The Right’s Aggressive Efforts to Employ the Constitution to Shred the Social Safety Net

June 6, 2012

by Jeremy Leaming

The libertarian argument wielded against the Obama administration’s health care reform law was propelled quickly and effectively by a right-wing “infrastructure” that has its sights set on longstanding, but weakened social safety net laws.

Media Matters’ David Lyle says those concerned about the nation’s social safety net and the Constitution’s progressive values, “should remember how aggressively and efficiently the right was able to deploy its view of the Constitution as a weapon, and meet future attempts to do so head on.”

Lyle cites a recent Salon piece by Northwestern University law and political science professor Andrew Koppelman, which provides a detailed examination of the evolution of the wildly libertarian argument used against the Affordable Care Act’s minimum coverage provision. That provision of the law requires Americans who can afford it, to purchase a minimum amount of health care insurance starting in 2014.

Lyle writes:

Koppelman's research shows that within a few months in mid-2009 the constitutional argument against health care reform went from nonexistent to a subject of mainstream discussion. Koppelman was unable to find any published claim that the individual mandate would be unconstitutional prior to a July 2009 Federalist Society issue brief written by two former Bush administration officials. In August 2009, conservative lawyers David Rivkin and Lee Casey, who regularly write on issues the right-wing legal infrastructure wishes to move into the mainstream, published a Washington Post op-ed attacking the mandate on constitutional grounds. On September 18, law professor Randy Barnett, who would play a leading role in the subsequent litigation against the act, first weighed in on the issue with a post on Politico. Koppelman notes that days later CBS News reported that "[i]n the last few days, a new argument has emerged in the debate over Democratic healthcare proposals," and that CBS mentioned that the constitutionality issue had emerged on The O'Reilly Factor and Fox News.

The Right’s ability, Lyle continues, to define the constitutional debate “is all the more potent because it so effectively complements a highly ideological, bordering on politically partisan, conservative pro-corporate wing of the federal judiciary.”

He notes, among other instances, a recent concurring opinion by D.C. Circuit Judge Janice Rogers Brown in Hettinga v. United States. Brown, appointed to the federal appeals court bench by George W. Bush, used her opinion to launch a screed against the federal government’s efforts to battle poverty and provide a sturdy social safety net.

For example, Brown bemoaned the decline of “cowboy capitalism” and the rise of the New Deal. The Supreme Court, Brown claimed had “allowed state and local jurisdictions to regulate property, pursuant to their police powers. In the public interest, and to adopt whatever economic policy may reasonably be deemed to promote the public welfare.”

Brown’s hostility to a social safety net, already tattered, is apparently shared by some her right-wing brethren. During oral argument over the health care law’s minimum coverage provision before the Supreme Court, numerous justices, especially Justice Antonin Scalia revealed not only a wobbly understanding of the health care insurance market, but a callousness towards the tens of millions of Americans who are shut out of the system.

These actions are bound to be employed against other social safety net programs that right-wing lawmakers and their corporate allies are itching to obliterate.

Indeed Lyle notes an ACS Issue Brief by the National Senior Citizens Law Center’s Simon Lazarus who argued, in part, that if the radical libertarian argument successfully sinks the health care law’s integral provision, it will be used to go after other longstanding parts of the social safety net.

“Certainly, cases will be brought alleging that the principle on which a decision adverse to the ACA rests necessarily implicates Medicare and Social Security taxes as well …,” Lazarus wrote in “The Health Care Lawsuits: Unraveling a Century of Constitutional Law and the Fabric of Modern American Government.”

[image via The Higgs Boson]