Private: Constitutional Disability

by E. Sebastian Arduengo

NPR recently aired a sobering account of the state of Social Security Disability Insurance (Disability) a government program that provides 14 million Americans with a sustenance income,while providing them no real means of addressing their physical or mental affliction or economic poverty. In fact, less than one percent of people ever transition from Disability into the world of work with all of its attendant benefits, like raises, meaningfulness, social contact, etc., meager as those may be with some jobs. Most people simply die while on Disability or lurch onto regular Social Security, the government social insurance program that provides benefits to the elderly.

In the severely depressed labor market of the Great Recession, which itself greatly favors information-centric skills, many older workers with little education who have been laid off from manufacturing jobs feel that going on to disability is a better choice for making it to retirement than spending their last few years in a menial job where they have to stand all day. But, it’s not just former blue collar workers in the Mississippi valley and Pacific Northwest that are going on disability. In cities across the country, entire families subsist off of the disability check they receive because they have a child with a learning disability.

It’s a system that is riddled with perverse incentives. If a child on disability starts to succeed in school that actually threatens the family’s livelihood. So, it’s actually in the best interests of the family financially if a child continues to struggle in school. Unlike Temporary Assistance for Needy Families (welfare), if a beneficiary starts to work, they aren’t eased off of the program – they face a real risk of immediately losing all of their benefits.

Both the state and federal governments have an incentive to get people on disability. For the federal government, it’s a matter of artificially lowering the unemployment rate. The Bureau of Labor Statistics doesn’t count people on disability as looking for work. They are basically forgotten in conversations about the state of the economy. The state governments, who are charged with partially financing their welfare and Medicaid programs, have a financial incentive to get people onto disability. Less people on the rolls means fewer payouts eating into the state budget. Many states have even hired consulting firms to identify people on their welfare rolls who could be eligible for disability and then get them onto the program, often by filling out forms and arranging doctor’s visits for the intended beneficiaries.

The backwardness even extends to the legal infrastructure around Disability. A subset of the legal profession dedicated to “getting people the benefits they deserve,” has swelled into a multi-million dollar industry. The reason? If a claimant is initially denied benefits by their Social Security office and then later prevail, they are given back benefits back to the date they initially apply. Should they require the assistance of counsel, federal law directs the Social Security Administration to pay the lawyers 25 percent of the back benefits directly. It’s the makings of a lucrative practice for some attorneys.

All of this, the social costs, warped incentives, Disability industrial complex, everything, can be traced back to a failure on the part of our elected officials to live up to their constitutional responsibilities. Those who are consistently demanding that the federal government’s actions have a constitutional imprimatur should be pleased to know that the word “welfare” actually is in the constitution. But even more importantly, as scholars like William E. Forbath argue, the American constitutional experience has a rich tradition of trying to achieve “a fair distribution of initial endowments.” The founding generation provided land grants to settlers, established public education, and created a national road (at a time when all roads were privately owned).

We’re not talking about constitutional socialism here. Americans expect to work for what they have, and be rewarded for that work. But, in the words of Justice Ruth Bader Ginsburg – the national economy should be regulated “in favor of those who labor to sustain it.” Why? Because the constitutional promises of individual freedom and equality mean little in a country that is structurally unequal. As professor Forbath put it, “gross economic inequality produces an oligarchy in which the wealthy rule. Insofar as it produces a lack of basic social goods at the bottom, gross inequality also destroys the material independence and security that democratic citizens require to participate on a roughly equal footing in political and social life.”

In their repeated attacks on the regulatory apparatus designed to keep that equal footing, our leaders have utterly abandoned their constitutional responsibilities. “Reforms” like the “end of welfare as we know it” (TANF) and the repeal Glass–Steagall Act (which separated commercial and investment banking) have served only to exacerbate differences between the rich and poor. As the gap widens, the very foundation of our democracy is undermined in a more complete and systemic way than Republican election officials in Ohio could ever hope to achieve.

The fact that record numbers of people are on Disability isn’t suggestive of people cheating the system, or that the social safety net needs to be cut back. It’s merely a glaringly obvious failure on the part of our political system for anyone who cares to look. To get back on track, we need to make sure that the guarantees provided by our constitution aren’t just fodder for recitation. They need to have force and meaning in the lives of all Americans – not just the one percent. 

Constitutional Interpretation, Economic Inequality