Amy Coney Barrett's Ambivalence Towards Medicare Raises Concerns About a Constitutional Challenge

As Amy Coney Barrett prepares to join the U.S. Supreme Court, the 6-3 conservative majority that her appointment creates has raised concerns that her entrance could signal the end of Medicare.

Health care was center stage at Barrett's confirmation hearings and her noncommittal response when asked about the constitutionality of Medicare raised a red flag for advocates of the popular program. But taking down the 55-year-old program poses significant risks.

"Only a politically suicidal motivation would lead politicians, representatives, senators, governors or state attorney generals to challenge Medicare's constitutionality," Alan Sager, a professor at Boston University's school of public health told Newsweek. "On both legal and political grounds, it would be crazy."

Another legal scholar said that it was possible—albeit with a "vanishingly small approaching zero chance"— but public opinion would have to change first.

"The thing about constitutional litigation is that it's not just about who can come up with a clever legal argument to persuade five Supreme Court justices," Nicholas Bagley, a law professor at the University of Michigan, told Newsweek. "To move a constitutional argument that once seemed crazy to plausible you have to convince a lot of people in the broader public."

Medicare provides insurance coverage to Americans over 65 and people of all ages with permanent disabilities. Senator Dianne Feinstein called Medicare "really sacrosanct," and a Kaiser Family Foundation poll on the 50th anniversary of the program found that 77% of people considered it "very important," including 69 percent of Republicans.

Given its support, Bagley said the GOP is unlikely to make opposition to it a plank of the party, as was the case with the Affordable Care Act (ACA).

Those who want to end Medicare are likely to construct their argument on a strict interpretation of the Constitution. It is a question of the extent of the powers of the federal government, and it goes back to the Founding Fathers. The argument began between James Madison and Alexander Hamilton about spending on the "general welfare" of the citizens, according to Bernadette Meyler, the Carl and Sheila Spaeth professor of law at Stanford Law School.

Madison argued for a limited view of Congressional power, while Hamilton took a broader view. Hamilton's argument has been the dominant one among legal scholars, while Madison's argument is considered a "fringe position," Meyler said. The courts have followed suit.

Those who argue that Medicare is unconstitutional consider Madison to be right. Mike Rappaport, a law professor at the University of San Diego, interprets the spending clause in Article I as giving Congress the power to tax. That money then needs to be used to further enumerated powers, such as borrowing money, providing for the common defense and regulating commerce. Those powers, he argues in an article, don't include Social Security and Medicare.

They will hope to have a receptive ear in Barrett, who, like Antonin Scalia, a predecessor on the court for whom she was a law clerk, is an "originalist" when it comes to interpreting the Constitution.

Feinstein asked Barrett in her confirmation hearing if she thought that Medicare was unconstitutional. As she did with virtually every issue of substance, Barrett essentially refused to answer.

"I can't answer that question in the abstract because, as we've talked about, the no hints, no forecast, no previews rule," she said. "It's not a question that I've ever considered before. But if I did consider it would be in the context of an actual case or controversy."

Her failure to give a concrete answer sparked criticism, but early on in the process she indicated that she believes her own policy views shouldn't influence her role as a judge. In response to a request for comment, Judd Deere, deputy press secretary for the White House, quoted Barrett from the day she was nominated, saying "A judge must apply the law as written. Judges are not policymakers, and they must be resolute in setting aside any policy views they might hold."

Barrett may have been following a decades-old cautionary tactic of not pigeon-holing herself into a stance. Or, she may have wanted to be "ginger" on the issue because of the possibility that Congress adopts Medicare-for-All and it's challenged in the Supreme Court, Bagley said.

Meyler said that essentially all bets are off with this new Court.

"I think that everything's up for grabs at this point because so much has changed on the court," she told Newsweek. "They might find a reason to find Medicare-for-All unconstitutional, but it would be a little difficult given Medicare."

Unlike Sager and Bagley, Meyler considered it "quite likely" that someone would pursue a case to strike down Medicare, and she said there was a 50/50 chance the Supreme Court would take the case.

"It's a delicate balance," Meyler said, "because at a certain point if people feel the arguments the court is making in the name of originalism are so far away from where we are today, it makes amending the Constitution so much more plausible."