Sen. Coburn's Radical Enumeration Of Powers Act

June 23, 2011 6:49 pm ET — Jamison Foser

Sen. Tom Coburn

Sen. Tom Coburn (R-OK) announced yesterday the introduction of the Enumerated Powers Act of 2011, which, Coburn says, "gives members of Congress new procedural tools to stop unconstitutional legislation" by requiring all legislation to cite the constitutional authority under which it is written. That sort of requirement has been gaining popularity among Republicans in recent years.

The Enumerated Powers Act might be dismissed as little more than symbolic grandstanding, akin to a politician mentioning at every opportunity that he carries a copy of the Constitution in his jacket pocket — after all, the courts, not Congress, ultimately decide whether legislation is constitutional. But Coburn's announcement of the legislation makes clear that he's actually trying to impose a radical reinterpretation of the Constitution that would undermine decades of judicial rulings — an interpretation that would have prevented landmark civil rights legislation while giving preferential treatment to any legislation that dismantled a government program.

According to Coburn, the act:

Prohibits the use of the Commerce Clause, except for "the regulation of the buying and selling of goods or services, or the transporting for those purposes, across boundaries with foreign nations, across State lines, or with Indian tribes..."

At first glance, that might not seem like much. But Coburn's intent in including this provision is presumably to dramatically narrow the application of the Commerce Clause, otherwise there wouldn't have been any reason to include this prohibition. That intent is troubling given that courts have historically interpreted the clause as allowing, for example, Congress to pass laws preventing businesses from discriminating against African Americans. 

In Heart of Atlanta Motel v. U.S. and Katzenbach v. McClung, the Supreme Court interpreted the Commerce Clause as allowing Congress to prohibit racial discrimination by local businesses. The American Bar Association explains:

In another 1964 case, Katzenbach v. McClung, the Court upheld the Civil Rights Act of 1964 even for a small local restaurant (Ollie's Barbeque). The Court held that even though the restaurant's customers were local, it bought much of its supplies through interstate commerce, and that was enough to bring it under the Commerce Clause.

Coburn's language seems designed to be inconsistent with such interpretations of the Commerce Clause. In other words, if Tom Coburn had his way, the Commerce Clause couldn't be used to prohibit restaurants from discriminating against African-American patrons. (The significance of that sort of thing might be lost on Sen. Coburn, who actually suggested in 2010 that Americans now have less freedom than they did in 1968.)

While attempting to restrict the application of the Commerce Clause, Coburn also invites anyone who wants to abolish any Federal activity or power to just go ahead and invoke states' rights:

States any legislation that abolishes a Federal activity, spending or overall power may cite the 9th or 10th Amendments to the Constitution.

Notice how broad that language is: Any legislation that in any way prevents the federal government from doing anything it currently does can clear Coburn's "enumeration of powers" hurdle by simply citing the Tenth Amendment. For example, if a member of Congress wanted to repeal the Civil Rights Act of 1964 or eliminate Medicare, he could just cite the Tenth Amendment. 

Coburn's decision to limit the invocation of the Commerce Clause and offer automatic procedural sanction to any legislation that abolishes federal government activity demonstrates that his true intent isn't to "Reconnect... Congress with its limited and enumerated powers," as he claims, but to advance his ideological attack on government. He's trying to rewrite the Constitution without going through the trouble of amending it.