If the Roberts Court's conservative majority strikes down the Affordable Care Act, observers seeking to learn which fundamental safety net provisions the Right will go after next would be well advised to look to Fox News for guidance. Based on the crucial role Fox News played in the rise of the Tea Party and the assault (based wholly on political arguments at first, later incorporating legal arguments as well) on the Affordable Care Act, the network likely will serve as the next campaign's chief communicator and cheerleader. A Fox Business Network host may have provided an early hint that Social Security could be next, and given a preview of what that campaign would look like.
The case for the Affordable Care Act's constitutionality is strong, according to leading experts. As Charles Fried, President Reagan's solicitor general, has said: "Health care is interstate commerce. Is this a regulation of it? Yes. End of story." And, to be sure, even some of the Act's harshest critics think there is a good chance that the court will ultimately find it to be constitutional.
But what if Fried is right and if the Roberts Court's conservative majority strikes down the law, it does so on the basis of "[p]olitics, politics, politics." What comes next? Any decision striking down the Act would provide legal and political ammunition for attacks on other safety net statues. The three leading benefit statutes (Social Security, Medicaid and Medicare) would be the most likely targets, although important civil rights and environmental laws would also potentially be on the chopping block, according to Simon Lazarus of the National Senior Citizens Law Center.
The key thing to keep in mind regarding what the campaign to take down the next safety net law would look like is Fried's quote: "[p]olitics, politics, politics." Certainly, whatever new legal theories the Court's conservatives might create to strike down the Affordable Care Act would be put to use by the challengers to Social Security or whatever the next target turns out to be. But think of the campaign Fox News, Rush Limbaugh and the rest of the right wing media carried out against the Affordable Care Act, and the degree to which it overlapped with the highly-politicized rhetoric employed by the conservative justices. The Supreme Court's oral argument over the individual mandate wasn't about a close reading of statutes, the Constitution, or legal precedents. It was about broccoli. Why did broccoli figure so strongly in the argument? Conservatives had pushed a talking point about broccoli incessantly. Indeed, during the argument, Supreme Court Justice Antonin Scalia sounded like he was channeling Rush Limbaugh.
Scalia: "Could you define the market -- everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli."
Limbaugh: "Mr. New Castrati, if they can force us to buy health insurance, they can force us to buy broccoli.... Once you people get it in your heads that you can force us to buy health insurance, what's to stop you from making us buy a stupid electric car?" [Premiere Radio Networks, The Rush Limbaugh Show, 2/1/11, emphasis added]
One is a former professor at the University of Chicago Law School, the other a college drop-out, but when it comes to the constitutionality of the Affordable Care Act, they make the same arguments.
So it would be with Social Security. The attack once again would likely be couched in terms of personal liberty. In that context, think of David Asman's Social Security rant, delivered in an interview with Florida Attorney General Pam Bondi.
ASMAN: What about Social Security? Doesn't Social Security force consumers to buy a pension fund? Isn't that the federal government, as bad as Social Security might be, isn't that the federal government demanding that we as consumers purchase a pension plan?
BONDI: Well, people participate in Social Security when they have --
ASMAN: Not voluntarily. If had a choice I wouldn't.
BONDI: [UNINTELLIGIBLE] But people who are employed participate in Social Security. We all have it taken out of our paychecks.
ASMAN: But it is a mandate. Again, it is a mandate. It's not a voluntary purchase.
BONDI: But this is different because this is not an act. And they're also saying this is not a tax if you recall that. We just by simply sitting here and talking to you the federal government is telling us that we have got to purchase a product and they cannot do that.
ASMAN: But aren't they doing it with Social Security?
BONDI: It is so much bigger than health care.
ASMAN: Aren't they doing that with Social Security?
It's not completely clear whether Asman is suggesting that Social Security is unconstitutional or making a devil's advocate argument to Bondi about the strength of her argument against the Affordable Care Act. What is clear is that Asman doesn't like Social Security. If the Affordable Care Act is thrown out, does anyone really think that conservatives would not return to the argument that Social Security is also on shaky grounds?
With the rhetorical frame in place and Fox News and Limbaugh in full campaign mode, the other elements of the conservative infrastructure which played a leading role in the attack on the Affordable Care Act could swing into motion. The Federalist Society might publish an issue brief, perhaps written by former Bush Administration officials, speculating about a number of possible constitutional challenges, as was the case with respect to the Affordable Care Act. A funder could make a grant to The Federalist Society to host events around the country on the topic. A libertarian law professor (it was Randy Barnett for the Affordable Care Act) could work on the theoretical aspects of the case, while a top corporate Supreme Court litigator (Paul Clement, perhaps) could oversee the litigation strategy.
But the real key would be the media campaign to build political support for the attack. If the media campaign succeeds, the precise nature of the legal arguments will not much matter when the two strands come together in the Supreme Court. At that point, even the broccoli argument will do.