Republicans have failed to promote a single conservative fiscal reform to even tweak the growing welfare state, despite their promise to fight for welfare work requirements. But at least Republicans at a state level are promoting conservatism, right? Well, not if the courts are crowned king of the republic.
Courts have become the final arbiter of cultural issues and now even border and national security issues. Thus, it was only a matter of time before they ventured into fiscal/economic issues. Recently, several states have been conditioning Medicaid eligibility upon work requirements. Arkansas, Kentucky, and New Hampshire got a waiver from HHS to require that non-disabled beneficiaries under 65 show that they have completed a certain number of hours of work requirements or similar community engagement. The issue is popular with the public, but now, one man, Judge James Boasberg, has taken it upon himself to prevent every state throughout the country from enacting this commonsense reform.
Yesterday, D.C. District Court Judge James Boasberg, an Obama appointee, followed up on his injunctions earlier this year on HHS’ approval of Arkansas’ and Kentucky’s plan for work requirements, doing the same to HHS approval for New Hampshire. Earlier this year, New Hampshire adopted Granite Advantage Community Engagement, a program to require able-bodied adults to document 100 hours of work, schooling, job training, or volunteer work in order to apply for Medicaid.
“On their face, these work requirements are more exacting than Kentucky’s and Arkansas’s,” Boasberg wrote in his smug injunction order. “Yet the agency has still not contended with the possibility that the project would cause a substantial number of persons to lose their health-care coverage.”
But who says it is the role of this one judge to ascertain the purpose of the Medicaid program? As lawyers for Arkansas said in response to his ruling on their state’s rule in March, the “ultimate conclusion that Medicaid’s ‘core purpose’ is the mere perpetuation of coverage with no specific goal in mind conflicts with commonsense, text, and precedent.”
Boasberg deems HHS Secretary Azar’s waiver to New Hampshire “arbitrary and capricious,” even though both HHS and the state offered a thorough analysis of why work requirements would better preserve the Medicaid program in the state. Section 1115 of Obamacare allows the secretary to “waive compliance with any of the requirements” in that section in terms of expanding Medicaid to adults when experimenting with such programs to test better outcomes. How can one judge overrule what is inherently political discretion and disagreement over policy, not law?
These judges continue to forget that the role of a court is a shield, not a sword. Courts have “neither force nor will,” meaning they can’t legislate and they can’t appropriate benefits. That is the job of the other branches. They can grant relief to a plaintiff – a shield from punitive action taken against the plaintiff, such as a fine or imprisonment. There is no right to Medicaid, however, and even if a court were correct in its reading of a law, the executive branch is not bound by its decision to award and appropriate funds.
As Clarence Thomas articulated in the gay marriage case, “In the American legal tradition, liberty has long been understood as individual freedom from governmental action, not as a right to a particular governmental entitlement.” Yet now that judges have created a right for foreigners to immigrate and sue us in court, it’s not a stretch at all for them to create a right for Americans to be entitled to welfare. Absent such an implied right, the judge has no power to simply make up the purpose of Medicaid and decide such fundamentally political questions.
Not only have judges now been “appropriating” taxpayer funding for welfare and also redefining human sexuality, they have been doing both together. Last July, U.S. District Judge William Conley ordered Wisconsin taxpayers to fund sex-change “surgeries” for two individuals who suffer from gender dysphoria. One of them asked that her breasts be removed in her attempt at manhood. The judge ruled that Medicaid must cover it. What happened to the Hippocratic Oath? How is it that homosexual conversion therapy is illegal in so many states, yet courts can mandate the most gruesome forms of mutilation? In Conley’s estimation, the state’s outrageous understanding of, you know, basic biology “feeds into sex stereotypes by requiring all transgender individuals receiving Wisconsin Medicaid to keep genitalia and other prominent sex characteristics consistent with their natal sex no matter how painful and disorienting it may prove for some.”
These are the same courts that are saying Planned Parenthood, a private abortion and baby harvesting group, has a right to Medicaid funds.
Is there a single political issue that is a bridge too far for judicial intervention, or will the other branches of government and the states allow single district judges to accomplish more fiscal, social, and border policy than any party could hope to pass in a generation?
For far too long, much of the right-leaning libertarian legal movement only cared about economic issues, but not civilization and social transformation from the courts. They have declined to fight judicial supremacy head-on. But now judicial tyranny is threatening to engulf any issue anyone in the right-of-center coalition cares about.
It’s also important to note that the federal court in D.C. is the most important federal regional court in the country because it hears all of the political cases. Liberals will maintain an insurmountable majority, even if Trump serves for two terms. Democrat appointees enjoy an 11-4 majority on the district court and a 7-4 majority on the appeals court among active judges.
The U.S. Court of Appeals for the District of Columbia did grant HHS’ request for an expedited appeal in April on the Arkansas case, but given the orientation of the court, the odds are stacked against the state, and oral arguments don’t even begin until October.
Conservatives need to think long and hard about the purpose of fighting in politics if we are going to cede this much power to single district judges. What we fight for over the course of decades can be undone by the false notion of a judicial veto by a single judge at any moment, even when the issue does not touch a fundamental right in any way.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.