What If the Tea Party Wins?

In the Tea Party's America, families must mortgage their home to pay for their mother’s end-of-life care. Higher education is a luxury reserved almost exclusively to the very rich. Rotten meat ships to supermarkets nationwide without a national agency to inspect it. Fathers compete with their adolescent children for sub-minimum wage jobs. And our national leaders are utterly powerless to do a thing.

At least, that’s what would happen if the Tea Party succeeds in its effort to reimagine the Constitution as an antigovernment manifesto. While the House of Representatives pushes Rep. Paul Ryan’s (R-WI) plan to phase out Medicare, numerous members of Congress, a least one Supreme Court justice, and the governor of America’s second-largest state now proudly declare that most of the progress of the last century violates the Constitution.

It is difficult to count how many essential laws would simply cease to exist if the Tea Party won its battle to reshape our founding document, but a short list 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
*Child labor laws, the minimum wage, overtime, and other labor protections
*Federal civil rights laws

Indeed, as this paper explains, many state lawmakers even embrace a discredited constitutional doctrine that threatens the union itself.

What’s at stake

The Tea Party imagines a constitution focused entirely upon the Tenth Amendment, which provides that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”—which is why their narrow vision of the nation’s power is often referred to as “tentherism.” In layman’s terms, the Tenth Amendment is simply a reminder that the Constitution contains an itemized list of federal powers—such as the power to regulate interstate commerce or establish post offices or make war on foreign nations—and anything not contained in that list is beyond Congress’s authority.

The Tea Party, however, believes these powers must be read too narrowly to permit much of the progress of the last century. This issue brief examines just some of the essential programs that leading Tea Partiers would declare unconstitutional.

Social Security and Medicare

The Constitution gives Congress the power “to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States,” thus empowering the federal government to levy taxes and leverage these revenues for programs such as Social Security and Medicare. A disturbingly large number of elected officials, however, insist that these words don’t actually mean what they say.

In a speech to the conservative American Legislative Exchange Council, Texas Gov. Rick Perry listed a broad swath of programs that “contradict the principles of limited, constitutional government that our founders established to protect us.” Gov. Perry’s list includes Medicare and “a bankrupt social security system, that Americans understand is essentially a Ponzi scheme on a scale that makes Bernie Madoff look like an amateur.” And Perry is hardly the only high-ranking elected official to share this view.

Sen. Mike Lee (R-UT) mocked President Franklin Delano Roosevelt for calling upon the federal government to provide “a decent retirement plan” and “health care” because “the Constitution doesn’t give Congress any of those powers.” Rep. Bob Goodlatte (R-VA), who engineered the House of Representatives’s dramatic reading of the Constitution earlier this year, claimed that Medicare and Social Security are “not in the Constitution” and are only allowed to exist because “the courts have stretched the Constitution to say it’s in the general welfare clause.” Sen. Tom Coburn (R-OK) said we should eliminate Medicare because “that’s a family responsibility, not a government responsibility.”

Because this erroneous view of our founding document is rooted in an exaggerated view of the Tenth Amendment’s states rights’ provision, many so-called tenthers claim that eliminating Social Security and Medicare wouldn’t necessarily mean kicking millions of seniors out into the cold because state governments could enact their own retirement programs to pick up the slack. This proposal, however, ignores basic economics.

Under our current system, someone who begins their career in Ohio, moves to Virginia to accept a better job offer, and then retires in Florida pays the same federal taxes regardless of their residence. These taxes then fund programs such as Medicare and Social Security. If each state were responsible for setting up its own retirement system, however, the person described above would pay Ohio taxes while they worked in Ohio, Virginia taxes while they lived in Virginia, and would draw benefits from the state of Florida during their retirement. The state which benefited from their taxes would not be the same state that was required to fund their retirement, and the result would be an economic death spiral for states such as Florida that attract an unusually large number of retirees.

For this reason, tenther proposals to simply let the states take over Social Security and Medicare are nothing more than a backdoor way to eliminate these programs altogether. If the Tea Party gets its way, and our nation’s social safety net for seniors is declared unconstitutional, millions of seniors will lose their only income and their only means to pay for health care.

Medicaid, the State Children’s Health Insurance Program, and other health care programs
The Tea Party’s constitution has plenty of bad news for Americans below the retirement age as well. Rep. Virginia Foxx (R-NC), for example, recently claimed that any federal involvement in health care whatsoever is unconstitutional because “the words ‘health care’ are nowhere in the Constitution.”

Sen. Coburn lumped Medicaid in with Medicare when he claimed that providing for the frailest Americans is a “family responsibility,” and Gov. Perry includes constitutional government.” Sen. Mike Lee’s (R-UT) claim that “the Constitution doesn’t give Congress” any authority over health care is a blanket statement encompassing all federal health programs.

If this vision were to be implemented, all federal health care programs would simply cease to exist and millions of Americans would lose their only access to health insurance.

Education

Education is also on the Tea Party’s chopping block. Rep. Scott Garrett (R-NJ) routinely grills education secretaries at congressional hearings, insisting that the Constitution does not authorize any federal involvement in education. Similarly, Rep. Foxx insists that “we should not be funding education” because she insists doing so violates the Tenth Amendment. And Sen. Coburn does not “even think [education] is a role for the federal government.”

In its strongest form, this position wouldn’t just eliminate federal assistance for state-run public schools. It would also eliminate programs enabling Americans to pay for their college education. Millions of students would lose their Pell Grants and federal student loans if the Tea Party’s full vision of the Constitution were implemented.

Some tenthers, however, offer a slightly less drastic position. It is commonplace for the federal government to grant money to the states if those states agree to comply with certain conditions. Federal law, for example, provides generous public education grants provided that states gather data on student achievement and comply with other such conditions. Many Tea Partiers argue that these conditions violate the Constitution. Thus, Rep. Blake Farenthold (R-TX), claims that the Constitution only permits the federal government to provide states with “block grants.”

The truth, however, is that the federal government has never told states how to educate their children—and it could not do so if it tried. Under a Supreme Court decision called Printz v. United States, federal laws ordering a state to take a specific action actually do violate the Tenth Amendment. So, the state of Texas is perfectly free to turn down federal grants if they do not like the conditions attached to them.

Moreover, it is not clear how federal grants of any kind can exist if Congress is not allowed to attach conditions to them. If Congress cannot constitutionally require states to spend grant money on standardized testing, for example, how can they require that it be spent on education and not on building a new wing for the governor’s mansion? Thus, even the slightly more moderate position advocated by people like Rep. Farenthold would likely eliminate the federal government’s ability to provide educational assistance to low-income students or otherwise help fund public schools.

Antipoverty programs, federal disaster relief, and other help for the less fortunate
Sen. Lee would go even further in cutting off assistance for low-income Americans. In an interview with a Utah radio host, Lee claimed that the framers intended all antipoverty programs to be dealt with exclusively at the state level. This would not only eliminate programs like income assistance and food stamps, it could threaten unemployment insurance, federal job training, and other programs intended to provide a bridge out of poverty.

In the same interview, Sen. Lee claimed that federal relief for hurricane, earthquake, tornado, and other disaster victims is “one of many areas where we ought to focus on getting that power back to the states,” a position that would kill the Federal Emergency Management Agency and prevent the nation as a whole from rallying to the support of a state whose financial resources are overwhelmed by a major natural disaster.