For years, Medi-Cal patients’ access to doctors has been limited, especially for those who need specialty care or live in rural areas.
California’s low physician reimbursement rates are partly to blame. The 2017-18 state budget includes a 2.5 percent increase in reimbursements — the first increase since 2001 and totally dependent on new tobacco tax revenues.
There are other options worth considering. Interstate telemedicine would allow an expansion of Medi-Cal services at current reimbursement rates.
If California doctors won’t take Medi-Cal patients, why not let out-of-state physicians provide services?
If California doctors won’t take Medi-Cal patients, why not let out-of-state physicians provide services? Rents and salaries are lower in some states, which is why call centers are in the Midwest.
California could allow physicians licensed in other states to enroll as Medi-Cal providers to offer telemedicine services without obtaining a California license, which is expensive and time consuming.
Why would state legislators block out-of-state physicians? According to the physicians’ lobby, the goal of licensing regulations is not to protect them from competition but to ensure high-quality care.
But state medical boards don’t protect patients from low-quality care and are notoriously bad at disciplining doctors. Instead, quality assurance comes from efforts by health care providers to protect their reputations and to avoid liability.
The U.S. Department of Veterans Affairs, whose problems providing care have made national headlines, will soon allow its physicians to practice telemedicine in any state. Why shouldn’t California do the same for Medi-Cal patients?
The Legislature should end the requirement that out-of-state physicians secure a California license to provide telemedicine care to Medi-Cal patients. Not only would such as change expand options for Medi-Cal recipients, it would let the state experiment with interstate telemedicine, which has the potential to make health care more accessible and less costly for all Californians.Shirley Svorny is a professor of economics at California State University, Northridge, and an adjunct scholar at the Cato Institute.
A. Trevor Thrall and Erik Goepner
President Trump’s objective of getting North Korea to abandon its nuclear arsenal is clear. His strategy for achieving that goal, however, is not.
Even less clear are Trump’s communications to the world, and North Korea, about American intentions. He has flip-flopped and changed his tune on North Korea multiple times in just his first 10 months in office, making it impossible for anyone to know what he will do next. Effective foreign policy, on the contrary, requires the president to signal credible and consistent assurances to allies and threats to adversaries.
Trump’s recent trip to Asia and his designation of North Korea as a state sponsor of terrorism, unfortunately, reveal either an inability or disinclination to conduct foreign policy in this manner. The consequences of Trump’s inconsistency are potentially dire.
Prior to the 2016 election, then-candidate Trump characterized his North Korea strategy as “What I would do very simply is say, China, this is your baby. … You solve the problem.” Months later the president appeared to abruptly end that strategy, tweeting, “I greatly appreciate the efforts of President Xi & China to help with North Korea, it has not worked out. At least I know China tried!” During his recent trip to Asia, however, the president changed back to an earlier refrain: “China can fix this problem quickly and easily.”
On the diplomatic front, in June of this year Trump noted, “The era of strategic patience with the North Korean regime has failed, many years it has failed. Frankly, that patience is over.” A month later he offered an answer to what might come next: “North Korea best not make any more threats to the United States,” or else “[t]hey will be met with fire and fury like the world has never seen.”
Then, during his recent Asia trip, he again changed course. Instead of elaborating on his implied military threat and trying to amplify its coercive power, Trump called for “progress, not provocation … stability, not chaos, and … peace, not war.” Those words sounded a lot like a call to the hard and slow work of diplomacy. Bolstering that notion, during the trip Secretary of State Rex Tillerson indicated that Trump had invited the North Korean regime to direct negotiations; an extension, perhaps, of the “direct contact” that Trump appeared to have ruled out previously but that the secretary said had in fact been ongoing.
But again on Monday, Trump reversed course yet again, declaring North Korea a state sponsor of terrorism and imposing further sanctions on the regime.
So what is the Trump administration’s strategy towards North Korea? Does China play a critical role or not? Have diplomatic means and patience been abandoned? Is the U.S. prioritizing direct talks with the North Korean regime or will only threats and force resolve the situation? In the past year, the president has suggested the answer is “yes” to each of those strategic options. At times, he has said both yes and no to the same option at the same time.
If Americans cannot determine what the president’s strategy is, then how can the North Korean regime? Media reports indicate that the North Koreans are indeed confused by Trump and have contacted former American officials trying to ascertain what exactly Trump is doing.
Trump’s defenders argue that his vacillations are strategic, designed to pressure North Korea into negotiations by threatening “devastating” attacks. But Trump’s threats have been anything but clear and credible.
Not only does North Korea have trouble understanding Trump, his threats are in fact empty. Analysts agree the United States has no real military option at this point. According to a Pentagon assessment and other analyses, any attempt to eliminate North Korea’s nuclear arsenal by force would require a ground invasion, likely resulting in hundreds of thousands of deaths in the first few days of conflict and creating a significant risk that North Korea would use nuclear weapons against Seoul and Tokyo.
Nor is there any reason to believe that re-designating North Korea a sponsor of terrorism or imposing additional sanctions will have much impact. Indeed, the very fact that North Korea was able to develop nuclear weapons while laboring under heavy sanctions over decades makes clear how unlikely it is that additional penalties will encourage Kim Jong Un to change course.
In light of the facts, Trump’s rhetorical inconsistency makes conflict more likely, not less. If the North Koreans can’t figure out what Trump’s strategy is, but they start to believe his threats about using military force, then the risk of a North Korean pre-emptive strike rises significantly. The risk of U.S. miscalculation also rises. If North Korea begins preparations to defend itself against what it believes is an imminent American attack, the United States might misread the signs and think North Korea was about to attack, thus setting off a conflict that neither side desired.
Instead of flip-flopping between approaches, the president needs to focus on sending North Korea consistent and clear messages. If he doesn’t, Kim Jong Un could miscalculate, and that’s a nuclear mistake we cannot afford.Erik Goepner, a retired colonel from the U.S. Air Force, is a visiting research fellow at the Cato Institute. A. Trevor Thrall is a senior fellow at the Cato Institute’s Defense and Foreign Policy Department and associate professor at George Mason University’s Schar School of Policy and Government.
President Trump was elected on the promise to make America great again. As best as one can decipher from a campaign that consistently contradicted itself and was headed by a candidate with no real foreign policy experience, this meant prioritizing U.S. interests and security and improving America’s standing in the world.
Russia and China’s growing assertiveness, fears over terrorism and cyber security, and costly military quagmires Afghanistan and Iraq certainly indicated a need to reassess American foreign policy. Yet, after a year in office, it remains unclear how the president’s approach to foreign policy will accomplish this reassessment. The bigger question: what are the core principles of Trump’s foreign policy? And how have these principles affected U.S. interests and status in the world?
The Trump Doctrine seems to consist of three characteristics: protectionist trade policies (dubbed “economic nationalism”), cracking down on immigration in the name of security (e.g., the current travel ban), and basing foreign policy decisions on personal relationships rather than strategic interests.
A year of the Trump Doctrine has not fundamentally changed U.S. interests or U.S. foreign policy, but has eroded the moral high ground the United States’ used to enjoy - and use to its advantage.
The first two characteristics of Trump’s foreign policy approach are deeply ideological. For example, Trump’s withdrawal from the Trans-Pacific Partnership trade agreement was based on the notion that the agreement was taking jobs away from Americans. In reality, the TPP would have expanded economic freedom and was projected to increase growth and American jobs. While NAFTA may not suffer the same fate as the TPP, Trump’s insistence on renegotiating parts of it is creating tension between the United States and its two neighbors, Mexico and Canada.
Similarly, the president’s focus on countering terrorism via immigration, which he suggests is the most prominent threat to the American homeland, ignores empirical evidence saying otherwise. Not only is 99.7 percent of migration legal, but the greater threat facing the U.S. homeland is coming from domestic right-wing groups. It is not coming from refugees nor is it coming from Muslim migrants inspired by jihadism. Furthermore, none of the countries listed in the travel ban have been responsible for terrorist attacks within the United States.
The most disturbing characteristic, however, remains the president’s penchant for choosing inexperienced national security officials as top foreign policy advisors. For instance, the president chose Rex Tillerson, the ex-CEO of ExxonMobil, to lead the State Department. Tillerson, however, had no foreign policy experience, which was blatantly obvious during his confirmation hearing, but was offered the position because of his business expertise. As a result, the State Department is in disarray and roughly half of the positions, including an ambassadorship to South Korea, remain empty. Similarly, Trump named Jared Kushner a senior advisor to the White House simply because he is the president’s son-in-law. In his capacity, Kushner is tasked with addressing some of the most intractable international disputes and routinely meets with other world leaders; he was just recently in Saudi Arabia - his third trip this year.
The president’s nepotism, contempt for the political process and democratic institutions, and attempts to discredit the media by making claims of “fake news” and “alternative facts” are all hallmarks of authoritarianism. Trump continues to surround himself with yes-men (and women, like UN Ambassador Nikki Haley), resulting in a self-proclaimed foreign policy of “principled realism,” which is in fact inconsistent, incoherent, and bears little resemblance to realism.
Still, Trump has yet to implement major changes to U.S. foreign policy. For example, traditional alliances are still holding up, and in some instances, are growing stronger, as is the case with both U.S.-Israeli and U.S.-Saudi Arabia relations. Even though the president is trying to hold foreign states more accountable for their own security, the United States continues to maintain its military bases and security commitments all over the world. In fact, Trump has decided to increase U.S. troops in Afghanistan, which has been followed by a NATO troop increase. And the contested liberal world order — though faltering — still remains intact.
What has changed is the United States’ reputation and image, both of which have steadily declined under Trump. One consequence seems to be the erosion of the United States’ credibility as a reliable partner. For example, Trump’s decertification of the Obama-era Iran Deal, which effectively halted Iran’s nuclear weapons program, not only highlights his carelessness and ignorance regarding the complexity of the region, but also leaves European allies wondering if the United States can be trusted as a partner.
In sum, a year of the Trump Doctrine has not fundamentally changed U.S. interests or U.S. foreign policy, but has eroded the moral high ground the United States’ used to enjoy — and use to its advantage. The Trump Doctrine, however, is based on the president’s unpredictability, and hence, it is hard to predict what U.S. foreign policy will look like in the remaining years of this administration.Sahar Khan is a visiting research fellow in the Cato Institute’s Defense and Foreign Policy Department.
Our Constitution carefully separates the legislative, executive, and judicial powers into three separate branches of government: Congress enacts laws, which the president enforces and the courts review. However, when all of these powers are accumulated “in the same hands,” James Madison warned in Federalist No. 47, the government “may justly be pronounced the very definition of tyranny.” The rise of the administrative state over the last century has pushed us closer and closer to the brink. Today, Congress enacts vague laws, the executive branch aggrandizes unbounded discretion, and the courts defer to those dictates. For decades, presidents of both parties have celebrated this ongoing distortion of our constitutional order because it promotes their agenda. The Trump administration, however, is poised to disrupt this status quo.
In a series of significant speeches at the Federalist Society’s national convention, the president’s lawyers have begun to articulate a framework for restoring the separation of powers: First, Congress should cease delegating its legislative power to the executive branch; second, the executive branch will stop using informal “guidance documents” that deprive people of the due process of law without fair notice; and third, courts should stop rubber-stamping diktats that lack the force of law.
Executive power is often described as a one-way ratchet: Each president, Democrat or Republican, augments the authority his predecessor aggrandized. These three planks of the Trumpian Constitution — delegation, due process, and deference — are remarkable, because they do the exact opposite by ratcheting down the president’s authority. If Congress passes more precise statues, the president has less discretion. If federal agencies comply with the cumbersome regulatory process, the president has less latitude. If judges become more engaged and scrutinize federal regulations, the president receives less deference. Each of these actions would weaken the White House but strengthen the rule of law. To the extent that President Trump follows through with this platform, he can accomplish what few (myself included) thought possible: The inexorable creep of the administrative leviathan can be slowed down, if not forced into retreat.
Congress Should Cease Delegating Legislative Power to
the Executive Branch
The Federalist Society for Law & Public Policy Studies is the leading organization for conservative and libertarian lawyers interested in the current state of the legal order. I joined when I was in law school, and I frequently speak at their events.
Every November, the Federalist Society holds its annual meeting in Washington, D.C. But this year, the gathering had a highly unusual dynamic. It is common for scholars to criticize Congress for delegating its power to the executive branch, a violation of what is known as the non-delegation doctrine. It is unprecedented for the executive branch to share that concern. In a keynote speech, Don McGahn, who serves as White House counsel, lamented the fact that Congress gives the White House too much power. “Often Congress punts the difficulty of lawmaking to the executive branch,” he said, “then the judiciary concedes away the judicial power of the Constitution by deferring to agency’s interpretation of what Congress’s vague statutes.”
Several of his officials are working to contain the administrative state.
One would think that a lawyer for the president would relish this abdication by Congress and the courts. But no. Instead, McGahn praised a recent concurring opinion by Justice Thomas, in which Thomas “called for the non-delegation doctrine to be meaningfully enforced” to prevent the “unconstitutional transfer of legislative authority to the administrative state.” Again, reflect on the fact that if Justice Thomas’s position gained four more votes, much of Congress’s legislation — which carelessly lobs power to the White House with only the vaguest guidelines — would no longer pass constitutional muster.
Though, to be frank, there is no need to rely on the Supreme Court to enforce the non-delegation doctrine. The president has the power to veto half-baked legislation. (Recall what Speaker Nancy Pelosi said of Obamacare: “We have to pass the bill so you can find out what is in it.”) If Trump returned a bill to Congress, stating in his message that it failed to include sufficient guidelines, there would be a paradigm shift in Washington, D.C. Both Republicans and Democrats would have to go back to the drawing board and relearn how to legislate with more precision. This process would strengthen the rule of law. Or Congress could simply override the veto and reaffirm that it has shirked its constitutional responsibility and could not care less about what this president, or any president for that matter, actually does.
The Executive Will Stop Depriving People of Due Process
of Law without Fair Notice
The problems of the administrative state extend far beyond Congress’s delegations. During his address, McGahn deplored the very bureaucracy his boss presides over. “The ever-growing unaccountable administrative state,” he warned, “is a direct threat to individual liberty.” To be sure, the president cannot remove the heads of so-called “independent” agencies, such as the Federal Trade Commission or the Securities and Exchange Commission. Over the rest of the executive branch, in theory at least, the president should have complete control. But such is not the case. Over a half century ago, Justice Robert H. Jackson observed that the administrative state had grown into a “veritable fourth branch of the Government, which has deranged our three-branch legal theories.” Citing Jackson’s wisdom, McGahn explained that the administration will take steps to rein in this unruly power. “The Trump vision of regulatory reform,” he said, “can be summed up in three simple principles: due process, fair notice, and individual liberty.”
Generally, when an administrative agency wants to affect a person’s liberty or property, it must go through a fairly complicated and cumbersome process that seeks public input. (Whether or not that input makes any difference is a different story.) However, in recent decades, administrations of both parties have sought to bypass this process through the use of so-called “sub-regulatory actions.” By issuing memoranda, guidance documents, FAQs, and even blog posts, agencies have avoided the need to formalize their rules. Yet they still expect Americans to comply with these transitory documents or face ruinous fines or even litigation. In particular, during the Obama administration, the Department of Education used “Dear Colleague” letters to deprive students of due process on college campuses. McGahn called these missives “Orwellian.” And he’s right. In September, Betsy DeVos, the secretary of education, rightfully rescinded these guidance documents, announcing that “the era of rule by letter is over.”
More recently, in another speech at the Federalist Society meeting, Attorney General Jeff Sessions announced that his agency will cease issuing guidance documents that effect a change in the law. Under the leadership of Associate Attorney General Rachel Brand, who also spoke at the convention, the Justice Department will review existing guidance documents and propose modifying or even rescinding some. “This Department of Justice,” Brand said, “will not use guidance documents to circumvent the rulemaking process, and we will proactively work to rescind existing guidance documents that go too far.”
This is a remarkable and refreshing position, as it retroactively and prospectively constrains the ability of the Justice Department to expand its own authority. Depending on how rigorous the review of past guidance documents is, we could actually see a contraction of the administrative state. In Federalist No. 51, James Madison wrote of the “great difficulty” in framing a government: “you must first enable the government to control the governed; and in the next place oblige it to control itself.” Here, the DOJ is tying itself to the mast to prevent further erosions of the rule of law.
No doubt, this process will be met with resistance from within, as bureaucrats tend to protect their ossified levers of power. An energetic executive, however, can clear out what McGahn referred to as “regulatory sediment.” As it stands now, this policy applies only to the Department of Justice. It could be expanded to reach the entire executive branch, under the auspices of the little-known but powerful Office of Information and Regulatory Affairs. Neomi Rao, who heads OIRA, suggested during the Federalist Society convention that such a review could be implemented for independent agencies as well. (Christopher DeMuth wrote about this proposal in the Wall Street Journal.) Though the Supreme Court has held that the president lacks the power to remove the heads of these commissions, there is an open question about the extent to which the president can control their regulatory agenda.
Courts Should Stop Rubber-Stamping Regulations That Lack
the Force of Law
There is one final but imperative aspect of the Trumpian Constitution: the judiciary. During the 2016 campaign, then-candidate Trump released a list of possible nominees to fill Justice Scalia’s seat. At the time, I wrote on NRO, “I have expressed my serious doubts about Mr. Trump’s vision of constitutional law, but so long as he sticks with this list, I remain cautiously optimistic.” Stick with the list he did, and then some. In addition to his nomination of Neil Gorsuch to the Supreme Court, the Trump administration has set a modern-day record for the number of district- and circuit-court judges confirmed in the first year. More important, the White House is not taking any chances with these picks. McGahn noted that “they all have paper trails, they are sitting judges, there’s nothing unknown about them. What you see is what you get.” And there has been a pervading philosophical consistency to these nominees. McGahn stated it bluntly: “We are committed to nominating and appointing judges that are committed originalists and textualists.” In a not-too-subtle jab at Chief Justice Roberts, McGahn noted, that his office is seeking judges who “possess the fortitude to enforce the rule of law without fear of public pressure,” for “judicial courage is as important as judicial independence.” Trump is looking for “strong and smart judges.” (In 2015, Randy Barnett and I offered similar guidance to improve the judicial selection process).
These criteria will, by necessity, exclude the sort of judges who would rubber-stamp vague delegations of authority enforced by guidance documents that lack the force of law. “The greatest threat to the rule of law in our modern society,” the White House counsel argued, “is the ever-expanding regulatory state and the most effective bulwark against that threat is a strong judiciary.” To McGahn, “the Court should view agencies’ claims of sweeping authority with skepticism, not nonchalance in the first step to preserving individual liberty in the face of the burgeoning federal Leviathan.”
Recruiting judges who share these beliefs will no doubt promote a more active judiciary, quite the opposite of the longstanding — and vapid — mantra of judicial “restraint.” Indeed, three decades ago, the Reagan administration championed the so-called Chevron doctrine, whereby judges will uphold the executive branch’s reading of an ambiguous law so long as that reading is “reasonable” (that is, not arbitrary). The Trump administration has now called for ending the Chevron doctrine and eliminating this judicial abdication. By making such strong nominations, the president has taken proactive steps not only to limit its own power, but also to institutionalize restraints on future presidents who may see things very differently.
Look no further than Justice Gorsuch. In his address to 2,000-plus members of the Federalist Society packed into Union Station, the junior justice celebrated that “originalism has regained its place and textualism has triumphed.” The 50-year-old declared, “neither is going anywhere on my watch.” Providing a roadmap for the years and decades ahead, Gorsuch recalled that the courts have “managed to reenter the field of regulating interstate commerce,” an area long thought to be beyond the judicial competence. “Why can’t they reenter the field of delegation?” Gorsuch asked. “Our founders did not approve of lawmaking by bureaucrats by fiat,” he noted. There is a danger, Gorsuch warned, when courts “combined delegation and deference.” He’s right. Deference only works when Congress — and not the executive branch — is in charge of the lawmaking process.
I still harbor deep concerns about the rule of law in America today. As reflected solely by President Trump’s Twitter feed, I worry about his inappropriate attacks on the judiciary, calls for the prosecution of his political opponents, taunts of foreign dictators, delegitimization of the press, and failure to address sexual and other improprieties in his own party, to say nothing of our stark policy differences. With respect to the separation of powers, however, if the Trump administration actually follows through on its promises concerning delegation, due process, and deference, there will be a sea change in how the administrative state functions. Indeed, each of these actions will, ironically enough, weaken the executive and restore the separation of powers in the long run. That alone would be a remarkable disruption of the status quo.Josh Blackman is a constitutional-law professor at the South Texas College of Law in Houston, an adjunct scholar at the Cato Institute, and the author of Unraveled: Obamacare, Religious Liberty, and Executive Power.