**Written by Doug Powers
Gloriously self-unaware and proud of it, former Obama adviser Susan Rice is really swinging for the shamelessness fences with this one:
Funny stuff coming from one of the early pioneers of “fake news.”
Projection: It’s not just for breakfast anymore!
Even better, Rice’s article is appearing in the Washington Post under this slogan:
**Written by Doug Powers
President Donald Trump is no stranger to conflict escalation. In his short time in office, he has managed to successfully escalate disputes against the media, immigrants and the intelligence community. Yet Trump’s most important escalation has been in the War on Terror, substantially increasing the U.S. commitment to wars in Yemen, Syria and elsewhere. Unfortunately, these steps are likely only to draw America deeper into some of the world’s most intractable conflicts.
Trump’s foreign policy approach during the campaign can be charitably described as incoherent. On the one hand, he openly admitted that the Iraq war had been a mistake, and repeatedly criticized the money wasted on pointless Middle East conflicts. These ideas, unorthodox for a Republican candidate but popular with the general public, helped to win him votes.
But on the other hand, candidate Trump often contradicted himself, calling for the use of overwhelming force in the fight against the Islamic State group, and promising a massive increase in U.S. military spending. The candidate’s militaristic worldview frequently came through in his off-the-cuff remarks, most memorably when he told a rally of supporters, “I love war, in a certain way.”
The president is doubling down on the Middle East quagmires he once criticized.
Sadly, since his inauguration, Trump has pursued the second of these two approaches. This choice — escalating U.S. involvement in a variety of conflicts — risks dragging his administration further into the very Middle Eastern quagmires he once railed against.
Media reports on Yemen have largely focused on the disastrous raid – apparently ordered by Trump over dinner - in which a U.S. Navy Seal and a number of Yemeni civilians were killed. But U.S. involvement is expanding in other areas too: the president recently loosened the military’s rules of engagement in Yemen, and has dramatically increased airstrikes against al-Qaida.
The new administration has also effectively doubled U.S. deployments to the campaign against the Islamic State group in Syria, adding 400 additional troops to the forces already deployed there. Like their counterparts in Iraq, these soldiers are tasked with providing support to local forces in northern Syria, but the mission has nonetheless resulted in the death of one marine, and the injuries of several others.
Trump is also considering escalation elsewhere: Another 2,500 paratroopers have been placed at a staging base in Kuwait to support the campaign against the Islamic State group. Meanwhile, military leaders responsible for the fight in Afghanistan have petitioned Congress and the White House for more troops, and the White House is considering loosening the rules of engagement in Afghanistan and Somalia.
Yet in each of these conflicts, additional military force is unlikely to improve the situation. In Yemen, U.S. raids and airstrikes focus on a resurgent al-Qaida and an emerging branch of the Islamic State group. Yet the two terror groups are growing primarily thanks to the Saudi-led war in Yemen, a war the Trump administration enables through air support and arms sales. Increasing military strikes treat the symptoms of Yemen’s turmoil, but leave the disease untouched.
In Syria, there is no clear strategy for U.S. forces. Though the military goal — the defeat of the Islamic State group and recapture of Raqqa — is obvious, basic political problems remain unresolved. Will U.S. troops will be involved in post-conflict stabilization work? Or will local actors be able to control retaken territory? Worryingly, U.S. forces in Syria have even been forced to physically place themselves between rival Kurdish and Turkish forces to prevent them fighting.
And there appears to be little strategic rationale to the president’s choices to escalate the War on Terror elsewhere. Increasing the number of U.S. troops in Afghanistan may lengthen the stalemate there, but it is unlikely to bring an end to America’s longest war. Even Trump’s budget, which proposes military spending increases and dramatic cuts to agency budgets, ignores the need for effective foreign aid and diplomacy in combating terrorism.
During his campaign, Trump railed against the excesses of U.S. intervention in the Middle East, noting “I don’t want to see the United States get bogged down. We’ve spent now $2 trillion in Iraq, probably a trillion in Afghanistan. We’re destroying our country.” Yet in the short time since his inauguration, he has chosen instead to escalate these conflicts. If Trump doesn’t want a legacy as the president who perpetuated America’s Middle East messes, he needs to change course soon.Emma Ashford is a Research Fellow at the Cato Institute.
Michael D. Tanner
As the husband and stepfather of accomplished artists, I take art very seriously. It is, in the words of President Kennedy, “close to the center of a nation’s purpose and a test of the quality of a nation’s civilization.” But for all that, Donald Trump is absolutely right in his desire to defund the National Endowment for the Arts (NEA).
According to its supporters, without the NEA, art in America would cease to exist. They have a point. Absolutely nothing can happen in this country unless the federal government funds or mandates it. Without Washington we are a wasteland. After all, the NEA wasn’t established until 1965, and before that there was hardly an American artist to be found. Well, except maybe people like Edward Hopper, Georgia O’Keefe, John Singer Sargent, Edmonia Lewis, Charles Sheeler, Mary Cassatt, Winslow Homer …
For many of the same reasons that we demand a separation of church and state.
The NEA’s budget is a paltry $138 million. By contrast, private philanthropy contributes more than $17 billion every year to support for the arts. Ticket and merchandise sales bring in another $12.7 billion. In fact, government sources at all levels, federal, state, and local, contribute less than 4 percent of arts funding.
What supporters of the NEA are really complaining about is a lack of funding for art that they like. The boobs and illiterates out there in Trumpland can’t be expected to understand or support “real” art. How could they possible fund art worth viewing? If you want to know why we are saddled with a President Trump, that attitude goes a long way toward explaining it.
But doesn’t government funding provide an imprimatur of approval that can be leveraged for additional support? Perhaps. But that’s exactly why the government should not be in the art-funding business. The government shouldn’t be in the business of approving or disapproving any type of expression.
Art is deeply personal. It touches the core of our being, and helps form our outlook on the world, even our fundamental belief systems. That is one reason why authoritarian regimes have long sought to control art, repress it, or use it for propaganda. For many of the same reasons that we demand separation of church and state, we should want the separation of art and state. It is more difficult to speak truth to power when power pays your bills.
It is true that the NEA’s ability to withhold funding based on content has been limited since the Supreme Court’s decision in NEA v. Finley (1998). But that doesn’t mean that the NEA doesn’t pick and choose guided by prejudices and preconceived notions. Even when its decisions don’t reflect politics or a particular worldview, it’s funding can be determined by the artistic vogue of the day — abstract or avant-garde art, performance, minimalist, video, you name it, rather than figurative art or realism in general — as has been the trend over the last few decades. Like other viewers and consumers, I have my own preferences and biases about types of art I like. The government shouldn’t.
Nor should we count on the NEA to nourish new artists or those trying to challenge the art establishment. Following a series of embarrassments in the 1990s, the NEA stopped funding individual artists. Today, its money goes to arts organizations and programs that have their own built-in rigidities. In many ways, the NEA simply rubberstamps the artistic status quo. That’s ultimately bad for the arts and artists.
Federal spending on the NEA is little more than a drop in a vast ocean of red ink. It is hardly the most egregious use of taxpayer money. But it is a prime example of how government distorts and corrupts nearly everything it touches. If we truly care about art, we should want the government to keep its hands off.
There are many reasons to be disappointed with Trump’s spending cuts. They don’t actually cut spending, for example, but just shift it around. But if this latest budget proposal starts a serious debate about finally eliminating those programs that the federal government should never have gotten involved with in the first place, it will have performed a valuable service.Michael Tanner is a senior fellow at the Cato Institute and the author of Going for Broke: Deficits, Debt, and the Entitlement Crisis.
If Monday’s hearing was about the Democratic senators’ telegraphing their lines of attack on Judge Neil Gorsuch, Tuesday’s was about how those messages weren’t reaching their target—assuming that target was building political opposition to the nomination. Different senators tried different tones—strident (Dianne Feinstein, D-CA), bumbling (Pat Leahy (D-VT), condescending (Dick Durbin, D-IL), angry (Sheldon Whitehouse, D-RI), prosecutorial (Amy Klobuchar, D-MN), absurdist (Al Franken, D-MN), alarmist (Chris Coons, D-DE), workmanlike (Richard Blumenthal, D-CT), and redundant (Mazie Hirono, D-HI)—and all failed to slow down the Gorsuch Express.
But speaking of telegraphs, trains, and other old machines, several senators, notably Feinstein and Klobuchar, tried to hoist Gorsuch on his originalist petard. They did so by implying—and sometimes saying outright—that “no originalists need apply” because that would mean segregation, female ineligibility for public office, the end of any rights for “LGBT … Q … individuals” (as Durbin put it), and much else that wasn’t even bad enough for “Robert Bork’s America.”
Several senators, notably Feinstein and Klobuchar, tried to hoist Gorsuch on his originalist petard.
So of course a philosophy grounded in the meaning of the Constitution at a time when telegraphs and trains didn’t exist, let alone iPhones and airplanes, is obsolete.* For Gaiasake, the Second Amendment only protects muskets, amirite?
This is just the latest in a bizarre trend of non-originalists’ trying to explain (“progsplain”?) to originalists what they purport to stand for. This isn’t the place to go into it, but suffice it to say, a power to “regulate interstate commerce” is readily transferable to the world of modern telecommunications and travel—and for similar reasons that power shouldn’t extend to marijuana plants grown for personal consumption (or even local sale) or, say, health insurance contracts.
Originalism simply isn’t an inquiry into what James Madison thought about violent video games or whether Thomas Jefferson would’ve attached GPS devices onto his slaves, mkay?
Even beyond that bizarre line, and the repeated attempts to get Gorsuch to denounce Donald Trump—“bad president, or worst president?” as Senator Stephen Colbert would ask—were the nonsensical invocations of Citizens United and Chevron. Whitehouse banged on about “dark money.” As if the New York Times article describing the groups behind the pro-Gorsuch campaign didn’t name names and link to a list of Federalist Society donors (including me; I admit, I’m a card-carrying member of that “far-right extremist” organization).
Franken later argued that cutting back on Chevron—the 1984 case that stands for judicial deference to administrative agencies—would mean that senators and judges would set environmental and consumer-product-safety standards. It would actually mean that Congress has to be more specific with its legislation, so bureaucratic experts only make scientific determinations, not legal ones. And I didn’t realize that Stuart Smalley was so concerned about making sure that Scott Pruitt gets to implement his full agenda at the EPA.
It was left to Ted Cruz (R-TX) and Ben Sasse (R-NE) to educate the public and draw Gorsuch out of his shell. Tales of mutton-busting and Little League umpiring—as well as the return of the “black robe”—provided some welcome levity to what I’m sure is becoming a frustrating effort to derail a first-class jurist.
* Actually, proper originalism is done with respect to “the right time,” meaning when the relevant provision was ratified, so 1789 for Article I, 1868 for the Fourteenth Amendment, 1967 for the Twenty-Fifth Amendment, etc. Technological development is irrelevant regardless.Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute.
Michael F. Cannon
President Trump pledged during the presidential campaign to deliver legislation that “fully repeals Obamacare.” By forcing the House to a vote on a bill that does not repeal the health insurance regulations that are the driving force behind the Affordable Care Act’s skyrocketing premiums and low-quality coverage, Republican leaders are abandoning the president’s pledge. The leadership bill would only modify those regulations. As a result, the Congressional Budget Office projects, it would increase premiums 15-20 percent above their already-high levels and leave more people uninsured than full repeal would.
House leaders claim Senate rules require a 60-vote supermajority to repeal the regulations, which Republicans do not have. So they crafted a bill they say can pass the Senate with a simple, 51-vote majority.
That explanation holds less water than a leaky bucket.
The leadership bill would modify those regulations, so, according to their own theory, it too would require 60 votes.
The House leadership is just wrong. Senate rules indeed allow repeal of the Obamacare’s regulations with just 51 votes.
The Obamacare’s health insurance regulations are “terms and conditions” of government spending. Senate rules allow the Senate to repeal the terms and conditions attached to government spending, along with that spending, by a simple majority. If the Senate removes all Obamacare spending from the federal budget, Senate rules allow it to remove those regulations as well.
The House leadership is just wrong.
Even as applied to health plans that do not qualify for exchange subsidies, those regulations enable and regulate government spending. Indeed, every relevant authority agrees that those regulations and that spending are not severable statutory provisions but parts of a single, integrated program — what the Supreme Court calls the ACA’s “comprehensive national plan to provide universal health insurance coverage.”
Indeed, the regulations are terms and conditions of government spending even when applied to health insurance plans that are ineligible for exchange subsidies. The CBO found the Obamacare’s comprehensive overhaul of private health insurance plausibly transforms those markets into a government program, and transforms all private health insurance expenditures into government expenditures.
When all spending is governmental, all regulations are terms and conditions of government spending. Republicans, in particular one soft-spoken fly-fisherman from Wyoming, can make the federal budget reflect that these regulations are, in all cases, terms and conditions of government spending.
Simple vs. super
Senate rules require a simple, 51-vote majority to pass bills. But getting to a vote on final passage requires ending debate on a bill, which usually takes 60 votes. Since Republicans hold just 52 seats, Senate Democrats can generally filibuster any bill they want.
So-called “budget reconciliation” bills, in which Congress approves the government’s budget, are different. Debate over these bills ends automatically, so there can be no filibuster. Budget reconciliation bills can therefore pass the Senate with just 51 votes.
But this exception comes with a catch. Every provision in a budget-reconciliation bill must produce a change in revenues or outlays, and those changes cannot be “merely incidental to the non-budgetary components of the provision.” If the Senate parliamentarian rules a provision’s effect on revenues and outlays are merely incidental to its primary effect, the provision typically falls.
Last year, the Senate parliamentarian ruled senators can repeal the ACA’s spending, and effectively repeal its individual and employer mandates, via reconciliation with a simple majority. The parliamentarian has not ruled on whether the Senate can repeal the regulations in a reconciliation bill with a simple majority.
“Terms and conditions”
Another well-established Senate rule allows a reconciliation bill that eliminates government spending to repeal the “terms and conditions” attached to that spending, also by a simple majority.
Last year, for example, the Senate approved a reconciliation bill that would have eliminated funding for Obamacare’s expansion of the Medicaid program. The parliamentarian ruled that because the bill eliminated that spending by a simple majority, it could likewise repeal the terms and conditions federal law attaches to that spending by a simple majority. (President Barack Obama vetoed the bill.)
The parliamentarian has ruled the Senate may repeal, with just 51 votes, the billions of taxpayer dollars the ACA sends to private insurance companies participating in Obamacare’s health insurance exchanges. As with the Medicaid expansion, the ACA imposes explicit “terms and rules” on this spending. In particular, the federal government may only issue subsidies to insurers who comply with the all the ACA’s health insurance regulations.
For example, exchange subsidies are available only for “qualified health plans,” which must conform to all of the ACA’s various health insurance regulations. Indeed, the sole purpose of the “qualified health plan” designation is to create a category of health plans that qualify for federal subsidies—i.e., to establish terms and conditions for federal spending. Every regulation federal law imposes on qualified health plans is, therefore, a “term and condition” imposed on government spending.
Those terms and conditions include regulations requiring qualified health plans to cover certain “essential” health benefits; to limit cost-sharing as specified in the statute; to conform to specified actuarial values; to notify enrollees if the plan covers abortion services; to “ensure a sufficient choice of providers”; to avoid “marketing practices or benefit designs that have the effect of discouraging … enrollment … by individuals with significant health needs;” and to meet other requirements.
Compliance with these regulations is a condition for certification as a qualified health plan, and that certification is a condition the ACA imposes on federal spending. Obamacare’s health insurance regulations are therefore explicit terms and conditions Congress imposes on federal outlays. Senate rules, therefore, permit a simple majority to repeal those regulations along with that spending.
Regulating government spending
But if these regulations are merely terms and conditions of government spending, why do they also apply to unsubsidized qualified health plans sold on the exchanges, through the law’s small-business exchanges, and on the non-exchange individual market? And why do some regulations apply to further categories of unsubsidized plans, including so-called “grandfathered” individual-market plans and large-employer plans?
To the casual observer, the fact that these regulations also apply to plans that do not qualify for exchange subsidies might make it seem that the regulations, and legislative provisions repealing them, are not budgetary in nature. Yet the application of these regulations to unsubsidized plans enables and regulates outlays on subsidized plans. It is an integral part of the system of exchange subsidies because it controls the budgetary impact of, and thereby enables and sustains, those subsidies.
Consider just one of the “terms and rules” the ACA imposes on exchange subsidies. The ACA requires insurers who sell qualified health plans on an exchange to charge identical premiums on the off-exchange individual market. The purpose of applying this price control to unsubsidized, off-exchange plans is to contain federal spending on subsidized, exchange plans.
Absent this price control, insurers could trigger adverse selection against exchange plans by using lower premiums to attract healthy enrollees to off-exchange plans. Risk pools within the exchanges would become sicker, and premiums would rise. Federal spending would also rise, because exchange subsidies automatically rise along with premiums. Already, this one relatively minor regulation shows both that the ACA’s health insurance regulations have more than a merely incidental impact on government spending, and that they regulate government spending.
Yet the budgetary impact of this one minor regulation is greater still. Absent this price control, exchange subsidies could disappear.
As premiums for exchange plans rose, additional healthy consumers would leave the exchanges, until adverse selection ultimately drove out all of the insurers. Without any carriers offering qualified health plans on the exchange, there can be no subsidies. This relatively minor regulation is thus essential to the existence of the ACA’s exchange subsidies.
What is true of this minor pricing regulation is even truer of the ACA’s major regulatory provisions, including its guaranteed-issue, community-rating, and essential-health-benefits requirements. The ACA imposes these regulations on unsubsidized plans because adverse selection would otherwise make subsidies impossible.
Proof has emerged in east Tennessee, where, despite all these regulations, adverse selection has driven every last carrier from the exchanges in 16 counties. Some 43,000 current exchange enrollees now have no exchange plan options at all for 2018. Were it not for the ACA’s application of these regulations to unsubsidized plans, the exchanges would have collapsed earlier and in more areas. Whether or not it works, the primary purpose of applying the regulations to unsubsidized plans is to enable federal subsidies by reducing adverse selection.
None of this is news to the ACA’s architects. They knew that subsidizing exchange plans requires regulating unsubsidized plans. They regulated subsidized and unsubsidized plans alike for that purpose.
An obvious counterargument arises. The purpose of regulating non-exchange plans, one might argue, is not to facilitate subsidies but to provide protections to consumers enrolled in unsubsidized plans. Yet the counterargument illustrates the point.
Applying the regulations to unsubsidized plans prevents adverse selection by requiring healthy consumers to buy protections they would prefer to trade away in exchange for lower premiums. Prohibiting such trades leaves healthy enrollees worse off, not better off. This counterargument ironically argues against itself, because it demonstrates the primary purpose of regulating unsubsidized plans is not to benefit enrollees in unsubsidized plans but rather to facilitate subsidies. If there are any benefits that enrollees in unsubsidized plans enjoy, they are, to borrow a phrase, merely incidental.
The primary purpose of the ACA is to subsidize patients with expensive medical conditions. The primary purpose of its health insurance regulations is to enable those subsidies and to impose terms and conditions on federal spending. Senate rules allow repeal of those regulations with a simple majority because repeal eliminates rules enabling and governing federal subsidies.
A single, integrated program
Indeed, it is a mistake to regard these regulations as severable legislative provisions. The ACA’s authors, advocates and even the Supreme Court have long maintained they are the inseverable component parts of a single, integrated program.
The ACA’s authors famously did not include language allowing courts to sever the regulations from other elements of that program. The statute itself explains the regulations are inextricably connected to the whole when it says the mandate “is essential to creating effective health insurance markets in which improved health insurance products that are guaranteed issue and do not exclude coverage of pre-existing conditions can be sold.”
Many of the ACA’s authors — including Sens. Harry Reid, D-Nev.; Tom Harkin, D-Iowa; Dick Durbin, D-Ill.; Patty Murray, D-Wash.; Chuck Schumer, D-N.Y.; and Ron Wyden, D-Ore.; and Reps. Nancy Pelosi, D-Calif.; John Conyers, D-Mich.; Steny Hoyer, D-Md.; and Henry Waxman, D-Calif. — went so far as to file a brief before the Supreme Court in which they explained that the law’s subsidies, “the individual mandate[,] and the insurance reforms ensuring coverage of pre-existing conditions, preventing arbitrary terminations, and addressing other well-known insurance industry abuses” were all part of one “interdependent statutory scheme.” They flatly rejected the idea that the regulations are, or that they intended the regulations to be, regarded separately from the rest of that scheme.
The Obama administration filed a brief with the Supreme Court that explained regulations are part of an “interdependent,” “interlocking” and “integrated” set of measures that are “designed to function together” as “a comprehensive program.” Years later, another Obama administration brief reaffirmed the regulations are an “inseverable” part of that program.
In 2012, the Supreme Court ruled that the ACA’s private-insurance overhaul is not a set of separate provisions but a single program that, combined with the Medicaid expansion, creates “a comprehensive national plan to provide universal health insurance coverage.” In 2015, a six-justice majority, including all four Democratic appointees, explicitly rejected the idea that the regulations are separable from the broader coverage-expansion scheme. The regulations, the court wrote, are part of an “interlocking” and “intertwined” program that “would not work” without each of its component parts. The Court explicitly wrote that it is “implausible” to view the regulations as independent or separable from the exchange subsidies.
A government takeover
The CBo regarded the ACA’s private-insurance overhaul as a single, integrated program — so much that the agency very nearly ruled that program turns private health insurance into a government program.
In 1994, the CBO determined that a legislative proposal substantially similar to the ACA constituted a government takeover of private health insurance markets. Under a Democratic director named Robert Reischauer, the agency concluded President Bill Clinton’s Health Security Act was in effect a government takeover of health insurance — even if markets remained nominally private, even if the bill allowed some individual choice, and even if the public thought it wasn’t a government takeover. As a result, the CBO determined that under the Clinton health plan, all financial transactions involving “private” health insurance should appear in the federal budget.
Given the ACA’s similarities to the Clinton health plan, 53 percent of Americans considered it a government takeover at the time Congress enacted it. Yet the ACA’s authors carefully gamed CBO scoring rules to avoid that designation. ACA architect Jonathan Gruber would later explain, “This bill was written in a tortured way to make sure CBO did not score the mandate as taxes. If CBO scored the mandate as taxes, the bill dies.”
It worked, but only barely.
The CBO found the ACA to be an extremely close call. Just one tiny change, the agency wrote, “would make [health] insurance an essentially governmental program, so that all payments related to health insurance policies should be recorded as cash flows in the federal budget.” The CBO stresses its determination is hardly definitive, describing it as “a matter of judgment” as well as “strictly advisory.”
A more honest baseline
The CBO’s acknowledgment that the ACA is plausibly a government takeover of health insurance points to a way opponents of the law can illustrate that Senate rules allow repeal of the regulations by a simple majority.
Under Senate rules, the chairman of the Senate Budget Committee determines which spending and revenue baselines the chamber will use when considering a reconciliation bill. The chairman, therefore, determines the baseline against which the Senate parliamentarian considers whether legislation repealing the ACA’s overhaul of private health insurance is budgetary in nature.
The current chairman, Sen. Mike Enzi, R-Wyo., has the authority to determine the CBO erred in 2009 by not designating ACA as a federal takeover of private health insurance and including all relevant financial flows in the federal budget. Given that the ACA has eliminated the individual market exchange in 16 counties (so far), the case is even stronger now that the ACA is a federal takeover than it was then.
Enzi could then direct the CBO to produce a baseline with “all payments related to health insurance policies…recorded as cash flows” in the federal budget. The Trump administration could jumpstart the process by directing the Office of Management and Budget to treat the ACA the same way in its budget accounting.
Against the backdrop of that more honest baseline, a reconciliation bill provision eliminating the ACA’s health insurance regulations obviously would be budgetary in nature: repealing the regulations would be a necessary component of removing those financial flows from the federal budget. Over a 10-year window, the budgetary impact could reach into the tens of trillions of dollars.
That step would make it painfully obvious that legislation repealing the ACA’s health insurance regulations is inherently budgetary in nature. But that step should not even be necessary.
Title I of the ACA contains the law’s overhaul of private health insurance markets. It is not a list of discrete provisions. It is a complex set of interdependent provisions that work together to create a single, integrated program—a new health insurance system.
The ACA’s health insurance regulations are an essential and inseparable part of that new program. They create terms and conditions for on-budget federal spending on exchange subsidies. They enable and regulate federal spending on exchange subsidies by controlling adverse selection within and across health insurance markets. And because, as the CBO acknowledges, the ACA is plausibly a government takeover of health insurance, the Senate can determine they likewise create terms and conditions for off-budget federal revenues and outlays.
The proof is right there in the statute. All sides agree repealing the regulations would produce changes in revenues and outlays. If one considers the regulations discrete provisions, one might imagine the primary purpose of repealing them is to remove restraints on private actors, and that the resulting budgetary effects are merely incidental.
Yet the budgetary effects would be anything but incidental: subsidies for exchange plans would disappear, because there would no longer be any federal definition of qualified health plans could satisfy to become eligible for subsidies. This alone demonstrates the regulations are terms and conditions of government spending.
To claim the Senate may repeal the ACA’s spending by a simple majority but not its insurance regulations is equivalent to saying a simple majority may repeal all spending on Medicare or the Medicare Advantage program, but not the rules governing pricing, benefits, and spending in those programs. Not only do Senate rules allow repeal of the ACA’s regulations with just 51 votes via reconciliation, but it is the appropriate mechanism for repealing them.
House Republican leaders nevertheless seem determined to make that chamber vote on a bill that does not even attempt to keep President Trump’s promise of full repeal. They are giving up on repeal of the ACA’s most harmful provisions before even making their case to the Senate parliamentarian, who interprets the rules, or the presiding officer, who decides whether the Senate adopts the parliamentarian’s recommendation.Michael F. Cannon is the director of health policy studies at the Cato Institute.
It’s all over but the voting. Judge Neil Gorsuch survived his second and final day of having to listen to senators pontificate and now is well on his way to becoming Supreme Court Justice Gorsuch.
To be fair, there were plenty of occasions where he was less forthcoming than even previous nominees, like when asked whether this or that ancient case was correctly decided or how to interpret particular constitutional clauses. By my count, he took all of four firm legal positions during his testimony: (1) banning Muslims from the U.S. Army would be unconstitutional; (2) Marbury v. Madison (1803), which established judicial review, was correct; (3) Brown v. Board of Education (1954) was a vindication of the Constitution’s original meaning; and (4) Griswold v. Connecticut (1965), on the right to privacy, was a “seminal” precedent. Not exactly going out on a limb.
He also made the sound choice to endorse skiing over snowboarding, but declined to say whether he would prefer to fight a horse-sized duck or 100 duck-sized horses. (Sen. Jeff Flake, R-Ariz., asked questions posed by his relatives.)
What we’re left with is a clear difference between the parties about the proper way to interpret the law, which is where we started.
So Gorsuch didn’t thread the needle of revealing his judicial philosophy in a way that wouldn’t create headlines, but that’s mostly because he didn’t have to. This is how the game is played when the party of the president who nominated you also controls the Senate.
At the end of it all, the Democrats were left grasping at straws. First, they spent considerable time questioning Gorsuch about a Supreme Court ruling that came out during the hearing, implying that the unanimous high court had reversed him personally. In actuality, this was a course correction overturning a Tenth Circuit precedent that Gorsuch had dutifully followed in other cases—in the area of education law, though Sen. Dick Durbin, D-Ill., made sure to caution that of course he wasn’t insinuating animus against children.
Second, there were stern lines of inquiry about Gorsuch’s participation in the development of the Bush-era enhanced-interrogation program, during his brief stint at the Department of Justice. This essentially went nowhere; I didn’t even see any blaring headlines on activist websites about how Gorsuch ghostwrote the “torture memos” or the like.
Finally, there was the return of the “little guy” trope, this time most consistently by Sen. Al Franken, D-Minn., who railed about the Roberts court’s ruling to enforce arbitration agreements. Sen. Ben Sasse, R-Neb., later offered to co-sponsor legislation with Franken to fix some of the parade of horribles that the current state of the law apparently produces—which is the right response and has nothing to do with the judicial role.
And that was about it. At least we also got to witness Sen. Amy Klobuchar, D-Minn., have her exchange about antitrust; as someone who spent part of his brief stint in private practice litigating in that area, I appreciated that.
What we’re left with is a clear difference between the parties about the proper way to interpret the law, which is where we started. As Franken said on Monday, “While no one can dispute Scalia’s love of the Constitution, the document he revered looks very different from the one that I have sworn to support and defend.”
Now the Democrats are apparently floating a “deal” of “allowing” Gorsuch to get through if Republicans (just three are needed) promise not to get rid of the filibuster for the next nominee. Good luck with that: Gorsuch is getting through anyway and, as we also knew going in, the next battle—with a Trump nominee potentially replacing Justice Kennedy or Ginsburg—is the one that counts.Ilya Shapiro is a contributor to the Washington Examiner’s Beltway Confidential blog.