E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Crisis is Exposing the Harm Structural Attacks on Anti-Poverty Programs Have Done
David Super
Public spending
programs consist of two main elements:a
structure, and a stream of money that is spent through that structure.This is true of defense programs:you need a decision that what you want to
build is an aircraft carrier and then several years of funding while the
carrier is built.This is true of Social
Security, which has a retirement age, relationship criteria for survivors’
benefits, and a standard for the severity of disabilities required to receive
benefits on that basis as well as a dedicated funding stream.
This gives programs’
opponents two possible targets.Those
opposed to an arms race in space could try to prevent President Trump from
establishing a coherent Space Force or seek to block its annual appropriations.Opponents of a southern border wall erred
many years back in agreeing to legislation authorizing it to be built, likely
assuming that no one would be crazy enough to fund such a wasteful and
ineffective undertaking.The
decarceration movement can seek to block or reduce prison sentences or hope
that starving corrections budgets will create pressure for early releases.
The same choices
have always faced opponents of anti-poverty programs.For those preferring to spend money on other
things – tax cuts, spending programs popular with more-affluent voters, or
whatever – the most natural move would seem to be cutting programs’
spending.And cut we have on many
occasions at both the federal and state levels. The savviest, most
strategic opponents of these programs, however, have recognized that the long-term
consequences of dismantling those programs’ structures were far greater.Rather than pay the political price of defunding
the Great Society directly, Richard Nixon attacked those programs’ structures
by converting many of them to block grants.Because state and local governments’ use of block grants rapidly
diverges, and because some inevitably will do foolish things with some of the
money, degrading the structures that target funding effectively will facilitate
subsequent attacks on the programs’ funding.Ronald Reagan similarly merged and block-granted numerous anti-poverty
programs.President Reagan also,
however, also sought deep cuts in these programs to pay for his tax cuts and
defense build-up.
House Speaker Newt
Gingrich shifted the focus decisively toward destroying programs’ structures.He sought to block-grant part or all of most
major anti-poverty programs.When this
proved too much even for many of his committee chairs, he settled for deep cuts
and more modest dismantlement of the structures of some programs.For example, although he relented on
block-granting food stamps, he insisted on deep benefit cuts that rose to almost
one-fifth by the sixth year, eliminating five of the six inflation adjustments
in the program’s eligibility and benefit formulas.The 1996 welfare law that he spearheaded also
removed the much of two substantial groups of low-income people, legal
immigrants and childless working-age adults, from food stamps.
In the current
crisis, these structural changes have proven particularly devastating.Where a program was merely underfunded,
increasing benefits is an option, albeit one that the Administration and Senate
Republicans often have resisted.Where,
however, a program’s basic structure has been weakened or destroyed, no conduit
is available for any funds Congress might wish to grant.
Thus, for example,
many legal immigrants and childless adults are receiving no public benefits and
hence have no connections with social service agencies.Although in theory they could have their
eligibility restored, getting the word out takes time and reestablishing their
connection with agencies is difficult with offices shut down and demands for
assistance skyrocketing.
Similarly, dogged
resistance to updating Unemployment Compensation for the last half-century of
changes to the workforce meant that we entered the crisis with only about 30%
of the unemployed receiving UC.The
CARES Act dramatically expanded eligibility through a combination of tweaks to
the current system and creating a new federal Pandemic Unemployment Assistance (PUA)
program for those not qualifying for regular UC.But because so many workers have been outside
UC’s reach, states’ automated systems were not programmed, and staff are not
trained, to assist them.Two months into
the crisis, many states have yet to make PUA operational, much less work
through the huge backlog of applications (and people who were prevented from
applying or turned down under old rules).
When the Supreme
Court voided the Affordable Care Act’s expansion of Medicaid eligibility, many
red states refused to implement it.This
resulted in many more uninsured people, many of whom had no contact with social
service agencies.This makes the
provision of COVID-19 testing and treatment for them operationally very
difficult.Congress allowed states to
establish a new category of Medicaid eligibility solely for COVID-19 testing,
but to date only states that had already expanded
Medicaid under the ACA have taken
up the option.It also has provided $176
billion for hospitals, largely as block grants but with some money to reimburse
care for specific uninsured patients.Lacking any structure for such a program, questions abound about what
the block grants will accomplish and whether the hospitals with the greatest
need will receive the funds.
Perhaps most
strikingly, with social service agencies out of touch with so many low-income
people, Congress assigned the Internal Revenue Service to distribute emergency
relief checks.The IRS did this based
upon tax returns for prior years, an exceedingly bad proxy for need:jobs held in 2018 may have been long-gone
even before the crisis and the poorest of the poor are not required to file returns.The IRS eventually succumbed to pressure and
agreed to provide checks to recipients of Social Security, Railroad Retirement,
Supplemental Security Income, and certain Veterans’ Administration benefits,
but even here it has largely made unavailable the additional amounts Congress
provided for dependents.Persistent
attacks on providing any assistance to low-income immigrants have resulted in denying
relief checks to U.S. citizen children if their parents do not meet the
Treasury Department’s immigration status test.
That still left
out another twelve million people too poor to be required to file income tax
returns.Nine million of those could have
been reached if the Administration had worked to distribute relief checks to
all those enrolled in the Supplemental Nutrition Assistance Program (SNAP, the
successor to food stamps) and Medicaid.The
remaining three million have no connection with major human services agencies,
largely because we have rendered them ineligible.
As a nation we
will never agree on the level of support appropriate for low-income people.Critics likely will feel these programs get
too much; progressives will see them as underfunded.But quite apart from spending levels, the relentless
structural attacks on these programs have left us largely incapable of helping many
of the poorest of the poor even when a temporary consensus forms in favor of
doing so.It would be naïve to hope that
these programs will not face budget cuts in the future, but we should resolutely
oppose persistent efforts to destroy these programs’ structures or to expand
the ranks of those with whom the social service system refuses all contact.