Republican Leaders Might Not Be Trying to Kill Social Security and Medicare. But Their Judges Are – By Mark Joseph Stern (Slate) / Feb 9, 2023
Far-right judges are crafting a theory that would empower courts to strike down trillions of dollars in federal spending.
During his State of the Union address on Tuesday, President Joe Biden criticized Republicans for proposing to “sunset” Medicare and Social Security every five years. In response, many Republican lawmakers booed the president, prompting him to quip, “So, folks, as we all apparently agree: Social Security and Medicare is off the books now.”
Perhaps these Republicans really do disagree with a plan put forth by a member of their leadership mandating periodic expiration of popular entitlement spending. But at least some of their judges are all for it—and want to transform the idea into constitution law. Recently, the 5th U.S. Circuit Court of Appeals crafted a theory that would empower courts to strike down mandatory spending on federal programs, compelling Congress to either reappropriate the money or let the programs die. This radical and antidemocratic reading of the Constitution would threaten Medicare, Medicaid, Social Security, the Affordable Care Act, unemployment benefits, child nutrition assistance, and so much more. Democrats and Republicans would be foolish to ignore the rebellion against federal spending that’s brewing in the 5th Circuit.
The conservative assault on entitlement programs arose during litigation against a frequent target of GOP ire: the Consumer Financial Protection Bureau, a watchdog agency created in 2010 that protects Americans against exploitative fraud and deceit in home mortgages, credit cards, consumer loans, and retail banking. For years now, right-wing litigators have argued that the CFPB is unconstitutional because it is funded independently: The agency draws its budget from the Federal Reserve, which in turn draws its budget from interest on securities. Because Congress does not directly appropriate money to the CFPB every year, lawyers claimed, its funding violates the Constitution’s appropriations clause.
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