Of Course They Are Unconstitutional

Amy Coney Barrett, a circuit judge on the U.S. Court of Appeals for the Seventh Circuit in Chicago, became the 103rd associate justice of the U.S. Supreme Court on October 27, 2020, after she was administered the oath of office by Justice Clarence Thomas and the judicial oath by Chief Justice John Roberts.

After the death of Justice Ruth Bader Ginsburg on September 18, Donald Trump nominated Barrett to succeed her a week later. Her confirmation hearing, which lasted four days, began on October 12. On October 22, the Senate Judiciary Committee reported her confirmation favorably by a 12-0 vote of all Republicans. The ten Democrats on the committee all boycotted the meeting even though the American Bar Association rated Barrett “well qualified” — its highest rating. On October 25, the Senate voted 52-48 to confirm her nomination, with all of the Senate Democrats and one Republican voting against her.

Barrett was criticized during her confirmation hearing because, when questioned by Sen. Dianne Feinstein (D-Calif.), she would not say whether she agrees with “a right-wing scholar who has argued that Medicare and Social Security are unconstitutional because they exceed the spending powers of Congress.” “I’m not familiar with that article,” Barrett said, referring to a 2015 essay by University of San Diego School of Law professor Mike Rappaport, “so I don’t know what reasoning he advances.” When pressed further about whether Medicare is unconstitutional, Barrett said she “can’t answer that question in the abstract…. I also don’t know what the arguments would be…. But it’s not a question I’ve ever considered before.” “It’s hard for me to believe that that’s a real question,” Feinstein responded, “because I think the Medicare program is really sacrosanct in this country.”

It is hard for me to believe that Barrett taught constitutional law at Notre Dame Law School, but I digress.

In response to Barrett’s comments, Sen. Bernie Sanders (I-Vt.) said, “Social Security has been law of the land for 85 years, Medicare for 55. Tens of millions are dependent upon these programs for retirement security and health care. And Judge Barrett doesn’t know if they are constitutional. Really? That’s what right-wing extremism is all about.”

Sen. Elizabeth Warren (D-Mass.) said that Barrett’s record “makes it clear that she’ll vote to rip away health care. In fact, she won’t even say that programs like Medicare are constitutional.”

Sen. Sherrod Brown (D-Ohio) tweeted, “This is exactly what we would expect from a justice handpicked by Trump and McConnell: a corporate judge who will help them gut Social Security and Medicare.”

Sen. Ron Wyden (D-Ore.) added that “this is Republicans’ end game: confirm conservative judges who will undermine overwhelmingly popular programs like Social Security and Medicare and rip away health care from millions.”

The progressive advocacy group Social Security Works warned that Barrett’s remarks show she represents “a threat to our earned benefits.”

The idea that Republicans want to eliminate Social Security and Medicare is, of course, ludicrous. Republicans — from the most conservative members of Congress and the president on down — are proud to be the party of Social Security and Medicare. They regularly put forth plans to reform or save these programs for future generations.

According to the Republican Party platform,

As the party of America’s future, we accept the responsibility to preserve and modernize a system of retirement security forged in an old industrial era beyond the memory of most Americans. Current retirees and those close to retirement can be assured of their benefits. Of the many reforms being proposed, all options should be considered to preserve Social Security.

We intend to save Medicare by modernizing it, empowering its participants, and putting it on a secure financial footing. We will preserve the promise of Medicaid as well by making that program, designed for 1965 medicine, a vehicle for good health in an entirely new era.

In President Trump’s speech this summer at the Republican convention, he reiterated those things: “We will protect Medicare and Social Security.” In Trump’s “An America First Healthcare Plan,” he states, “As long as I’m President, no one will lay a hand on your Medicare. Your Medicare is going to be safe and it’s going to be solid.”

But regardless of what President Trump, the Democratic Party, or the Republican Party think about Social Security and Medicare, regardless of what the Supreme Court has said about either program, regardless of what Justice Amy Coney Barrett thinks about them, regardless of whether both programs are the law of the land, and regardless of how many Americans are dependent upon them, I can confidently and unequivocally say that both Social Security and Medicare are definitely, absolutely, positively unconstitutional.

Of course they are unconstitutional — the Constitution nowhere authorizes the federal government to have anything to do with health care.

Of course they are unconstitutional — the Constitution nowhere authorizes the federal government to have a disability or retirement plan.

Of course they are unconstitutional — the Constitution nowhere authorizes the federal government to have a safety net.

Of course they are unconstitutional — the Constitution nowhere authorizes the federal government to take money from those who work and give it to those who don’t.

Of course they are unconstitutional — the Constitution nowhere authorizes the federal government to have a welfare program for senior citizens.

Of course they are unconstitutional — the Constitution nowhere authorizes the federal government to force some Americans to pay for the health care of other Americans.

Of course they are unconstitutional — the Constitution nowhere authorizes the federal government to redistribute wealth.

Of course they are unconstitutional — the Constitution nowhere authorizes the federal government to have anything to do with insurance.

Why then, do Americans think that Social Security and Medicare are constitutional?

The aforementioned essay by University of San Diego School of Law professor Mike Rappaport — the essay that Feinstein was so upset about — tells us.

Rappaport argues that “the Constitution’s original meaning would have prevented the existing redistributive Social Security and Medicare systems from being established.” He explains:

These programs are enacted under Congress’s so-called spending power. Under this power, Congress is said to have the power to spend for the general welfare.

But I don’t believe there is a spending power. The constitutional provision states that “Congress shall have 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.” In my view, this Clause merely confers on Congress the power to tax. The money is then to be used to further the other enumerated powers, which are briefly characterized as “for the common defense and general welfare.” If this reading, which was held by James Madison is correct, Social Security and Medicare would be unconstitutional.

In another essay, Rappaport explains how this is just the old Madisonian interpretation versus the Hamiltonian interpretation of the Constitution’s General Welfare Clause: “The Madisonian interpretation of the spending power reads the power as limited to spending on the other enumerated powers of the federal government. The Hamiltonian interpretation of the spending power, by contrast, argues that Congress has the power to spend for the general welfare, even if its spending is not authorized by any other enumerated power.”

Amy Coney Barrett should have known better. Social Security and Medicare are unconstitutional.

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