DOMEocracy

hardline political news and analysis

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Impeach Trump?

What would be an appropriate response to a decision by the President of the United States to inflict deliberate harm on tens of millions of Americans? The question may seem far-fetched, even extreme, but depending on a decision by President Trump, it might well become one that Democrats in Congress must answer.

Under the Affordable Care Act, the federal government is supposed to make $7 billion available to subsidize health insurance premiums for millions of low-income Americans. While Republicans have sued to prevent the payments – itself a startling decision from a Party that had railed about fictitious “death panels” – the law stands, and under the Constitution, the Executive Branch has a clear responsibility to ensure that the laws are enforced. Even some key Republican lawmakers, like Rep. Tom Cole (R-OK) are demanding that Congress provide the funding for the premium supports.

Officials at the Department of Health and Human Services, which is presided over by Secretary Tom Price (himself a physician and obdurate opponent of ACA), issued a statement that the subsidies would be paid in conformity with the law. An “incensed” Trump reportedly ordered HHS to reverse its position, asserting that he wants to use the subsidies to force Senate and House leaders Charles Schumer and Nancy Pelosi to negotiate weakening the ACA. “I don’t want people to get hurt,” Trump professes, although he acknowledged he was willing to inflict the pain unless Democrats subvert the proudest achievement of their legislative careers.

It is a brutal and startling intimidation unsuited to any President: holding a gun to the heads of millions of low income Americans, threatening to pull the trigger unless Democrats agree to undermine their constituents’ health security.

It also may be unconstitutional. Like all presidents, Trump swore an oath to “preserve, protect and defend the Constitution,” a document which charges the President with enforcing the laws, regardless whether he embraces them. All presidents choose to selectively enforce laws. (Barack Obama, it will be remembered, declined to defend in court the Defense of Marriage Act, a law he believed was unconstitutional, but he did not refuse to enforce it until the Supreme Court agreed with his interpretation of its unsuitability).

Moreover, the 14th amendment requires equal protection of the law, and a decision to “hurt” millions of Americans based on their income (and disproportionately, on their race and ethnicity) surely violates this fundamental guarantee.

I am not one to blithely throw around the idea of filing impeachment resolutions. Richard Nixon richly deserved to be run out of office on a rail for manipulating the FBI and Justice Department to cover up his involvement in Watergate, but other cases have been little more than thinly veiled political retribution. The decision in 1868 to impeach Andrew Johnson was based on his violation of the Tenure of Office Act, one of the lesser of his many political offenses. Bill Clinton pretty clearly lied about his involvement with Monica Lewinsky, but few agreed it merited removal. Public demand for impeachment has wisely been resisted by congressional leaders. George W. Bush invaded Iraq on erroneous data which many observers knew was inconclusive, leading some to demand his removal, but Speaker Nancy Pelosi wisely steered her Caucus away from an ugly and unwinnable constitutional battle and towards a victorious 2006 electoral campaign.

Impeaching Trump became an obsession with some hardline opponents even before he took office based on the sheer ugliness of his campaign rhetoric and cynical strategy, both deplorable but not sufficient grounds for triggering Congress to initiate the removal procedure. The pre-Inaugural passion to remove Trump from the Oval Office reminded me of the “Impeach Reagan” pin a friend wore in his lapel on Election Night, 1980, a remnant from a failed gubernatorial removal effort.

But should he follow through on his threat to willfully impose financial hardship and medical jeopardy in defiance of the law, Trump may cross the line. That he would do so to seek political leverage makes his threat even more vile. Should he follow through and undermine the health security of millions of Americans, Congress would have more than sufficient grounds to debate removing him from office.

Harvard Law School’s constitutional law professor Noah Feldman recently pointed out that presidents need not actually break a law to commit “high crimes and misdemeanors,” the constitutional standard for removal from office. The president’s actions “don’t have to be actual crimes that are on the statute books at all,” Professor Feldman argues. “Abuse of power is anything the president does that he can only do by virtue of being president that threatens the basic freedoms and capacities of other people … actions performed in an official capacity … that violate the basic principles of the government.” Refusal to follow a law, upheld by the Supreme Court, so as to cause ill-health, suffering and death to citizens would, in most peoples’ book, meet the professor’s standard for “abuse of power.”

There is obvious political gain and risk from moving in such a confrontational direction. On the upside, motions of impeachment would energize much of the Democratic base that would just as happily impeach Trump for the ridiculous color of his improbable comb-over. Resolutions would focus attention on the impact of Trump’s heinous action and likely energize portions of the base impacted by such a decision. On the downside, many Republicans would cry foul and the country would be thrown into a furious round of the partisan confrontation that exasperates much of the electorate.

On balance, the fight would be worth strongly considering should Trump withhold the payments. The Affordable Care Act has never been more popular; Congress and Trump tried, and failed, to weaken it within the legislative process. It would therefore be highly presumptuous – perhaps even impeachable – for the President to exercise his Executive powers to subvert the law and endanger the health and welfare of millions of his fellow countrymen. Democrats would be fighting on a matter of constitutional principle and on behalf of Americans whose security has been undermined by the intentional misuse of presidential authority. That much seems unimpeachable.

 

 

Mini-DOMEocracy: Trump and Truthiness

Donald Trump is simply incapable of telling the truth or accepting responsibility.

Democrats were to blame for the failure of the Republican bill to gut the Affordable Care Act. The press is to blame for the steady leaks on the Trump-Russia connections. And now, a “lousy process” is to blame for the large number of Executive Branch vacancies.

“I am waiting right now for so many people,” Trump says. “Hundreds and hundreds of people. And then they’ll [NOTE: not sure who “they” references] say why isn’t Trump doing this faster?’ You can’t do it faster because they’re [NOTE: see earlier “note”] obstructing. They’re [NOTE: once again…] obstructionists… I have people, hundreds of people, that we’re trying to get through. I mean, you see the backlog. Can’t get them through.”

So, the implication is that the Senate, or those nasty Democrats, are holding up hundreds of appointments to sub-Cabinet posts; you know, like Mitch McConnell actually did to obstruct Obama appointments. Except, according to Politico,

“Contrary to Trump’s claim that he has ‘hundreds and hundreds of people’ awaiting confirmation, the White House had, as of April 7, put forward just 24 nominations for the 533 key posts that require Senate approval. Of those 24 nominees, 22 have been confirmed.”

I guess “they” should do better fact-checking before casting blame.

What a Week This Was!

Syria. Gorsuch. Filibuster. Job report. Nunes. China visit. Russia. Health Care. Bannon and NSC. Kushner diplomat extraordinaire. Unquestionably, the first week in April has been the most consequential for the still struggling Trump Administration. The thrashing about is occurring not only within the troubled White House itself, riven with rivalries, but between the two ends of Pennsylvania Avenue which continue to cautiously define their relationship.

Trump’s decision on Thursday night to launch a missile attack on Syria’s Al Shayrat airfield was the President’s first effort to demonstrate his willingness to flex American military muscle and was significant in a number of ways. The 59 Tomahawk cruise missiles that constituted Trump’s response to President Assad’s despicable chemical weapons attack on the town of Khan Sheikhoun elevated his profile by demonstrating he was willing to shoot off something other than his mouth in response to Syrian (and Russian) provocation. Whether the attack reflects a new policy towards the Syrian civil war, or was merely a one-off retribution strike for Assad’s slaughter of innocents, remains to be seen.

Less uncertain are the impacts in terms of relationships with both Russia and Capitol Hill. Apparently the Russians were informed prior to the missile launchings which allowed them to move their military personnel at Al Shayrat out of harm’s way, although it seems unlikely the early alert will assuage Putin for the assault on Assad, his Syrian ally. One question still to be answered is whether congressional leaders were also given advance notice of the missile attack. Without any knowledge on the subject, I would bet calls went out to the Big Five (Speaker, Majority and Minority Leaders in both the Senate and House), as was the case before President Obama launched the attacks in Libya in 2011, which is one reason why there was a muted response from potential congressional critics.

But it did not take long for Sen. Rand Paul and others to question why the President did not seek congressional approval prior to initiating a major offensive military action, especially since Trump had criticized Obama for not seeking specific authorization before intervening in North Africa. Now ensconced in the West Wing, Trump instead fell back on Obama’s rationale, that the Authorization for the Use of Military Force that Congress approved long ago concerning Afghanistan and Iraq essentially permits presidentially approved offensive military action anywhere in a very wide region that was not contemplated when the AUMF was passed.

Congress approved the War Powers Resolution in 1973 on a bipartisan basis to check the ability of trigger-happy presidents to insinuate the United States into protracted international conflicts without the requisite approval from Congress, which was granted war-making authority by the Constitution. Previously, White Houses of both parties have shot first and alerted Congress later, when it was necessary to seek funds to perpetuate the conflict initiated on a unilateral basis. Unwilling to leave American forces in harm’s way without needed weaponry or pay, compliant Congresses regularly get snookered into ratifying the President’s decision even when they disapproved of the initial commitment of U.S. forces. Frequently, for example, Nancy Pelosi had to cajole her distrustful Democrats to fund George W. Bush’s Iraq war, which she detested, provoking unrelenting criticism from militant demonstrators outside her San Francisco home.

Closer to home, tensions within the White House continued as personnel drama played out at the highest levels. Of greatest interest are reports that the two most powerful Trump aides, Jared Kushner and Steve Bannon, are at loggerheads. Kushner’s secret trip to Iraq, coming on the heels of his elevated role in coordinating government reform, negotiating a Mid-East Peace Agreement, and who knows what else, all are raising eyebrows in Congress and among ethics experts who note the acrid whiff of nepotism drifting through the White House. Many are justifiably alarmed at the power vested in a wholly inexperienced and unvetted neophyte who has never revealed potential conflicts of interest or been the subject of congressional confirmation. There is a reason that individuals who have the weighty portfolio being thrust upon Kushner must first be subjected to careful and public scrutiny, and one would think that Trump would want the same for his son-in-law if, for no other reason, than to diminish the possibility of a huge embarrassment at some crucial time in the future. (Of course, Bannon and National Security Advisor Gen. H.R. McMaster also hold their positions without benefit of congressional approval.)

A third development, with potentially significant long-term consequences, was the decision of Senate Republicans to alter the historic rule requiring 60 votes to take up a Supreme Court nominee, and the subsequent confirmation of Neil Gorsuch with just 54 votes, including two Democrats. Republicans pointed to former Majority Harry Reid’s decision to employ the nuclear option and eliminate the filibuster in 2013, a decision that applied to Cabinet and lower judicial nominees, but not to the Supreme Court or to legislative matters. Reid had long voiced his exasperation during leadership meetings with President Obama over his inability to confirm not only judicial nominees but also lower level Cabinet positions going back to the Clinton Administration because Minority Leader Mitch McConnell employed the 60 vote rule, often for reasons wholly unrelated to the qualifications or ideology of the prospective appointee. (In one case, at least, a senator held up a nomination for many months because he had not received a timely response to a letter to a Cabinet member.)

During those meetings (which I often attended), McConnell was a picture of taciturn indifference to Reid’s fulminations, resting on Senate tradition to justify use of the filibuster. Not surprisingly, upon gaining the majority in 2015, McConnell was happy to keep the Reid rule in place (as did Democrats in 1891 when they preserved the reforms that GOP Speaker Thomas Reed had unilaterally implemented to facilitate the operations of the House). There is a difference, of course: McConnell was holding up hundreds of appointments for reasons unrelated to the nominee, whereas Senate Democrats were objecting to one person’s appointment, based on Gorsuch’s extreme originalism and the Republican majority’s unprecedented refusal to grant Obama nominee Merrick Garland a hearing, let alone a vote. No matter, once a rule is violated, it is very difficult to restore it, and the Senate Democrats could hardly have been surprised. The resulting fury is more likely to affect the few Democrats who voted for GOP rules changes and Gorsuch, even though their votes in each case had no impact on the outcome.

One can hardly conclude a review of the week’s news without mentioning the spectacular flare-out of the bumbling, ham-fisted disaster that is Devin Nunes. His willingness to prostrate himself before the White House on the issue of Russian interference in the 2016 election was embarrassing to Democrats and Republicans alike, and his sharing of classified information about the probe with the President – information Trump could easily have acquired without the clandestine, midnight maneuvers of Nunes – sealed his fate as chairman of the House Intelligence Committee. Not only did he humiliate his fellow Republicans and provide Democrats with a new poster child of obsequiousness to Trump, but he crossed a line in kow-towing to the Executive Branch, a violation of separation of powers that was bound to cause anxiety among anyone concerned about the integrity and independence of the Legislative Branch.

A week of enormous consequence and continued turbulence on the Hill, in the White, and between the branches. And there is little reason to believe things will calm down anytime soon.

The Tax “Reform” Circus Comes to Town

Having placed pennies on the eyes of the stillborn American Health Care Act, Team Trump is now pivoting towards the more promising legislative goal of tax legislation. Not necessarily tax reform, which would imply restructuring tax obligations to ensure the ultra-affluent pay their fair share, but rather tax shifting to let the wealthy and corporations keep more of their money. When you hear Republicans say “tax reform,” there’s one thing you can be certain is coming (although never mentioned), and that is higher deficits.

Health care was a sideshow, needed in order to achieve a massive tax cut for the richest Americans that would help to finance the tax bill. Rest assured however: the circus that is coming to town is all about cutting taxes for the rich, and the deficit be damned.

The preliminary maneuvering suggests that legislating tax policy might be as rocky a road as the demolition derby that was health care “reform.” The key to any tax bill is the distributional curve: who gets more, and at what cost. As with the Reagan and George W. Bush cuts, the huge middle class would certainly secure some mild reductions in their tax bill, which pushes the cost of any such bill into the stratosphere. But the bulk of the benefits would go to the small elite of millionaires and billionaires who populate the world of Trump, Ryan and the Republican majority (as well as the Cabinet and White House staff).

If Democrats can’t figure out how to turn the tax debate into a messaging and electoral coup, they should hang up the spurs. The key is to keep it simple. The disproportionate amount of tax relief going to the wealthy affords Democrats a priceless opportunity to tarnish any claim that Republicans or Trump have (which is admittedly only a cynical one) to being a leader for the “little guy.” If anyone in the white working class missed the message of TrumpCare (“you lose your health guarantees while rich folks get a big tax cut”), the missive from the tax bill should be even clearer: “we are going to shower money on the richest Americans, run up a massive deficit, as Republicans always do, and then use the deficit to justify massive reductions in domestic programs that benefit low-income, job-deprived , undereducated Americans.”

This syndrome has been going on for over 30 years, since Ronald Reagan figured out it was easier to eviscerate domestic programs he disliked by pleading poverty born of tax policy he had perpetrated. Instead of denouncing popular New Deal and Great Society programs, as Barry Goldwater had learned was electorally perilous, Reagan generally sidestepped condemning them but created a deficit that “compelled” him to reduce domestic spending, a strategy later acknowledged by Budget Director David Stockman. There is a reason the biggest deficits are created during Republican presidencies, after all: the so-called fiscal conservatives cut tax and revenues, decline to pay for these cuts through comparable spending reductions or the reform of entitlements, and then wail about the rising deficits that can only be reduced (not really) by slashing tiny domestic discretionary spending (excluding military spending) that has already grievously suffered due to sequestration.

As the highly respected (though admittedly left-leaning) Center for Budget and Policy Priorities reported in 2013, “Bush tax cuts are likely to continue be a major driver of federal budget deficits 20 years after they were first passed” despite efforts by President Obama and congressional Democrats to rein them in. In addition, the nonpartisan Congressional Research Service concluded that Bush cuts “helped widen income inequality in the 2000s.” Nearly three quarters of the Bush tax cuts in the early 2000’s went to the top 10% of taxpayers (and 30% to the top 1%!), while the lower 60% of taxpayers received just 12% of the benefits. Little wonder that the 2009 deficit for fiscal year 2009, that greeted Barack Obama, was $1.4 trillion, the largest deficit relative to the economy since the end of World War II. Add in Bush’s other unpaid-for spending including the wars in Afghanistan and Iraq, the Part D Medicaid Expansion, and the damage caused by a failure to regulate the housing and financial services markets, and the responsibility shifts decisively from Democrats – who opposed all these decisions – to the conservatives fiscal “hawks.”

It certainly does not help that the tax debate will occur in the aftermath of both the health care implosion and the release of President Trump’s budget, which was so appallingly targeted against lower income Americans that even many conservatives have shied away from embracing it. No feature more illuminated the Dickensian motives behind this malevolent blueprint than the decision to zero out funding for the Meals on Wheels program. OK, I get it; you want to get rid of programs that “waste” taxpayer dollars. But really, starving a program that provides hot, nutritious meals to disabled, homebound elderly people, and are typically operated by charities (often churches): where is the message in such mean-spiritedness? Sure, toss in the assaults on the National Endowments for the Arts and Humanities, the Corporation for Public Broadcasting, the National Institute for Health – all that money that doesn’t add up to squat in a nearly $4 trillion budget. (And you can throw in ending heating aid to freezing Trump voters in the upper Mid-West.)

It remains to be seen if the Congress will have much appetite for such proposals that appear to defy the most elementary principles of politics. Sure, conservatives want to cut spending, but even most of them want to remain in office (check out how many have renounced their self-imposed term limits once they got used to their 18 person staffs and being the belle of the ball in their districts). Trump’s bizarre (sorry, there is no other words for it) strategy is to publicly browbeat the Breitbart crowd, growling “The Freedom Caucus will hurt the entire Republican agenda if they don’t get on the team, & fast. We must fight them, & Dems, in 2018!”

With plans, policies and strategies like these, the federal deficit isn’t the only thing that is going to grow like a beanstalk in the years to come. Trump’s deficit in approval ratings is so profound that it may well be only a matter of time before Republicans on the Hill abandon any pretense of being on the Trump team and do what politicians generally do: worry about their own seat before they worry about yours.

Happy to Be Proven Wrong!

Sometimes, when you go out on a limb, you’re going to have a rough landing.  In the last DOMEocracy, I predicted that “the House will pass something [on health care] that the President will define as ‘amazing.’” I have never been as pleased to say: “I was wrong! Mea culpa!” I have never been happier to have been proven a faulty seer.

I should have known better. First, congressional behavior is always tough to predict, and the current band of wayward miscreants who control the House are fixated on defying all historical antecedents. After all, this is the same crowd that gleefully pleaded with John Boehner (who surely is somewhere with an enormous grin on his face and a merlot in his hand) to shut down the government. The same crowd that proclaimed how wonderful it would be to default on the national debt: who refused to vote for continuing resolutions or stimulus bills or any other urgent legislation because they worship at the shrine of chaos, not to mention practice the dark art of ineptitude.

Since the Republicans bulldozed their way to the majority in 2010, I have described their behavior as bizarrely Orwellian. Failure=success: allowing (even encouraging) government to fail is an achievement, because it promotes the broader objective: to destroy peoples’ confidence in government. Now, with the collapse of the “repeal and replace” (snicker) ACA movement, it is they, not government, who look indescribably incompetent, not because they failed to pass a bill, but because their inability to translate 7 years of buffaloing the public into real legislation has exposed them as a bunch of hyperbolic windbags.

I mean, if you can’t kill off the law you’ve spent a solid 7 years trashing, with your governors refusing to create exchanges or accept Medicaid expansion dollars; if you’ve spend billions on political campaigns begging the American people to elect a unified Republican government to end the “abomination of Obamacare”; if you’ve had a narcissistic blowhard waving his Executive wand for two months pretending to be King Donald I – you’ve got all that going for you and you still crash and burn – and I mean, spectacularly crash and burn – on your first serious legislative outing: well, what else can you say except, “You’ve been exposed as frauds.” Not to mention, amateurs.

Give them credit, they did achieve something Barack Obama never could: they made people appreciate the Affordable Care Act. Perversely, their focus on the law’s protections and benefits reversed the public hostility to the law. Now, the public wants ACA left as it is by a 3-1 margin. Even Republican politicians can count those numbers, not that they weren’t tempted to make them even worse. The photograph of a large group of white men sitting around the table in the White House Cabinet Room dissecting the ACA and removing maternity benefits: come on!

Now this little band of wounded warriors can turn their attention to what always was the first goal of Republican politicians: cutting taxes for rich people and bumping up the national debt in order to create a rationale for additional cuts in domestic programs. But they may have done themselves in by exposing their meanspiritedness and mendacity. When they begin writing the budget resolution and appropriations bills, they will have not only the health care fiasco as a burden to carry, but also Trump’s egregiously stupid idea to slash Meals on Wheels, which uses religious charities, among others, to deliver nutritious food to homebound senior citizens. The inclusion of so malevolent an idea can easily obliterate every other message in a multi-trillion dollar budget simply because it gives you the keyhole to look into the values and morality of those composing the plan, and in this case, those values are contemptible. The annual budget to feel a home-bound senior through Meals on Wheels is probably less than a really nice Trumpian feast at Mar-a-Largo.

Perhaps the most serious political fallout will affect the relationship between Trump and Republicans in Congress, who are unlikely to grovel before his golden throne after this week’s demonstration of incompetence. His bluster surely did not help build a trusting relationship, particularly his threat to support primary opponents against those who dared to defy his edict.

The other big loser is Paul Ryan who learned the hard way that nothing has changed since the Freedom Caucus drop-kicked John Boehner out of the Speaker’s chair. Ryan made the mistake of trying to ride the tiger which, as John Kennedy once warned us, often consumes those who take such chances. The Senate Republicans are doubtless delighted with the outcome: Ryan’s stature is lowered, and they do not have to upset the base by tempering the House’s loony legislation (which the House probably wouldn’t have passed when it arrived back on the south side of the Capitol, unrecognizable, in a few months).

All in all, quite a good week. The Republicans can rest up a bit before the forthcoming April recess, which will bring a new round of harrowing town hall meetings with outraged constituents. At least the GOP representatives won’t have to explain why they voted to slash health benefits to women seeking mammograms or pregnant women seeking prenatal care. A silver lining in an otherwise grim forecast.

It’s Showtime for the Health Care Battle

The biggest legislative day for the 115th Congress and President Donald Trump – without much competition – is lining up to be this Thursday, when the House is scheduled to vote on the mutating American Health Care Act, the secretively conceived and widely disparaged “replacement” for the Patient Protection and Affordable Care Act. Written without the input of most of the House Republicans, affected health care industry groups, impacted patient organizations or senators who will have to respond to a House-passed bill, the road forward proves to be rocky. However, when the dust settles (and it may not be on Thursday), I will go out on a limb and predict the House will pass something that the President will define as “amazing.”

My willingness to make a prediction has less to do with the details of the AHCA than the politics. After years of horsing around with make-believe “ACA repeal” bills, the House Republicans have had to put a real legislative plan on the table. Let’s stipulate it is a stinker: there is no more sophisticated term for a bill that throws 26 million people off health care, undermines the economics of the health care industry, and showers hundreds of billions in tax relief on the wealthiest Americans. It wasn’t that long ago (1993 to be precise) that it was Democrats who united groups like the American Medical Association, the pharmaceutical industry and insurance companies to denounce health care legislation. Now, all those groups are condemning RyanCare, or TrumpCare, or whatever name will ultimately be stenciled on this abomination.

A terrible process creates a terrible bill. Not only did Republican leaders hide their cards from their own members and Democrats alike, but they insisted on proceeding without a word of testimony, a day of open hearings or the sina qua non standard for serious policymaking, a score of the cost and impact from the Congressional Budget Office. When CBO delivered the bad news, after two committees had already marked up the bill, the GOP leadership naturally trashed the non-partisan office. That kind of high-handedness doesn’t sit well with serious policy people or many Members, for that matter. There is a reason CBO, not the President’s Office of Management and Budget, has long provided the definitive analysis of the impact of proposed legislation: it is nonpartisan and unusually accurate which aggravates Democratic as well as Republican majorities.

Republican myth makers like to assert that the Democratic health bill was similarly developed in secret and foisted upon an unsuspecting and uninformed Congress in 2009, except that the GOP’s characterization is utterly untrue. Three House Committees spent 100 hours in hearings, listening to 181 witnesses; they held well-publicized mark-ups at which 239 amendments – Democratic and Republican – were offered and 121 were accepted. In the Senate, the bill received 53 hearings and 8 days of mark-up during which they considered 135 amendments. There were bipartisan discussions in Committee and at the White House. There were extensive consultations with medical, patient, hospital, drug and other impacted groups. And there was a CBO score before floor action (which predicted a trillion dollars in budget savings). Any comparison of the ACA process to the stealth AHCA is as phony as the Trump Tower wiretaps.

Republicans, commentators and those who are taken in by them also love to rationalize their secrecy by quoting Speaker Nancy Pelosi’s statement – one line in a long speech about health care – that “we have to pass the bill so that you can find out what is in it,” conveniently leaving out the remainder of the sentence, “away from the fog of controversy.” Pelosi was perhaps overly optimistic to imagine that Republicans would ever allow the ACA to be “away from the fog of controversy,” but she certainly was not suggesting no one knew what was in a bill that had been the subject of such detailed and prolonged discussion and negotiation. Rather, she was admitting the obvious about the legislative process: as legislation undergoes repeated amendments and ping pongs back and forth between the House and Senate, one can never say what the “final” version of a law is until the last stage in its creation. We can’t say what the final score in a baseball game is in the 7th inning either but that doesn’t make the game illegitimate.

Lacking much commitment to sound policy, Speaker Paul Ryan is feverishly offering up amendments to buy much-needed conservative votes. Not surprisingly, some House Republicans are uneasy with a bill that could deprive thousands of constituents of their health insurance – many of them Trump voters who hate ObamaCare but sure love that ACA that covers their unemployed spouse or their special needs kid. And there are the Freedom Caucus zealots, always happy to impose parliamentary chaos with Cat-in-the-Hat irreverence, who are harrumphing they will never support a bill they have denounced as “ObamaCare 2.0.”

Despite these observations, however, Ryan is likely to cobble together the 216 votes he needs to pass whatever concoction the AHCA has morphed into by Thursday, for the simple reason that he does not want ACA repeal to die on his watch. And this argument, more so than the details of the bill, is what will doubtless find resonance among 216 Republicans, though perhaps not many more. House members reflexively gag at arguments that their bills must be tempered to accommodate the whims of senators, who can drag out the filibuster rule or the rulings of the Senate parliamentarian when needed to muscle the House into submission. The House often anticipates such Senate obstinate behavior by passing legislation that satisfies the House’s internal politics, recognizing that a reckoning with reality lies somewhere down the road.

The atmospherics are different in the Senate. Where Ryan can afford to lose a couple of dozen Republicans and still pass a bill, the Senate margin is far tighter, only 2 votes. While a significant number of House members can vote “no” because their particular district demands it (as was the case with Democrats in 2009), a senator has to confront the impact across an entire state — a broader view of reality that causes grief to people like Lisa Murkowski, Susan Collins, Rand Paul and Rob Portman. A “yes” vote from these senators has draconian impacts on hundreds of thousands of constituents who have health insurance for the first time thanks to the ACA. The House hardliners are right: the Senate will alter whatever the House sends over in order to accommodate Senate realities. Then will come the moment of truth: can Paul Ryan cobble together the 216 votes needed to pass a Senate version that, for example, might retain Medicaid until 2020 (when everyone undoubtedly hopes cooler heads will prevail and the phase-out is scrapped)? Unless circumstances change dramatically (and they won’t), Ryan will not be able to count on Democratic votes to pass the Senate bill, so a displeased Freedom Caucus could still sink a more moderate Senate work product.

For the moment, such a scenario is down the road and a far more immediate test awaits Ryan.   President Trump lumbered over to the Hill today for a pep rally in support of the AHCA and predictably put his foot into it, musing that any Republicans who voted against the bill on Thursday might lose their seats in 2018. (The translation of the not very subtle dog whistle, in the words of a Republican inside the room, “If you don’t get behind this … it looks like you’d be ripe for a primary.”) Things may have changed since my departure from the Hill four years ago, but in my experience, presidents secure more votes when they exude charm rather than venom, and that is undoubtedly true for a president who is likely less popular in most districts than the members of Congress he was threatening. Yet Trump, utterly unschooled in Hill deference, not only issued the broad threat but singled out Freedom Caucus Chairman Mark Meadows with a promise, “I’m gonna come after you” if the North Carolinian doesn’t swallow his pride and embrace Ryan’s bill. Meadows has not responded favorably, advising that such warnings “don’t bring us closer to ‘yes.’ If anything, they have an opposite reaction.”

Time will tell how the politics and the policy play out, surrounded by the continuing chaos that is the Trump Administration. It is important to remember that today’s Republican Conference has been unable to enact any complex legislation without Democratic votes since assuming the majority in 2011. Believing they can succeed on something so convoluted as health care, with the entire health industry opposing them, is difficult to fathom. As former Speaker John Boehner noted last month, “Republicans never, ever, one time agreed on what a health care proposal should look like. Not once.” Will they have done so when the fight over AHCA is over? Maybe, but negotiating the policy and political labyrinth is going to be awfully confounding for an unproven and inexperienced majority.

Rewriting History (and the Affordable Care Act!)

 

Deep in the bowels of the Capitol, Republican staff members (and perhaps some Members and outside policy wonks) are furiously fashioning a brand new national health bill that House leaders pledge will be passed by the end of March. It is an unconventional way to draft legislation that, if enacted, would not only unravel health insurance coverage for millions who have gained it under the Affordable Care Act (ACA) of 2010, but would have sweeping impacts on an industry that affects one-sixth of the nation’s economy.

However Republican leaders spin this secretive process over the coming weeks, there is no question that such “legislating in the dark,” as an account of the 2009 stimulus legislation termed the process, is the wrong way to approach so contentious and significant an issue as health policy.

Over the past several days, several legislators of both parties have endeavored to secure a copy of the much-vaunted “replace” component of the Republicans’ “repeal and replace” prescription for ACA. GOP Sen. Rand Paul and Democratic Whip Rep. Steny Hoyer both conducted futile missions to find the furtive bill drafters. Instead, Hoyer was informed by Majority Leader Kevin McCarthy, “You can look it up when we mark it up.”

How’s that? Does McCarthy mean to say that House Democrats will not see a bill that impacts millions of their constituents until the committees “mark it up”? For those who have not spent their lives in and around legislators, “mark up” is the amendatory process conducted by committees on legislation before it is passed (reported) and sent to the full House or Senate membership “on the floor” for amendment (sometimes) and final passage (usually). It is difficult to draft amendments to legislation you have not seen. It is even more difficult to vote on legislation that has never been the subject of scrutiny – not by the minority, by the press, by affected constituents, by the health care industry. Even the basic parameters of the law, let alone how much it would cost and whether it would deprive Americans of affordable care they posses under ACA, are unknown.

Speaker Ryan seems to disagree with his own Majority Leader, pledging that “This bill will go through the committee process. It will go under regular order.” But Ryan was unclear whether “regular order” would include open (or any) hearings, a full vetting of the bill, and unrestricted mark-ups – all processes used en route to passage of the ACA.

In an indication of how Ryan and Republicans are attempting to alter history, the Speaker asserted that regular order was the “opposite of what Democrats did in 2009.” But Ryan has his history wrong, and such assertions are little more than an effort to revise the record to impugn Democrats and sanction secret lawmaking.

House Democrats held hearings on the health care proposal in 2009 in three committees, providing an open forum to hear from an exhaustive list of supporters and critics. In the Senate, the hearings were among the longest on record, causing much consternation among House Members who feared the same kind of effort to run out the clock that had doomed a child health bill in 2008. Mark-ups occurred after a thorough public airing, and contrary to the revisionist versions of the ACA legislative process, many Republican amendments were accepted in an effort to secure bipartisan support that ultimately proved elusive. Republicans might not have liked the outcome – although the ACA, as is widely known, is based more on the Heritage Foundation/Mitt Romney Massachusetts model than the single payer/Medicare expansion many Democrats would have vastly preferred – but they were not denied an ability to review, discuss or amend the underlying bills.

Critics often point to Speaker Nancy Pelosi’s much ballyhooed statement that she could not know the provisions of the ACA until it was passed as evidence of the secret nature of the bill on which Members were compelled to vote. But this history, too, has been cynically misrepresented by those seeking to ridicule Pelosi and taint the ACA. Pelosi’s statement merely acknowledged that the final version of the bill could not be known until the House and Senate had completed their revisions to each other’s versions of the bills. For the uninitiated, it is called “the legislative process,” and Pelosi’s much maligned statement merely acknowledged the back-and-forth inherent in reaching a complex measure’s final provisions.

ACA critics certainly have every right to criticize the law’s impact, although they would do well also to acknowledge how severely their obstructive efforts have complicated implementation. Complex statutes always require amendment in the years following enactment, but instead of a good faith effort to address the inevitable problems in implementing a nationwide health law, Republicans have spent years wasting time on over four dozen futile efforts to repeal it with no idea how to substitute a program that matches ACA’s impressive achievements. Now, with majorities in the House and Senate and a Republican President, they have their chance, not as a symbolic sideshow but as substantive policy, and hopefully in the light of day and using regular order.

Managing the Modern Speakership: Pelosi and Boehner

My article on the two most recent former Speakers of the House had just been published in “Extensions,” the journal of the Carl Albert Congressional Research and Studies Center at the University of Oklahoma (Winter, 2017).  The paper is based on the talk I gave at the June, 2016 Congress and History Conference in Norman, OK.

The article is on pp. 20-25 of the journal, which can be found at the following web site for the Carl Albert Center: http://www.ou.edu/carlalbertcenter.html

Budget Balderdash

One of the serious complications resulting from Donald Trump’s reliance on fabricated information is that, on those rare occasions when he says something truthful, many people dismiss it as balderdash. Trump’s unpredictability, his destructive refusal to comply with the norms of political etiquette, and his dangerous reliance on the mythical infallibility of his own judgment are astonishing, but every once and a while, he actually does say something with a ring of accuracy.

For example, today he shared some thoughts about the challenges of developing an alternative to the Affordable Care Act. Congressional Republicans seem intent on replicating their efforts in the last Congress – on nearly 60 occasions – to repeal the health law with no plan for repairing its admitted shortcomings (hardly surprising in a complex 6-year-old law) or replacing it. But as some GOP governors, especially those like John Kasich of Ohio who have opposed repealing the Medicaid expansion, have been warning that such action by the Congress would be devastating not only to those newly covered by ACA but to the hospitals, clinics, health care providers and state budgets that would be left to cope with the chaos. Even within the dysfunctional Trump White House, it is said, some senior staff are reportedly growing wary of dismantling a law that has expanded health care to over 20 million Americans – many in states that voted for Trump.

It is hard to know whether to be gratified or embarrassed by Trump’s admission that health insurance coverage is “an unbelievably complex subject,” as the President confessed. “Nobody knew health care could be so complicated.” Well, actually, everybody (except apparently Trump, who has never had to worry about his own health care) knows how complex health care is, which is why Democrats initially sought to create a simplified single payer system or, at least, a system including a public option that offered an alternative to reliance on private insurance companies. Republicans unanimously opposed those approaches, insisting on an alternative that would have extended coverage to one-tenth the number of people covered by the ACA.

Trump’s amazement at the complexity of governing should also be kept in mind when he delivers his initial speech before a joint session of Congress on Tuesday night. It seems that a portion of the audience will show up out of respect, while a significantly larger share will watch the speech just to see how he interacts with a suspicious Congress. The key initiative in the speech will likely be his budget proposal, which like most GOP budgets, strives for lower deficits on the backs of the middle and lower-income taxpayer. The most important feature, it is reported, will be a $54 billion increase in military spending with a corresponding reduction in non-defense spending. Not a dime will come from closing tax loopholes or compelling the most affluent to pony up their fair share of taxes; no sacrifice will be requested from entitlements that are responsible for 70% of government spending, including most of the unfunded deficits.

Instead, 100% of the cuts will come from the non-defense discretionary portion (NDD) of the budget which, incidentally, just took the brunt of the trillions in spending reductions imposed by the 2012 budget agreement and the subsequent sequestration. This NDD portion of the budget is just 12% of overall spending – education, health programs, law enforcement, energy, infrastructure, the environment – but it bears the overwhelming burden of sacrifice when the long budget slashing knives come out.

One area of the budget that won’t contribute much to deficit reduction is that old whipping boy that Americans love to hate: the foreign aid we lavish on those ungrateful countries that secretly hate us. Ask a deficit hawk where we should cut spending to balance the budget, and year after year, the leading target is foreign aid. In a poll last December by the Kaiser Family Foundation, the average respondent estimated that more than a quarter of the entire federal budget was showered on other countries. It goes without saying that if we trimmed back that program, the deficits would dry up pretty quickly.

Well, unfortunately, foreign aid barely registers as an asterisk in the federal budget (where spending is rounded off to the nearest $100 million). The actual share of the federal budget spent on foreign aid: less than one percent. Reducing the alleged “waste” in the foreign aid budget, which feeds and clothes and shelters millions of people around the world, would be the budgetary equivalent of getting a haircut to lose weight. Indeed, when respondents were told that eliminating foreign aid would have a negligible impact on the federal budget, only 28% still believed the federal budget needs cutting.

Budgets are often a case of legislative legerdemain; the savings you get are often less than predicted while the spending is more. (One favorite sleight of hand: hide the ballooning cost of a program outside the ten year “budget window” to obscure the true cost of the initiative.) This year, in addition, the House Republicans changed the House rules to mandate that budget analysts use guffaw-inducing “dynamic scoring” to make income revenues unrealistically swell to achieve alleged deficit shrinkage.

Here’s the test for the seriousness of any budget proposal: Whom does it make squirm? From whom does it ask for “sacrifice?” If the response to the forthcoming Trump budget is a sigh of relief from the fat cats, you can be pretty sure that once again, the old bait and switch has been played on the unsuspecting voter. Count on it.

 

The Harrison Award Winner for 2017

Although coming a day or two early, I am prepared to award the First Annual William Henry Harrison Award to President Donald Trump. The W.H.H. Award will be given to that political individual who records the very worst month in public office. It will be difficult to surpass the performance of the eponymous Award’s namesake; Harrison died just 30 days after taking the oath of office in 1841 (in part because of the horrendous cold he acquired delivering the longest Inaugural address in history). Trump seems likely to survive physically and politically his first month (having delivered one of the shortest, albeit, most vitriolic Inaugurals), but may well have simultaneously undermined his chances for a productive presidency, although to listen to him at Thursday’s press conference, you wouldn’t know it. “There’s never been a presidency that has done so much in so short a period of time,” Trump boasted. No, really; he said that. Really.

Not that the President lacked competition for the Award. No less than an Honorable Mention must be given to Gen. Michael Flynn, whom the President nominated and fired within three weeks as National Security Advisor. Flynn’s flare-out following disclosure of his secret conversations with Russian officials was spectacular for how it illuminates the care with which Trump has selected his close national security advisors (like Steve Bannon, whom he – perhaps unwittingly – appointed to the National Security Council).

Flynn’s actions are dangerously irresponsible and self-destructive, and reportedly, the recently-deposed spy chief just had his security clearance withdrawn. Everyone – and I mean, everyone – with a smidgeon of experience in intelligence and national security matters knows that when you are on the phone with another nation’s embassy, your conversation is (a) being overheard by someone other than the person with whom you are having a supposedly “private” conversation, and (b) probably being recorded by both sides for future use. Denying you had such a conversation or, implausibly, claiming you can’t recall the subject matter– say, whether you broached the topic of curtailing economic sanctions – is ludicrous.

The probable existence of tapes of the Flynn conversations raises the tantalizing question of when the contents will be splashed across the Nation’s newspapers and handheld devices. Note I said “when,” not “if.” The $64,000 question is whether Gen. Flynn also forgot that he might have mentioned the President-elect’s name in those conversations, and especially if he suggested he was calling at the behest of, or on the direction of, Mr. Trump. Such a revelation would be nothing short of cataclysmic, and congressional investigators (let alone the press) are certain to “demand access to the tapes to assess what the President knew, and when he knew it.” (That phrase has such an historic ring to it…)

Republicans in the House and Senate face a conundrum. If they block an inquiry into the Flynn scandal, they will share culpability for any and all violations of any national security procedures that might be documented when the truth inevitably tumbles out. Only the most hopelessly naïve observer could believe those who have been churning out national security information on Flynn would hesitate to steer a little more of it towards, say, the Washington Post, if it looks like a cover-up is being constructed to protect the President from the leaks. (Again, these words have such familiarity to them.)

Flynn’s was not the only stunning setback in the continuing horror show at 1600 Pennsylvania Avenue. Right behind Flynn on his way out the door was Andrew Puzder, and he, admittedly, deserves a Special Mention. Puzder doubtless had been told that his nomination for Secretary of Labor was doomed following disclosure that he (a) employed an undocumented immigrant and failed to pay taxes on her compensation (i.e., cheated that person and American taxpayers), (b) worked for a lawyer who represented organized crime, and (c) abused his wife (although she later retracted the claim). Personally, I would like to think the fact that he opposes increasing the minimum wage, embraces automation as a reasonable way to address labor needs, and has had his fast-food empire cited dozens of time for labor law violations might have also influenced senators to advise Puzder to head back to flipping burgers.

Flynn and Puzder are only two of those selected by Trump who are manifestly unsuited to the jobs for which the President nominated them. One must stand in awe of the pure atrociousness of the vetting process for top government officials. For a guy whose television success was based on evaluating and “hiring” the right employees, Trump in real life (or as close to it as he ventures) has been exposed as a remarkably poor judge of character. And if you think these individuals have been stunningly unqualified and extreme, pay very close attention to the sub-Cabinet level deputy and assistant secretaries he will be appointing. Count on them emerging from extreme congressional offices, think tanks and industry hierarchies. By insinuating themselves into the rule-making and administrative processes of the departments agencies, they will do far more damage than the high-profile secretarial level nominees.

Meanwhile, Trump continues to play at being President, attempting to delegitimize every other source of power or information – the press, foreign leaders, the Judiciary. “The news is fake,” he declared, using the logic of a 3 year old, “because so much of the news is fake.” If the Republicans in Congress were doing anything other than watching the unfolding circus with gaping mouths and visions of electoral cataclysm swirling before their eyes, he’d be denouncing them, too. He barely has time for denigrating Democrats (although he did thoughtfully blame Hillary Clinton for the continuing instability in the Mid-East during his welcoming remarks for Israeli Prime Minister Netanyahu), but declares the rollout of his immigration and refugee ban was “very smooth.”

A couple of weeks ago, I wrote a DOMEocracy blog that argued the dysfunctional Trump Administration would be “a test for Congress, especially the Republican majority.” That test has expanded from a quiz to a mid-term in the ensuing weeks; will Congress fulfill its constitutional responsibilities to hold the Executive Branch accountable and to scrutinize mismanagement (or worse) at the White House, or will it abandon decades of effort to restore itself as a co-equal branch, uncowed by a reckless presidency intent on shredding not only the social compact, but perhaps even the Constitution?

So, to you, Mr. President, goes the William Henry Harrison Award for 2017. Based on your first month in office, I would predict you have a better than even chance of winning the 2018 Award as well.