Barrett won't say if Medicare is constitutional

Alexander Nazaryan
·National Correspondent
·3 mins read

WASHINGTON — In the third day of Senate hearings, Democrats continued to press their case that Supreme Court nominee Amy Coney Barrett is hostile to the Affordable Care Act, a central element of their long-shot effort to derail her nomination.

That argument was helped along on Wednesday by an exchange between Barrett and Sen. Dianne Feinstein, the top Democrat on the Senate Judiciary Committee, during which the nominee refused to say if the law creating Medicare is constitutional.

While that may not keep Barrett from joining the Supreme Court, it could hurt the prospects of both President Trump and Senate Republicans. Democrats have relentlessly depicted them as wanting to take away Americans’ health care, an argument helped along by the GOP’s efforts to repeal the Affordable Care Act.

Barrett seemed to unwittingly play into that narrative in her exchange with Feinstein.

“Some have argued that the Medicare program is unconstitutional,” Feinstein said, describing the federal benefit as, in those critics’ view, “an unconstitutional exercise in congressional spending power.”

Medicare, which was created in 1965, pays for hospitalization and medical bills for Americans older than 65. Although many Americans worry about whether the federal government will adequately fund Medicare in the future, it is broadly popular among senior citizens.

Ranking Member Senator Dianne Feinstein (D-CA) questions Supreme Court nominee Judge Amy Coney Barrett during her confirmation hearing on Capitol Hill, in Washington, DC. on October 14, 2020. (Bonnie Cash/Pool via Reuters)
Sen. Dianne Feinstein questions Amy Coney Barrett during her confirmation hearing on Wednesday. (Bonnie Cash/Pool/Reuters)

Access to the companion program, Medicaid, which covers low-income Americans, was expanded under the Affordable Care Act, a move that has become more popular since the start of the coronavirus pandemic.

Feinstein then proceeded to read from a brief 2015 essay by Michael Rappaport, a conservative legal scholar at the University of San Diego. Titled “The Unconstitutionality of Social Security and Medicare,” the paper argues that “these programs would have never taken their pernicious form if the Constitution’s original meaning had been followed in the first place.”

Barrett is, like Rappaport, a constitutional originalist. An originalist philosophy would be consistent with Rappaport’s conclusion that popular though they may be, New Deal and Great Society social programs — often called “entitlements” because qualified recipients are “entitled” to them by law — represent an illegitimate expansion of the administrative state.

Conservative icon Ronald Reagan got his start in politics by recording a now famous speech against Medicare when Democrats proposed it in 1961. He called it “socialized medicine,” the same phrase Republicans would use to attack the Affordable Care Act 50 years later.

Shrinking the “welfare state” has been the project of many Republicans in Congress, who almost uniformly support Barrett’s nomination to the high court. In 2017, Barrett criticized Chief Justice John Roberts — himself a judicial conservative appointed by a Republican president — because, she wrote, he “pushed the Affordable Care Act beyond its plausible meaning to save the statute.”

Supreme Court nominee Judge Amy Coney Barrett testifies on the third day of her confirmation hearing before the Senate Judiciary Committee on Capitol Hill on October 14, 2020 in Washington, DC. (Greg Nash/Pool/AFP via Getty Images)
Supreme Court nominee Amy Coney Barrett testifies before the Senate Judiciary Committee on Wednesday. (Greg Nash/Pool/AFP via Getty Images)

With that view plainly in mind, Feinstein asked Barrett if she agreed with “originalists who say that the Medicare program is unconstitutional.”

Barrett said she was “not familiar” with Rappaport’s article. Pressed by Feinstein for an opinion on the broader point about Medicare’s legitimacy, Barrett said she could not “answer that question in the abstract,” citing the so-called Ginsburg rule, an excuse frequently used by Republican-nominated judges to avoid revealing how they might rule.

“I also don’t know what the arguments would be,” she added, referring, presumably, to a case that sought to challenge Medicare’s validity. A seemingly incredulous Feinstein described Medicare as “really sacrosanct in this country.”

Democrats outside the hearing room quickly seized on what they saw as a devastating admission by the nominee. “Every senior in America and everyone on Medicare needs to know this,” tweeted Senate Minority Leader Chuck Schumer. “We already knew Judge Barrett is ready to end the ACA and rip health care from millions. Now she’s refusing to even say that Medicare is constitutional!”

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