New Analysis Explores Republicans’ Courts-Based Strategy To Shred the Social Safety Net  

WASHINGTON, DC, APRIL 27, 2020 – As the coronavirus pandemic magnifies the need for a strong national safety net to protect the health and well-being of Americans, People For the American Way and Alliance for Justice today released a joint report, “Shredding the Social Safety Net: The Republican Plot to Use the Federal Courts to Destroy Public Health, Safety and Other Protections.”  The report details a key strategy in the right wing’s long-running mission to turn back the clock on social safety net programs that began with Franklin Delano Roosevelt’s New Deal and include such vital supports as Social Security, Medicare, Medicaid and the Affordable Care Act — as well as protections for workers, consumers, and the environment. That strategy has become focused on appointing highly ideologically conservative judges to the federal bench, to accomplish through their rulings what Republicans have found too unpalatable to pass legislatively: the destruction of decades of progress in assuring critical legal rights and protections for public health and safety. 

“The administration’s poor response to the coronavirus pandemic is only the latest proof that protecting the health and safety of the American people is not its first priority. Instead, the president and his Republican allies would prefer to use their extremist judges to turn the clock back a full century on essential protections that Americans now take for granted. They seek to dismantle not only access to health care, but also civil rights and protections for workers, consumers, and the environment. Serving only the desires of the wealthy and powerful, these Republican leaders are hoping the public won’t notice that they’re using the courts to do the dirty work they can’t accomplish through legislation. We intend to hold them accountable,” said Nan Aron, president of Alliance for Justice. 

“The coronavirus pandemic is bringing the need for a social safety net into sharp focus, but the right’s determination to destroy it predates today’s crisis by decades,” said Marge Baker, People For the American Way executive vice president for policy and program. ”What is really striking is how the strategy to use courts and judicial appointments to achieve this goal of destroying safety net programs has really taken off under Donald Trump.  The Trump administration and the Mitch McConnell-led Senate have created a perfect storm, in which Trump’s ignorance about courts and desire to placate his base combine with McConnell’s ruthless determination to carry out the far-right dream of crushing the legacy of the New Deal.”    

Among other things, the study finds: 

• Trump officials have been remarkably candid about their objectives. Early Trump adviser Stephen Bannon pledged the “deconstruction of the administrative state”– right-wing code for repealing the New Deal and shredding the social safety net. Former White House Counsel Donald McGahn publicly stated the administration had a “coherent plan” to pick federal judges who will gut federal laws, dismantle environmental protections, roll back civil rights and diminish worker and consumer protections. 
• Judicial nominees are being chosen on the basis of records that show their opposition to social safety net programs and a range of related rights. As catalogued by Alliance for Justice, scores of Trump’s judicial nominees are on record opposing protections for workers, consumers and clean air and clean water; civil rights, equality for women, LGBTQ Americans, and persons with disabilities; and access to quality health care – among other issues. 
• In terms of sheer numbers, the Trump administration’s efforts to “reshape the federal courts” have been remarkably successful. More than one out of every four federal appellate judges has now been appointed by Trump. About one-fifth of all federal judges have been appointed by Trump, with more pending.  
• The strategy is bearing fruit. Trump’s Supreme Court appointees, Neil Gorsuch and Brett Kavanaugh, have moved quickly to make rulings curtailing the rights of workers.  Lower-court rulings have invoked antiquated legal theories that privilege business interests to an extraordinary degree over those of consumers, and are attacking federal agencies’ independence — a key component of their ability to protect people and remain shielded from political pressure.    
• All five Republican-appointed Supreme Court justices have gone on record suggesting they are prepared to revive a decades-old doctrine that could devastate Congress’s ability to protect health, safety, and welfare.  This is known as the non-delegation doctrine,  and reviving it would mean that regulatory agencies like the EPA, the National Labor Relations Board (NLRB), OSHA and others could not use their expertise to protect the communities they were created to serve. 
• The Affordable Care Act has been especially endangered by the systematic appointment of anti-ACA judges combined with a litigation strategy to undermine it. In Texas v. U.S., Trump Fifth Circuit judge Kurt Engelhardt cast the deciding vote to rule that Congress did not have the authority to enact the ACA mandate to buy insurance. The ruling keeps alive a challenge to the entire Affordable Care Act, including protections for people with preexisting conditions.  The Supreme Court will review this decision in 2020-21. 
• The Supreme Court had an opportunity to consider the role of independent agencies recently when it heard oral arguments in its review of  the Ninth Circuit’s decision in Seila Law v. CFPB, which rejected a challenge to the important consumer protection agency.  If the Court reverses the Ninth Circuit’s ruling protecting the independence of the CFPB, the result could overrule past precedent and make it impossible for Congress to create independent agencies like the Federal Trade Commission (FTC) that are politically insulated from the president. It could also “unravel the CFPB’s decisions” protecting consumers since the agency was created nine years ago.