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10/15/2020

Mike Rappaport's Views Discussed at Judge Barrett's Senate Confirmation Hearing (and I Disagree)
Michael Ramsey

From CBS News: USD law professor’s view of originalism debated at Supreme Court confirmation hearing.

The writings of a University of San Diego law professor played a role in Wednesday’s Supreme Court confirmation hearing.

USD Professor Mike Rappaport once wrote an article arguing Social Security and Medicare were unconstitutional. Senator Dianne Feinstein wanted to know if the Supreme Court nominee, Amy Coney Barrett, felt the same way.

“Some have argued that the Medicare program is unconstitutional,” Senator Feinstein began.

Professor Rappaport, like Barrett, considers himself a constitutional originalist. He wrote the 2015 article in "Law & Liberty" entitled, "The Unconstitutionality of Social Security and Medicare."

“Professor Mike Rappaport of the University of San Diego Law, wrote this, "...it is worth remembering that these programs would never have taken their pernicious form if the Constitution's original meaning had been followed in the first place,” said Feinstein.

...

“Do you agree with originalists who say that the Medicare program is unconstitutional?” asked Feinstein.

“I can't answer that question in the abstract because, as we've talked about, the 'no hints, no forecast, no previews' rule. I also don't know what the arguments would be,” responded Barrett. ...

Congratulations to my colleague and co-blogger!  As we say at USD law, that's "high impact scholarship." 

Also, I think he's wrong. He argues:

These programs [Social Security and Medicare] 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.  (I should note that some originalists disagree with this reading of the Constitution, but I think they are mistaken. For my defense of this reading, see here and here.)

I'm one of those originalists (or maybe "textualists") who disagrees.  Here's the text again:

Congress shall have power to lay and collect taxes ... to  ... provide for the ... general welfare of the United States.

This sounds to me like an authorization to spend tax revenue on the general welfare, which in turn sounds like a very broad and open-ended category of objectives.  Professor Rappaport says that the money can only be used to "further the other enumerated powers, which are briefly characterized as 'for the common defense and general welfare.""  But if the Framers wanted to limit federal spending to the other enumerated powers, this is an odd and uncertain way to do it.  It would have been much better (and safer) to say: "Congress shall have power to lay and collect taxes ... to  ... bring into execution the powers granted to it in this Constitution."

"General welfare" is not at all an obvious synonym for "enumerated powers."  Rather, it seems to mean, less specifically, things in the national public interest, which surely include the enumerated powers but could be much broader.  For example, suppose one thinks that creating a national university (something debated at the founding) is not within Congress' enumerated powers.  (I think it probably isn't).  One could still easily conclude that a national university promotes the general welfare, in the ordinary sense of that phrase (which seems to mean something like bringing greater prosperity to the people as a whole).

I know that Madison and other framers are against me here.  But, after its adoption, they had an interest in reading the spending clause narrowly.  And when the text seems clear I'll take it over Madison.

FURTHER THOUGHTS:  Also I think Judge Barrett fumbled the response.  This isn't an obscure issue.  The Supreme Court discussed the competing founding-era views of the spending clause in United States v. Butler, 297 U.S. 1 (1936) and opted for the broader Hamiltonian view over the narrower Madison/Rappaport view.  The Court then upheld the 1935 Social Security Act the next year in Steward Machine Co. v. Davis, 301 U.S 548 (1937) and Helvering v. Davis, 301 U.S. 619 (1937).  The constitutionality of Medicare seems to follow easily from the constitutionality of Social Security. I'm not aware of any serious judicial challenges to these conclusions since the New Deal, and the reliance and institutional interests seem paramount and more than adequate to sustain the outcomes under pretty much any theory of stare decisis (as Professor Rappaport himself says in the linked post).