Seventeenth Amendment, as has Sen. Mike Lee (R-UT) and Gov. Rick Perry (R-TX).

Liljenquist’s campaign did not return a request to confirm or deny the John Birch Society’s claim that he wants to make his own senate election unconstitutional. Nevertheless, in light of Liljenquist’s long pattern of hostility towards the Constitution, and his record of strange statements expressing suspicion about the Seventeenth Amendment itself, it seems reasonably likely that the Birchers’ reporting is accurate.

Florida Governor Rick Scott (R-FL)

Miami U.S. District Judge Ursula Ungaro Thursday morning ruling that random, suspicionless testing of some 85,000 workers violates the Fourth Amendment ban on unreasonable searches and seizures also raises doubts about a new state law quietly signed by Scott this spring allowing the governor’s agency heads to require urine tests of new and existing workers.

“To be reasonable under the Fourth Amendment, a search ordinarily must be based on individualized suspicion of wrongdoing,” Ungaro wrote in her order issued this morning, citing previous U.S. Supreme Court orders which decided that urine tests are considered government searches.

Judge Ungaro’s decision should not be controversial. As she correctly notes, “suspicionless” searches of people who are not individually suspected of committed a crime are rarely acceptable under the Constitution. Nevertheless, these kinds of unconstitutional bills have become the darling of many conservative lawmakers. Rep. Jack Kingston (R-GA) proposed forcing the unemployed to undergo drug tests in order to receive benefits, and Indiana Gov. Mitch Daniels (R) signed a similar drug testing law in his state.

It’s important to note that these drug testing laws are not just unconstitutional, they are also completely unnecessary. Only one percent of Florida workers who took drug tests tested positive, and only two percent of state welfare recipients subject to Scott’s other drug testing law failed their drug tests.

Yet, while these tests are both unconstitutional and a solution in search of a problem, there is still some risk that they could be upheld by an increasingly partisan Supreme Court. Current law is clear that these drug laws are unconstitutional, but the Constitution even more conclusively favors the Affordable Care Act. If the justices are willing to put partisan politics ahead of the law and strike down President Obama’s signature accomplishment, there is good reason to fear they will again put politics before the law if Rick Scott’s drug tests come before them.

So it’s really not that much of a surprise that he found yet another law he thinks is unconstitutional today. This time, it’s the entire Violence Against Women Act:

[The Violence Against Women Act] oversteps the Constitution’s rightful limits on federal power. Violent crimes are regulated and enforced almost exclusively by state governments. In fact, domestic violence is one of the few activities that the Supreme Court of the United States has specifically said Congress may not regulate under the Commerce Clause. As a matter of constitutional policy, Congress should not seek to impose rules and standards as conditions for federal funding in areas where the federal government lacks constitutional authority to regulate directly.

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Once again, Lee might want to consider reading the Constitution before he behaves like he’s an expert in what it says. Although it’s true that Congress cannot prohibit domestic violence under its power to regulate commerce — unlike, say, a comprehensive regulation of the nation’s health care market, domestic violence laws are not economic regulation — the Constitution permits Congress to do a whole lot more than just regulate the nation’s economy. Specifically, the Constitution allows our national leaders to “to pay the debts and provide for the common defense and general welfare of the United States,” and there is simply nothing in the Constitution’s text that prevents Congress from providing for the general welfare by funding grants that states can use to combat domestic violence.

Lee, however, has made quite a political career out of ignoring the text of the Constitution — and wielding his fake Constitution to declare that pretty much any federal law that protects the sick, the unfortunate, the young, the old and, now, women is somehow unconstitutional.

Sen. Orrin Hatch (R-UT) and His Primary Challenger Dan Liljenquist

This weekend, however, delegates to the Utah GOP convention voted to force a primary that will determine whether Republicans in one of the nation’s reddest states are still satisfied with vague generalities — or whether they would prefer a senator who openly and proudly proclaims that it is unconstitutional for the United States to provide health care to children. On Saturday, tenther state lawmaker Dan Lijenquist (R-UT) earned enough support from convention delegates to force a primary against incumbent Sen. Orrin Hatch (R-UT). Lijenquist joins at least four other Republican senate candidates who believe the Constitution requires America to drown most of its protections for workers, consumers and the elderly in a bathtub:

• Dan Lijenquist: Lijenquist himself called the State Children’s Health Insurance Program (SCHIP) unconstitutional in at attempt to draw contrast between himself and Hatch, who once supported the program. It’s not clear what false theory of the Constitution Lijenquist bases this claim on, but a court decision striking down SCHIP would almost certainly have to take out Medicaid, and could endanger Medicare as well.
• Ted Cruz: Texas U.S. Senate candidate Ted Cruz co-authored a white paper suggesting that Medicaid and most federal education funding is unconstitutional. He also coauthored a complex but nonetheless unconstitutional plan to nullify the Affordable Care Act.
• John Raese: West Virginia U.S. Senate candidate John Raese, who is best known for declaring that “we need 1,000 laser systems put in the sky and we need it right now” when he also ran for the same job in 2010, also called the minimum wage unconstitutional during his failed 2010 race.
• Wendy Long: Long, a U.S. Senate candidate in New York, is a former law clerk to tenther Supreme Court Justice Clarence Thomas. She also penned a book review praising an opinion by her former boss which would lead to everything from national child labor laws to the federal ban on whites-only lunch counters being declared unconstitutional.
• Sam Rohrer: Pennsylvania U.S. Senate candidate Sam Rohrer gave a speech claiming that “such things as education, or health care, or for that matter even highways and roads” are limited to the states, a position that would lead to Medicare, all federal education funds & student loans and the entire federal highway system being invalidated.

Although these candidates’ views are increasingly common among Republican elected officials, it is somewhat baffling that Republicans are willing to repeat this strategy of running tenther extremists in their bid to take control of the Senate. In 2010 — a year that otherwise benefited Republicans — four of the six outspoken tenther Senate candidates went down in defeat.

It’s worth noting that, although the death penalty is still technically legal in most states, actual executions are very rare in most of the country — even after a person has been sentenced to death row. According to a 2011 study by the Death Penalty Information Center, thirty-two U.S. jurisdictions executed no one in the previous five years and more than half of those jurisdictions executed no one after the Supreme Court permitted executions to continue in 1976. Only 12 states executed someone in 2010, and only 7 states executed more than one person.

The increasing rarity of the death penalty in most of the country not only reflects America’s evolution away from inhumane and irreversible criminal justice policy, it also has constitutional implications. The Constitution forbids “cruel and unusual punishments,” and the death penalty is increasingly unusual in the overwhelming majority of the nation. At the very least, Texas’ status as the outlier jurisdiction suggests that an Eighth Amendment solution may be necessary.