Tea Party and the Right  
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6 Crazy, Unconstitutional Laws Right-Wingers Are Blowing Your Money On

Despite promising to slash government spending, conservatives are apparently willing to break the bank defending their fringe policies in court.

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For starters, the bill would authorize the Tennessee governor and attorney general to unilaterally designate purely domestic entities as "terrorist organizations," freezing their assets and criminalizing interaction with those groups as "material support for terrorism." Designated groups are offered no opportunity to challenge designations prior to them being made. Violent domestic groups such as the mob, the KKK, or the Aryan Nations are typically dealt with through the Racketeer Influenced and Corrupt Organizations Act, or RICO. Tennessee already has its own RICO bill. The new Tennessee bill doesn't require criminal charges as part of designation. For that reason, not only is the bill unnecessary in terms of neutralizing genuine criminal activity--it raises serious First Amendment and due process issues.

2. Abortion Bills Conflicting with Roe

Less humorous are a spate of anti-abortion bills that fly in the face of the Supreme Court's longstanding view that the Constitution grants a “right to privacy” pertaining to such matters as abortion. These are not designed merely to pander to the base, but to restrict abortions to a degree that they become effectively impossible to obtain.

Those pushing the bills understand that the pro-choice community is rightly apprehensive of trying these cases before a Supreme Court with five conservative Catholic justices. So, they are designed to put their opponents in a "damned if you do, damned if you don't" situation; they can accept ever greater limits on women's access to reproductive health services, or they can try their luck in front of the Supreme Court and risk seeing Roe v. Wade overturned altogether.

According to Roe, states can regulate – and even ban – abortions after “viability” (with exceptions for cases in which the mother's life is at risk), which the court has established at 23-24 weeks into a pregnancy. But last week, based on some awful junk science suggesting that non-sentient clumps of cells experience “fetal pain,” Minnesota's legislature banned abortions after 20 weeks. Democratic Governor Mark Dayton is expected to veto the measure, but similar bans have been passed in six other states, according to Melissa Harris-Perry.

3. Nullification Laws

We've seen truthers, birthers, deathers and then there are the tenthers, who believe that states can simply opt-out of any federal law that isn't explicitly included in the Constitution. They've used it to pass – or propose – laws opting out of everything from hate crimes legislation to health-care reform. Yes, they're partying like it's 1861!

The big problem here is that the Constitution grants the power to mediate conflicts between the states and the federal government to the Supreme Court, and on all of the issues tenthers are focused, the court has ruled that the federal laws are indeed the law of the land.

In a nutshell, the 10th Amendment reserves powers not spelled out in the Constitution to the states, but the "supremacy clause" in article 6 and the "necessary and proper" and commerce clauses in article 1 have been interpreted to give the federal government the power to regulate just about everything the tenthers don't like!

More detail can be found in this analysis by Ian Millhiser.

4. States Regulating Immigration

Again, the courts have long held, under the Constitution’s Supremacy Clause, that when a state law conflicts with a federal law, the former is, in the words of Justice John Paul Stevens writing for the majority in a 2008 case, “without effect.” The federal government has argued, and won, a whole slew of cases based on federal immigration laws trumping competing legislation passed by the states.

 
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