6 Crazy, Unconstitutional Laws Right-Wingers Are Blowing Your Money On
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They rode into power on a wave of conservative populism, vowing to rein in spending, slash deficits (remember how the Tea Partiers swore they weren't focusing on those “wedge” social issues anymore?), and above all, restore our fealty to the Constitution, a document they claim to hold an almost religious reverence for.
Then, in a development as easy to predict as the sun rising in the east, they set themselves to passing outrageous legislation designed to appeal to their far-right base – much of it legislation that, on its face, is blatantly unconstitutional. And passing gimmicky, unconstitutional laws isn't free – under federal law, states can be ordered to pay the fees of the lawyers who bring winning civil rights suits against them, so they usually end up picking up the tab for both sides of the litigation when they lose.
Arizona has already spent $1.5 million defending SB 1070, the so-called "papers, please" law, but with several suits ongoing, that's just the beginning. According to the Arizona Capital Times, "more than 251 attorneys have worked on more than a half dozen lawsuits against the bill, and the federal courts hearing the cases have received more than 2,000 filings and 56 amicus briefs." Arizona may face a huge legal bill at the end of the road, but the good news for Governor Jan Brewer is that anti-immigration hardliners across the country have donated millions to a special fund to help defray the state's costs.
But that's not the case in South Dakota, which had raised less than $20,000 through the end of March for a similar fund to defend its latest abortion restrictions, according to the Rapid City Journal. The state's Attorney General estimated that defending the law could cost South Dakota up to $4.1 million if it loses, including $1.7 million in legal fees for Planned Parenthood. That's nothing new; according to RH Reality Check, "the state is still in the process of defending its last unconstitutional anti-abortion bill...The 2005 law, which is still being heard in the 8th circuit, has currently run up $1.7 million just in attorney’s fees for Planned Parenthood..."
The costs of violating citizens' rights can really add up. And yet, after promising to slash government spending, conservatives in a dozen state houses across the country are apparently willing to break the bank defending their fringe policies in court. In some cases, they believe they might get an activist conservative majority on the Supreme Court to overturn decades of precedent and support their laws, but in others they're simply prepared to waste millions of tax dollars to litigate wacky legislation that has zero chance of being upheld.
Here then are six seemingly unconstitutional state laws proposed or passed in recent months. You might want to don a tricorner hat while enjoying them.
1. Anti-Sharia Laws
According to Mother Jones, five states have banned “Sharia law” and another 11 (!) are “working on it.” Aside from the fact that, for the non-crazy among us, there is no discrete legal code known as Sharia law, the other problems with these measures are the establishment and free exercise clauses of the 1st Amendment of the United States Constitution.
There are various schools of Sharia, but all represent a code of personal conduct followed by Muslims. That makes it extra sticky to define a “Sharia organization,” as evidenced by a proposal in Tennessee that would have criminalized two or more Muslims joining together for prayers. After coming under ridicule in the national media, Adam Serwer reports that the bill's sponsors “altered” their proposal, “eliminating all references to sharia from the bill.” It is now, ostensibly, an “anti-terrorism” measure, which, according to Serwer, remains just as constitutionally sketchy.
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.
In fact, as I noted last year, the courts have held that the government has exclusive domain over immigration law dating back to the 1880s. The National Immigration Law Center summarized those early decisions like this:
In a series of cases in the late nineteenth century upholding provisions of the Chinese Exclusion Acts, the Supreme Court described the federal immigration power in sweeping terms, as a plenary power not subject to normal judicial restraints. In subsequent decisions the Court has repeatedly confirmed Congress’s full and exclusive authority over immigration. State and local laws that attempt to regulate immigration violate the Supremacy Clause of the U.S. Constitution and are therefore preempted by federal law.
Later, in the 1940 case Hines v. Davidowitz, the court struck down a Pennsylvania law that would have criminalized “aliens” who failed to carry state registration cards. The Supreme Court held that “Whatever power a State may have to restrict, limit, regulate and register aliens as a distinct group, is subject to the national legislative and treaty-making powers.” The justices found that the federal government had enacted “a comprehensive and integrated scheme for the regulation of aliens,” which “precludes the enforcement of state alien registration Acts such as that adopted by Pennsylvania.”
Arguably the most definitive decision came in the 1976 ruling in De Canas v. Bica. In that case, a California law that prohibited employers from knowingly hiring undocumented workers was upheld by the court specifically because they found it was aimed not at regulating immigration, but at setting employment standards within the state. The case resulted in three tests to determine whether a local ordinance was preempted by federal law:
1. Constitutional preemption: Is the state or locality attempting to regulate immigration?
2. Field preemption: Did Congress intend to occupy the field and oust state or local power?
3. Conflict preemption: Does the state or local law stand as an obstacle to or conflict with federal law, making compliance with both the state and federal law impossible?
A state statute or local ordinance that fails any one of these three tests is unconstitutional, and therefore invalid. Arizona's controversial immigration law, SB 1070, is the subject of multiple suits costing the cash-strapped state millions to defend. SB 1070 explicitly states that the purpose of the law is to make “attrition through enforcement the public policy” of Arizona. “Attrition by enforcement” is the preferred policy of the xenophobic Tom Tancredo wing of the conservative movement, but it clearly contradicts federal immigration policy. Right-wing lawmakers tried and failed to make it the law of the land in 2005.
Florida, Georgia and Alabama are all considering copy-cat laws, according to the New York Times.
5. Don't Say This or That Laws
Guess what? Nowhere in the First Amendment does it say, you have the right to free speech, “except for those living in the deep South.”
Yet Florida's legislature has passed a law barring physicians from asking patients if there is a firearm present in their home. An earlier version of the bill, subtly called “Don't Ask,” would have made it a felony, but that was apparently too crazy even for Florida.
Not to be outdone, the Tennessee Senate passed a law this week that “would forbid public school teachers and students in grades kindergarten through eight from discussing the fact that some people are gay.” The “Don't Say 'Gay'” law prompted George Takei, of Star Trek fame, to offer his own name to be used as a proxy.
6. Financial 'Martial Law'
Also in the less funny category is Michigan governor Rick Snyder's “financial martial law” legislation, which allows him to appoint “emergency financial managers” authorized to take over local municipalities. It empowers them, among other things, to “reject, modify, or terminate one or more terms and conditions of an existing collective bargaining agreement.”
Typical war on unions stuff, yet as Think Progress noted, it's also pretty obviously unconstitutional:
There’s a pretty serious problem with this power grab, however — invoking it would violate the Constitution. The Constitution forbids state laws “impairing the Obligation of Contracts.” This provision provides a robust limit on a state’s ability to dissolve contracts between the government and a private party. As the Supreme Court explained in United States Trust Co. v. New Jersey, state laws impairing such contracts must be “reasonable and necessary to serve an important public purpose.”
The consequences of Snyder’s actions could be stark. If a state is free to break contracts whenever they feel like it, than no one will agree to do business with the state. Investors will refuse to buy the state’s bonds, and state contractors will demand all payments upfront out of fear that the state will accept their work and then tear up the contract requiring the workers to be paid. Creditors will charge the state enormous interest rates to secure against the risk that the state will just waive its hand and make its obligation to repay go away.
Bad, Costly, Ideologically Driven 'Governance'
As I've argued in the past, conservatives have come to use the word “unconstitutional” to mean any policy they don't like. One might argue that progressives have ceded that ground to them, but all of these issues speak to the beauty of that document, which places a hard limit on what ideologues can do when they get a little bit of power.
Of course, these are all pathetic exercises in “governance,” but, barring some very egregious judicial activism – not out of the question with this Supreme Court – these silly and dangerous laws will not stand.