Tag Archives: Nancy Pelosi

AARP’s Medicare Amnesia

Based on its statements the past few weeks, if Obamacare extended to non-profit organizations, AARP might need to seek coverage for memory loss. While the seniors’ group opposes House Republicans’ extension of children’s health insurance because it includes provisions means-testing Medicare benefits for wealthy seniors, the Obamacare legislation it endorsed in December 2009 did the very same thing.

Obamacare Included Means-Testing

A letter the AARP sent to the House Energy and Commerce Committee last week objected to the House’s proposals to increase Medicare means-testing, noting that wealthy seniors already pay a greater share of their Part B (outpatient care) and Part D (prescription drug) premiums. That statement is true—in part because of Obamacare, which AARP endorsed.

Section 3402 of that law increased the number of affluent individuals subject to means-testing for Part B premiums, by freezing the inflation measure used to calculate the means-testing thresholds from 2010 through 2019. With no annual adjustment for inflation this decade, more seniors will find themselves with income exceeding the threshold limits.

In addition, Section 3308 of Obamacare applied means-testing for affluent seniors to the Part D prescription drug program for the first time.

Obamacare Used Medicare Savings

Last week’s AARP letter also claimed that “not only is it wrong to continue to ask Medicare beneficiaries to shoulder the burden for non-Medicare expenditures, but it will make it harder to finance actual improvements and address long-term challenges in the Medicare program.” That statement contains no small amount of irony, considering that Obamacare, as House Minority Leader Nancy Pelosi herself admitted, “took half a trillion dollars out of Medicare in [Obamacare], the health care bill”—to spend on new entitlements.

Moreover, by using savings from the Medicare Part A (hospital insurance) trust fund, Obamacare gamed the accounting to make the program’s shortfalls look less severe. When then-Secretary of Health and Human Services Kathleen Sebelius was asked whether the Medicare savings were being used “to save Medicare, or to fund health reform [Obamacare],” Sebelius replied, “Both.”

Some would argue that Obamacare’s financial chicanery has actually undermined Medicare’s solvency by giving lawmakers an excuse to postpone needed reforms. While this year’s Medicare trustees report claimed the Part A trust fund would become insolvent in 2029, the last trustees report released prior to Obamacare measured the program’s insolvency date at 2017—this year.

If it weren’t for the double-counting in Obamacare—a bill that AARP proudly endorsed—lawmakers would likely be confronting Medicare’s structural deficits this year. Instead, comforted by the false hope of Obamacare’s accounting gimmicks, Congress seems unlikely to embark on comprehensive Medicare reform to solve those deficits in the near future, which will only exacerbate the impact of legislative changes when they do take place.

The history of Obamacare lends support to AARP’s current argument that Medicare savings not finance other government spending. But given its own history in supporting Obamacare, AARP seems singularly unqualified to make it.

This post was originally published at The Federalist.

Obamacare, the Constitution, and “Sabotage”

An inside look at an Oval Office meeting between President Trump and Democratic leaders…

 

Donald Trump:           Nancy, Chuck, so good to see you. I wanted to bring you some good news: We’re starting construction on the border wall tomorrow.

Nancy Pelosi and Chuck Schumer:             What? Congress hasn’t appropriated money for the wall. And Congress has the “power of the purse,” not you. How can you say you’ll build the wall when we haven’t signed off on the funding?

Trump:            Because Barack Obama did it for years. What about his actions on Obamacare?

Pelosi:              What do you mean, what about Obamacare? It’s the law of the land—and you should stop sabotaging it!

Trump:            By “sabotaging Obamacare,” you mean failing to spend money on the cost-sharing subsidies to lower deductibles and co-payments…

Pelosi and Schumer: Right!

Trump:            …even though the text of Obamacare itself nowhere includes an appropriation for those subsidies…?

Pelosi and Schumer: Ummm…

Trump:            Let me get this straight: You’re accusing ME of sabotage, because YOU “forgot” to include an appropriation in Obamacare for more than $10 billion per year in spending?

Pelosi:              But “everyone understood” the law provided an appropriation…

Trump:            Even though you couldn’t be bothered to write it down?

Pelosi and Schumer: Ummm…

Trump:            Did either one of you—or for that matter, any Democrat—actually read the bill before voting for it?

Schumer:         I meant to, I swear! But Max Baucus said he hired the best experts, so we didn’t think we needed to.

Trump:            Didn’t those experts read the bill?

Schumer:         They spent all their time cutting deals to get the bill passed. Those Cornhusker Kickbacks don’t write themselves, y’know!

Trump:            Well, your loss is my gain. I’ve read some of the documents in the lawsuit over the cost-sharing subsidies. Do you know that the Obama Administration argued that the structure of the bill implied an appropriation, even though one doesn’t exist…?

Pelosi and Schumer: Yes…

Trump:            And Nancy, you remember the amicus brief you filed in the case right before my election, which said that the courts are “certainly not” the venue for litigating cases when the executive invents an appropriation, as it did with the cost-sharing subsidies…?

Pelosi:              But…but…but…

Trump:            That means I can argue that there’s an appropriation behind any law Congress has passed—like the bill you voted for, Chuck, authorizing construction of the border fence…

Schumer:         What?

Trump:            …And you can’t go to court to stop me!

Pelosi and Schumer: But you requested funding from Congress—and we refused to grant it!

Trump:            You mean, like Congress refused to appropriate funds for the Obamacare cost-sharing reductions, after President Obama requested them…?

Pelosi and Schumer: Ummm…

Trump:            The Obama Administration testified before Congress that it had the authority to spend money on the cost-sharing reductions because Congress didn’t explicitly stop them from spending it, correct?

Schumer:         Yes…

Trump:            And Nancy, your brief said the same thing: That unless Congress explicitly prohibits a President from spending money, the President has free rein to do so…

Pelosi:              But I was trying to protect Obamacare from sabotage!

Trump:            Did you take an oath to support and defend the Constitution, or to support and defend Obamacare?

Pelosi and Schumer: There’s a difference?

Trump:            Yes—and here it is. Thanks to President Obama’s precedent, I can make up whatever appropriations I want—and by your own admission, you can’t go to court to stop me. You could in theory enact a bill prohibiting me from spending money on these phantom appropriations. But because I have a veto pen, you’ll need a 2/3rds majority in each chamber to override me. You don’t have a 2/3rds majority, do you?

Pelosi and Schumer: No, Mr. President.

Trump:            Didn’t think so. So I’ll get my funding for the border wall—and increased defense funding to boot. And maybe I’ll find some other appropriations too. I think the structure of Michelle Obama’s school lunch program implies an appropriation for a new chef at Mar-A-Lago…

Pelosi:              You know, Mr. President, maybe we need to re-think our position on these phantom appropriations. I signed that legal brief the week before the election, not knowing who the next President would be. I thought that power would be safe in her hands…

Trump:            WRONG!

Pelosi:              But executive power has its limits—and Congress should jealously guard its “power of the purse,” regardless of which party holds power at the other end of Pennsylvania Avenue. Otherwise, we could see all sorts of unintended consequences from legislation…

Trump:            You mean, we had to pass the bill so that you could find out what is in it…?

Pelosi:              Well played, Mr. President.

What You Need to Know about Today’s Medicare Trustees Report

Earlier this afternoon, the Medicare trustees released their annual report on the state of the program’s finances. Here’s a quick take about what you need to know in the report:

Insolvency Date:  The insolvency date for the Medicare Hospital Insurance Trust Fund is 2029, one year later than last year’s report. However, remember that, if not for the double-counting in Obamacare (about which see more below), the Trust Fund would ALREADY be insolvent, as in 2009 — the last trustees report prior to Obamacare’s enactment — the trustees projected insolvency for 2017 (i.e., this year).

IPAB NOT Triggered:  Despite prior predictions, this year’s trustees report did NOT trigger a reporting requirement related to the Independent Payment Advisory Board (IPAB). In other words, Medicare spending over the relevant five year period (2015 through 2019) is not projected to exceed the per capita caps established for Medicare in Obamacare itself. Which makes one wonder — if per capita caps for Medicare haven’t yet bit, why are liberals objecting so loudly to per capita caps for Medicaid…?

A Brief Break from Massive Deficits:  For the first time in nearly a decade, the Medicare Part A Trust Fund did NOT run a deficit. However, the small $5.4 billion surplus did not even begin to overcome the $132.2 billion in deficits run by the Medicare program from 2008 through 2015.

Funding Warning:  For the first time since 2013, the trustees issued a funding warning showing that the Medicare program is taking a disproportionate share of its funding from general revenues, thus crowding out programs like defense and education. If a second warning is issued next year, the President will be required to submit legislation to Congress remedying the problem.

Unrealistic Assumptions:  As it has every year since the passage of Obamacare, the trustees issued an alternative scenario, because “absent an unprecedented change in health care delivery systems,” the payment reductions included in Obamacare mean that “access to, and delivery of, Medicare benefits would deteriorate over time for beneficiaries.”

Double Counting:  The actuary also previously confirmed that the Medicare reductions in Obamacare “cannot be simultaneously used to finance other federal outlays and to extend the [Medicare] trust fund” solvency date – rendering dubious any potential claims that Obamacare will extend Medicare’s solvency.  As Nancy Pelosi previously admitted, Democrats “took a half a trillion dollars out of Medicare in [Obamacare], the health care bill” – and you can’t improve Medicare’s solvency by taking money out of the program.

Chuck Schumer Admits Obama Administration Violated the Constitution

Last week, one of Washington’s leading Democrats made what should be considered a stunning admission, yet few in the media bothered to notice, or care. In response to comments from Senate Majority Leader Mitch McConnell (R-KY) about a potential bailout of Obamacare insurers, Minority Leader Chuck Schumer (D-NY) said: “Democrats are eager to work with Republicans to stabilize the markets and improve [Obamacare]. At the top of the list should be ensuring cost-sharing payments are permanent, which will protect health care for millions.”

Schumer’s statement contradicts the Obama administration, which argued in federal court that the cost-sharing reductions are already permanent. It’s also an implicit admission that the Obama administration violated both the U.S. Constitution and federal criminal statutes by spending funds without an appropriation.

Some background on the matter at issue: Section 1302 of Obamacare requires health insurers to reduce cost-sharing (i.e., deductibles, co-payments, etc.) for certain low-income enrollees who buy silver plans on health insurance exchanges. The law directs the secretary of Health and Human Services (HHS) to create a program to reimburse insurers for the cost of providing those cost-sharing discounts. But the text of the law does not actually disburse funds to HHS—or any other cabinet department—to make the reimbursement payments to insurers.

Not wanting to be bound by such niceties as the rule of law, the Obama administration started making the payments to insurers anyway, claiming the “text and structure” of Obamacare allowed them to do so. The House of Representatives sued, claiming a violation of its constitutional “power of the purse,” and last May, Judge Rosemary Collyer agreed, ruling that the administration violated the Constitution.

Schumer Admits Constitutional Violation

Schumer’s statement last Thursday stands out because the Obama administration and House Minority Leader Nancy Pelosi (D-CA) have claimed, both in court and elsewhere, that Obamacare made a permanent appropriation for the cost-sharing payments. The law did no such thing, and a federal district court judge so ruled, but they attempted to argue that it did.

By conceding that Obamacare lacks a permanent appropriation for cost-sharing reductions, Schumer’s admission raises some interesting questions. The Obama administration requested an explicit appropriation for the cost-sharing reduction payments, a request Congress promptly denied. If there isn’t a permanent appropriation for cost-sharing payments in Obamacare—as Schumer admitted—then the Obama administration spent money without an appropriation.

The executive spending money without an appropriation not only violates Article I, Section 9, Clause 7 of the Constitution—“No money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law”—but also the federal Anti-Deficiency Act, which prohibits federal employees from authorizing expenses in excess of available appropriations—which, according to Schumer’s logic, do not exist for the Obamacare cost-sharing reductions.

The Anti-Deficiency Act includes not just civil, but criminal, penalties: “An officer or employee of the United States Government or of the District of Columbia government knowingly and willfully violating [the Act] shall be fined not more than $5,000, imprisoned for not more than 2 years, or both.”

By calling on Congress to “ensure” permanent cost-sharing reductions, Schumer has essentially admitted that President Obama violated the Constitution, and members of his administration may have violated federal criminal statutes by spending money without an appropriation. This prompts one other obvious question: When will Schumer endorse a special counsel to investigate these matters?

Don’t Endorse Law-Breaking

In deciding to pay the cost-sharing subsidies without an appropriation, the Obama administration and its allies have endorsed a strategy of ends justifying means: They wanted to provide health insurance to more Americans, therefore it was acceptable to violate the Constitution. And if the administration violated the Constitution long enough, and on a big enough scale, they could change the law to meet their will. Now that a federal court has ruled that President Obama did in fact violate the Constitution, that’s exactly what Pelosi and Schumer want to do: Change the law to accommodate the Obama administration’s law-breaking.

Conservatives shouldn’t buy it for a second. While liberals want the entire dispute to focus around ends—“Insurers must receive these payments, or millions of Americans will suffer!”—conservatives interested in the rule of law should focus on means: Did the administration violate the Constitution and federal criminal statutes, and who should be held responsible, and how?

Only after those weighty issues have been examined and adjudicated fully should Congress debate whether to appropriate funds for the cost-sharing reductions. To do otherwise would undermine the Constitution that members of Congress vowed to uphold, and further encourage the kind of flagrant law-breaking seen in the Obama administration.

This post was originally published at The Federalist.

Democratic Hypocrisy on Executive Power

In recent months, the press has focused on whether President Trump is “sabotaging” Obamacare—but in so doing, they’ve largely ignored a far bigger story regarding the rule of law. In attempting to defend Obamacare, Pelosi and several of her House colleagues have essentially sabotaged the Constitution, making claims that, if accepted into common practice, would cede massive power to the executive.

The charges of sabotage derive largely from Obamacare’s system of cost-sharing reductions, intended to help certain low-income individuals with deductibles and co-payments. While the law requires insurers to lower individuals’ cost sharing, and directs the Administration to reimburse insurers for those reductions, it nowhere gives the Administration an explicit appropriation to do so.

Questions about whether the Trump Administration might withdraw the cost-sharing payments to insurers therefore represent not sabotage, but a desire to comply with Article I, Section 9, Clause 7 of the Constitution: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” The true sabotage comes not from the Trump Administration, but from Democrats themselves, when they failed to include an appropriation in Obamacare seven years ago. Did they have no time between writing Cornhusker Kickbacks and other parochial pork to notice their bill lacked an appropriation for, oh, say, $135 billion?

Democrats Are Sabotaging Themselves on Obamacare

Having first sabotaged Obamacare through their own incompetence, Democratic leaders in the House—bless their hearts—thought it would be a good idea to use the troubled law to give the President even more authority. In a little-noticed development the week before the election, Nancy Pelosi and 10 leading House Democrats filed an amicus curiae brief in an ongoing lawsuit regarding the cost-sharing reductions. The brief justified the cost-sharing payments by claiming “everyone understood” the law included an appropriation, even though the bill’s actual text did no such thing—“We meant to include it, honest we did!”

More importantly, the lawmakers’ brief claimed Congress has little judicial recourse should the executive exceed its authority. Pelosi wrote that not one but both chambers of Congress must initiate a suit seeking to protect the legislature’s prerogatives—which would, due to the Senate filibuster, effectively subject all such suits to a supermajority 60-vote margin in that body. Likewise, the belief that Congress should pass corrective legislation rather than initiating legal action would effectively give the President a veto over any attempt to constrain his power, necessitating a two-thirds majority to clip his wings.

One would have thought that submitting a legal brief giving the executive such broad power one week before last November’s election might have given Nancy Pelosi pause. Pelosi may have been “with her,” but—surprise, surprise!—the voters had other designs. And now Pelosi and her Democratic colleagues could find themselves in a dilly of a pickle.

Obamacare Set A Horrible Precedent

To use but the most obvious example, Chuck Schumer and Nancy Pelosi’s strong objections meant this April’s omnibus spending bill did not include funding for the Trump Administration to complete a border wall. But under the rubric laid out in the lawmakers’ amicus brief last October, President Trump doesn’t need such an appropriation—he can invent one out of whole cloth, and Congress would lack the power to stop him from spending money not appropriated.

Therein lies the danger presented by the Obamacare payment precedent. President Obama’s Justice Department and House Democrats both argued that the structure of Obamacare implies an appropriation that does not exist—giving future Presidents an opening to invent appropriations on any subject upon which Congress has previously opined. And with both the Obama Administration and Democratic lawmakers asserting that Congress’ failure to prohibit such spending permits the President to do so, only a supermajority of lawmakers could prohibit virtually unchecked spending by the executive.

In their attempt to justify their slapdash Obamacare legislating, Democrats have laid the legal groundwork for future administrations to create appropriations where none exist—we literally have to pass the bill so that you can find out what is in it. While Democrats’ inability to include a 12-figure appropriation in a 2700-page bill doesn’t exactly inspire confidence in the legislative process, the answer lies not in yet another executive power grab of the kind Pelosi endorsed last fall. Democrats can whine about Trump’s supposed “sabotage” of Obamacare all they want, but their sabotage to our system of checks and balances would be far worse.

This post was originally published at The Federalist.

CBO Reveals Its Bias

Since the Congressional Budget Office (CBO) released its analysis of the House-passed health-care bill just before Memorial Day, conservatives have questioned CBO’s assumptions on several fronts—most notably scorekeepers’ almost dogmatic belief that an individual mandate holds the key to enticing tens of millions of Americans to purchase health coverage. But the CBO report revealed another key issue—the budget office’s inherent bias towards liberal cost-saving solutions rather than conservative ones.

That bias stems from one conclusion: Under the bill, a “few million people [CBO didn’t provide a more specific number] would buy policies that would not cover major medical risk.” In these cases, “the policies [purchased] would not provide sufficient financial protection to meet CBO’s definition of insurance coverage,” and “would not provide enough financial protection in the event of a serious and costly illness to be considered insurance.”

At first glance, it seems reasonable for CBO to, when analyzing legislation, determine whether individuals scored as having “insurance” actually possess coverage meeting that definition. However, that position looks more questionable when the budget office acknowledged in a December blog post the administrative and other difficulties in arriving at a uniform definition of private health insurance, which the office did not quantify—either in December or in its score of the House bill.

More importantly, though, at no point has CBO attempted to quantify whether and to what extent Americans—particularly those in government programs—are under-insured due to their inability to obtain medical treatment. Largely due to poor reimbursement levels for physicians and hospitals, some participants in programs like Medicaid may have great financial protection in theory, but little access to care in practice.

Conservative Versus Liberal Goals For Health Care

At the risk of stereotyping, conservatives often prefer less-comprehensive insurance—coverage largely for catastrophic expenses, with patients paying for many routine expenses out-of-pocket. Right-leaning analysts believe that by making costs explicit to patients—to use the wonky phrase, giving patients “skin in the game”—they will make smarter health care choices. By contrast, liberals generally make costs and tradeoffs opaque, supporting generous coverage of most medical procedures, while reducing costs to government through lower provider reimbursement levels often not visible to patients.

Obamacare provides an excellent example of the contrast. Two months after the law passed—while attempting to deflect the criticism that Democrats took money from Medicare to pay for Obamacare—Nancy Pelosi noted that the law included “no change in guaranteed benefits.”

But in reality, the vaunted “Medicare guarantee” that Pelosi and liberals purport to defend doesn’t exist. The law guarantees that the federal government will pay seniors’ doctors and hospitals for treating them, but it doesn’t guarantee that seniors will actually get seen by a doctor.

In government programs, low reimbursement levels can make treatment hard for patients to obtain. At a briefing on “under-insurance” several years ago, an official who used to run one state’s Medicaid program acknowledged the access problem in government programs, admitting that “a Medicaid card [is] a hunting license…a chance to go try to find a doctor.”

Obamacare Made A Bad Situation Worse

On provider reimbursement, Obamacare made a bad situation worse. The nonpartisan Medicare actuary considers a series of payment reductions included in the law so Draconian—by 2040, half of all hospitals, and 90 percent of home health agencies, would be unprofitable—that they will not go into effect, “to ensure Medicare beneficiaries continue to have access to health care services.”

CBO has acknowledged the limitations on access created by Obamacare. In 2014, it noted that the new Exchange plans created that year had lower physician reimbursement levels and narrower provider networks than most employer plans. It has also estimated last fall that, thanks to the Medicare payment reductions included in Obamacare, up to half of all hospitals nationwide could be operating in the red by 2025—which could harm access to care, not just for seniors but all Americans.

However, CBO has not attempted to quantify the effects of these reimbursement reductions on the end-users—patients. It seems somehow perverse that a state Medicaid program could reduce payment levels to such absurdly low levels (99 cents, perhaps?) that no doctor or hospital would treat those patients, yet these individuals would continue to be classified as “insured” by the budget office, while those whose private coverage exceeds CBO’s not-publicly-defined thresholds for “acceptable” insurance would not be.

Some critiques of CBO’s work on the House health care bill appear opportunistic. Protesting that many fewer Americans than CBO projects will drop coverage upon repeal of the individual mandate, without acknowledging that such a scenario would likely obliterate the budgetary savings in the House legislation, seems incongruous at best. But a budget office that examines only one side of the “under-insured” coin—Americans who face high out-of-pocket costs, but not those who cannot access care—likewise seems out of whack. Republicans in Congress should press CBO to quantify both sides of this important health-care issue.

This post was originally published at The Federalist.

Lessons of the AHCA Collapse

Like the British evacuation of Dunkirk more than seven decades ago, Friday’s abrupt decision to halt proceedings on the American Health Care Act (AHCA) prior to a House vote represented victory only in that it averted an even costlier defeat—an embarrassing floor vote seemingly destined to fail, or passage of a bill unloved by wide swathes of the public and lawmakers alike.

Whether that decision is ultimately viewed as a “deliverance”—as Winston Churchill dubbed the 1940 Dunkirk evacuation—will depend in no small part on whether lawmakers can, both individually and collectively, learn the right lessons from an entirely predictable defeat.

“What went wrong?” poses an erroneous query about this bill. The question is not why it failed, but why anyone thought it might succeed. Virtually all of the premises upon which the legislation was based proved faulty, and were easily proven faulty prior to its introduction. There’s little need for Monday-morning quarterbacking if only one can see the flaws in one’s strategy on the Sunday morning prior to the game.

Republicans Need to Remember How to Govern

Leadership outlined its strategy—such as it was—in a February 27 Wall Street Journal article: “Republican leaders are betting that the only way for Congress to repeal the Affordable Care Act is to set a bill in motion and gamble that fellow GOP lawmakers won’t dare to block it.”

Irrespective of what one thinks of the bill’s policy particulars—whether the bill represents a positive, coherent governing document and vision for the health care system—this thinking demonstrates that Republicans have to re-learn not just how to govern, but also how to legislate.

As a legislative strategy, the House’s gambit represented a puerile cross between the “chickie run” in “Rebel Without a Cause” and Hans Christen Andersen’s “The Emperor’s New Clothes.” Daring lawmakers to challenge the process, and attempting to bully and browbeat them into submission—“testosterone can get you in trouble,” as Rep. Mark Sanford (R-SC) reportedly noted during one meeting—does not a durable process make. Unsurprisingly, that process broke down after a mere 18 days.

While many stories have focused on Speaker Paul Ryan, some minds might turn instead to one of his predecessors, and an axiom used by the longest-tenured House speaker, Sam Rayburn: “There is no education in the second kick of a mule.” That the outcome seems predictable—indeed, was predicted by many in private conversations—makes it no less painful politically, or personally.

In circumstances such as these, there is a fine line between learning lessons and pointing fingers. Focusing on the personalities behind the legislative failure would only further enflame tensions, while serving little productive purpose. On the other hand, understanding the reasons the legislation was in many ways doomed from the start can help prevent future calamities. Of the flawed premises that lay behind the legislative strategy, three seem particularly problematic.

1. Starting with the House

The House’s decision to consider the legislation first seemed ill-considered at the time, given the difficulties the chamber encountered the last time it moved first on repealing Obamacare. In the fall 2015, Congress considered and passed, but President Obama vetoed, repeal legislation under special budget reconciliation procedures. Passing the bill represented a “dry run” testing what a Republican Congress could do to dismantle Obamacare, but for the Democratic president who remained in the White House.

But as I noted the week after last November’s election, the House’s 2015 repeal reconciliation bill suffered from numerous procedural flaws. That legislation originally repealed Obamacare’s Independent Payment Advisory Board (IPAB), even though such Senate procedures meant that this provision, with an incidental fiscal impact, could not remain on a budget reconciliation bill. The House-reported legislation also increased the deficit in the years beyond the 10-year budget window, subjecting it to a potentially fatal point-of-order in the Senate.

The House’s 2015 reconciliation bill contained so many procedural flaws that Senate Majority Leader Mitch McConnell had to introduce an entirely new substitute version of the legislation. Had he not, the Senate parliamentarian would have advised the Senate to strip the bill of its procedural protection as a reconciliation matter, forcing the House to start its process all over again.

Given that near-death experience fewer than 18 months ago, it made much more sense for the Senate to take the lead in crafting a reconciliation measure. At minimum, House staff needed to solicit greater feedback from the Senate regarding that chamber’s procedures during the drafting process, to ensure they wrote the bill consistent with the Senate’s budget reconciliation rules. Neither happened.

House leadership claimed they wrote their bill to comply with the Senate’s reconciliation rules. But experts in Senate procedure could readily see that AHCA as released suffered from multiple procedural flaws, several potentially fatal to the entire bill. Last week, days before its scheduled floor consideration, the relevant House committees released a managers amendment re-drafting the measure’s tax credit, precisely because of the procedural flaws in the initial version.

All of which makes one wonder why the House insisted on initiating action. The Senate not only has more detailed and arcane procedures to follow than the House, Republicans also hold a narrower majority in the upper chamber. While no more than 21 of 237  House Republicans (8.9 percent) can defect on a bill passing solely with Republican votes, no more than two of 52 Senate Republicans can defect in the upper chamber, a much narrower (3.9 percent) margin.

Due to both its procedural quirks and tighter vote margins, it made far more sense for the Senate to initiate legislative action. Yet this year, as in 2015, the House took the lead—and ran into the same procedural problems.

2. The Unrealistic Timetable

The day before House leadership released a document outlining their vision for what became AHCA, I published a lengthy analysis of the legislative environment. I concluded that any legislation featuring either comprehensive changes to Medicaid or a refundable tax credit—the former I generally favored, the latter I did not—just could not pass in the timetable allotted for it:

The likelihood that House Republicans can get a comprehensive “repeal-and-replace” bill—defined as one with either tax credits, Medicaid reform, or both—1) drafted; 2) cleared by the Senate parliamentarian; 3) scored favorably by CBO [the Congressional Budget Office]; and 4) with enough Member support to ensure it passes in time for a mark-up on March 1—two weeks from now—is a nice round number: Zero-point-zero percent.

Likewise the chances of enacting a comprehensive ‘repeal-and-replace’ bill by Congress’ Easter recess. It just won’t happen. For a bill signing ceremony for a comprehensive ‘repeal-and-replace’ bill, August recess seems a likelier, albeit still ambitious, target.

Nothing in the above passage proved inaccurate. House leadership even skipped steps in the process I outlined—going forward with markups without a CBO score, and not writing the bill to comply with Senate procedure until just before a scheduled House vote—yet still couldn’t meet their targets. This would lead most people to believe those targets were just too ambitious.

Two vignettes show the problems caused by the sheer haste of the process. First, the managers amendments released last Monday night had to be re-written on Tuesday night. In both cases, the House committees had to submit second-degree amendments “to address drafting issues,” because the original managers amendments had no fewer than ten separate drafting errors among them.

Second, the managers amendment included an extra pot of funds to increase the refundable tax credits given to those near retirement age. However, the legislation created that pot of money not by increasing the refundable credits, but by lowering thresholds for a deduction available to those who itemize medical expenses on their tax returns.

The decision to provide the additional funds through a deduction, rather than by adjusting the credits themselves, was almost certainly driven by the mechanics of budgetary scoring, and ultimately the bill’s timetable. While the Joint Committee on Taxation (JCT) could estimate the relatively straightforward financial effects of a deduction quickly, altering the tax credit levels for individuals aged 50-64 would create knock-on effects—would more individuals take the credit, would more individuals retire early and drop employer-sponsored coverage, etc.—taking CBO staff a week or more to model.

So, rather than “wasting” time coming up with a policy and finding out the effects of said policy, prior to House passage, congressional staff instead created a $90 billion “slush fund” and pledged to sort the details out later.

Just before Obamacare’s passage in March 2010, former House Speaker Nancy Pelosi infamously said “we have to pass the bill so that you can find out what is in it.” House Republicans took her multiple steps further: By including a “slush fund” designed to change later in the process, and proceeding to both committee markups and a vote on House passage without a final CBO score, congressional leadership guaranteed that anyone who voted for AHCA would not by definition have known what was intended to be in the bill, let alone the fiscal effects of such policies.

The end result was a group of members in vulnerable districts who voted for the bill in committee without a CBO score—and could suffer serious, if not fatal, political consequences for having done so. Some of these moderates hold substantial disagreements with conservatives on how to structure an Obamacare repeal. But it was not conservatives that compelled the moderates to cast a tough vote for the legislation in committee without a CBO score analyzing the bill’s fiscal and coverage impacts—it was the hyper-aggressive timetable.

3. Unproductive White House Coordination

While publicly President Trump and others made statements insisting that his administration was “100 percent behind” the House Republican plan, the divisions within the administration were an open secret on Capitol Hill. From staff to officials, many had misgivings about the policy behind the bill, the legislative tactics and strategy, or both.

Those differences helped affect the ultimate outcome. Ryan attempted to turn his legislation into a “binary choice”—either support this bill, or support Obamacare—granting conservatives some concessions during the drafting process, but few thereafter. By contrast, factions within the administration attempted to woo conservatives and fought House leadership, which resisted making changes.

Ironically, had the administration halted negotiations sooner, and demanded an immediate vote earlier last week, they might have had a better chance of winning that tally. (Whether that victory would have ultimately proved Pyrrhic is another story, but they might have eked out a victory nonetheless.) But because the White House and congressional leadership weren’t on the same page, the former’s negotiations with conservatives left moderates to slowly trickle away from the bill, such that by Friday, it was virtually impossible to find a coalition to reach 216 votes whichever way leadership turned.

Even as the momentum slowly sapped from the bill, the administration and Capitol Hill leaders remained at odds on tactics. The New York Times reported on Saturday that some in the administration wanted to hold a House vote, even an unsuccessful one, to find out who opposed President Trump. But making such a demand misunderstands the dynamic nature of votes in the House of Representatives.

While AHCA might have passed narrowly, it would not have failed narrowly. Once a critical mass of 30 or so Republican “noes” signaled the bill’s clear failure, members would have abandoned the politically unpopular legislation en masse—likely with the implicit or explicit support of House leadership. Having witnessed these “jailbreak” votes in the House, it’s possible that, had the White House forced the issue, the bottom could have fallen out on support for the bill. As a tactic to snuff out disloyal behavior, calling a vote on a doomed bill would have yielded little in the way of political intelligence—only more political damage.

Underneath Tactical Errors Is Philosophical Disagreement

Beneath the obvious tactical errors lie some fundamental disagreements within the Republican party and the conservative movement about Obamacare, the future of our health-care system, and even the role of government. As I have written elsewhere, those differences do not represent mere window-dressing. They are as sizable as they are substantive.

On the one hand, the conservative wing of the party has focused on repealing Obamacare, and lowering health costs—namely, the premiums that have risen substantially under the law. By contrast, moderates and centrists remain focused on its replacement, and ensuring that those who benefited from the law continue to have coverage under the new regime.

That divide between “repealers” and “replacers” represents a proxy for the debate between reducing costs and maximizing coverage, a debate that precedes Obamacare by several decades, if not several generations. Some have argued that facts on the ground—the individuals gaining coverage as a result of Obamacare—necessitate an approach focused on maintaining coverage numbers.

Others believe that “repeal means repeal,” that Republicans ran, and won, elections on repealing the law—including as recently as five months ago—and that breaking such a deeply ingrained pledge to voters would represent political malpractice of the highest order.

The drafters of the House bill attempted to split the ideological divide, in part by retaining the popular parts of Obamacare while minimizing the law’s drawbacks. Both the House bill and the Better Way plan that preceded it maintained Obamacare’s restrictions on pre-existing conditions, its requirement that insurers cover dependents under age 26, and its prohibition on annual and lifetime limits for health insurance.

But policy decisions come with trade-offs, and in health care in particular those trade-offs can prove troublesome. Barack Obama did not wish to impose a mandate to purchase health insurance, having fought against one during his 2008 primary campaign; but CBO scoring considerations forced him to endorse one in the bill that became Obamacare. Similarly, the “popular” insurance regulations that Republican leadership maintained in its bill were the same ones that raised premiums so appreciably when Obamacare went into effect.

The AHCA approach of repealing Obamacare’s mandates and subsidies while retaining most of its insurance regulations created what Yuval Levin, a policy wonk close to Ryan, called a “twisted, fun-house mirror approach” to prior conservative health policy that yielded “substantive incoherence.” Dropping the individual mandate while retaining most of the insurance regulations created a CBO score that showed substantial coverage losses while failing to lower premiums appreciably—the worst of all possible policy outcomes.

The ideological divisions within the Republican Party, and the incoherent muddle of legislation that attempted to bridge the two, may have been overcome had the House released its bill the morning after the election, on November 9. But it did not release the bill on November 9, or on December 9, or on January 9, or even on February 9. The House introduced its bill on March 6, with the goal of passing legislation through both chambers by April 6. That timetable didn’t envision reconciling ideological differences so much as it hoped to steamroll them. It was all-but-guaranteed not to end well.

Lessons For the Future

What then of the future? One can only but hope that Republicans follow the example of Kipling’s poem “The Lesson,” written during the Boer War: “Let us admit it fairly, as a business people should; We have had no end of a lesson: It will do us no end of good.”

But what are those lessons, and what good might result from heeding them? While the policy differences within factions of the Republican Party are sizable, the only way to bridge them lies through an open, transparent, and deliberative process—negotiating outcomes among all sides from the start, rather than imposing them from on high through fiat.

If, as President Reagan famously noted, “personnel is policy,” so too then process provides a key to optimal policy making. A good process by itself cannot create good policy, but bad process will almost assuredly result in bad policy outcomes. In the short- and long-term, five principles can provide the initial glimmer of a path forward from last Friday’s dark outcome.

1. Let the Senate Lead

The procedural details surrounding budget reconciliation, and the narrower margins in the upper chamber, both augur toward the Senate re-starting any action on health care. As a practical matter, tensions remain far too high—with tempers short, friendships among members and staff frayed, and patience thin—for the House to initiate any legislative action for at least the next few weeks.

On upcoming legislation ranging from appropriations to tax reform to additional action regarding Obamacare, the “world’s greatest deliberative body” will have to exercise its deliberative powers. The ideological gaps are no less narrow in the House than in the Senate—can Mike Lee and Susan Collins reach consensus on a path forward regarding Obamacare?—but the recriminations and scars of the past month smaller.

If the Senate, with its smaller margins and arcane procedures, can deliver a quality policy product, the House, having seen its legislation sink in mere weeks, might be much more inclined to adopt it as its own.

2. Listen

House leadership rightfully notes AHCA had its origins in the Better Way policy white paper released last June. Prior to that document’s release, leadership staff spent significant time and effort reaching out to members, interest groups, the think-tank community, and others to gain thoughts and feedback on their proposals.

But actual legislation is orders of magnitude more complex than a white paper. Moreover, Better Way and AHCA deviate from each other in multiple important respects. The Better Way proposal includes numerous provisions—incentives for wellness, conscience protections for health care professionals, and proposals to repeal sections of Obamacare regarding Medicare, and Medicare Advantage—never included in AHCA, or mentioned in any great detail as part of the House’s “three-phase” approach.

Meanwhile, AHCA doubles the funding for grants to states when compared to the Better Way proposal, and uses significantly different parameters for the state grants than the 2009 House Republican alternative to Obamacare referenced in the Better Way document.

It’s possible to speculate on why House leadership made all these changes, but leadership itself made very little attempt to communicate exactly why they made them, or even that they were making them at all. Saying that Better Way led to AHCA is like saying the Model T led to the DeLorean. The former are both health-care proposals just as the latter are both cars, but each differ in significant ways.

The process that led from Better Way to AHCA was almost as significant as the process that led from the Model T to the DeLorean, but was opaque to all but a few closely held staff. Even lawmakers who understood and supported every single element of the Better Way plan could rightfully feel whipsawed when presented with AHCA, told it was a “binary choice,” and they had to publicly support it within a few weeks of its introduction, or otherwise they would be voting to keep Obamacare in place and undermine a new president.

When the Republican Study Committee unveiled its health-care legislation in 2013, its public release culminated a months-long process of consultation and scrutiny of the legislative text itself. RSC staff reached out to dozens of policy experts (myself included), and spent hours going through the bill line-by-line to make sure the legislation would accomplish its intended goals, while keeping unintended consequences to a minimum.

AHCA would have benefited immensely from this type of under-the-radar analysis, rather than subjecting legislation not yet ready for prime time to the intense scrutiny that came with a white-hot political debate and a hyper-accelerated timeline.

3. Trust Experts

A note at the bottom of page 25 of a leaked draft of AHCA provides an important hint toward a larger issue. The bracketed note, in a passage regarding per capita cap reforms to Medicaid, calls for staff to “review with CMS [the Centers for Medicare and Medicaid Services] any conforming amendments required.”

Congressional staff I spoke with over the past few weeks questioned whether anyone within the relevant agencies had in fact reviewed the legislation, to provide the technical expertise necessary to ensure that AHCA could be implemented as written, and would actually result in a workable health-care system.

At the time the legislative process began, the Department of Health and Human Services (HHS) had relatively few political appointees—no more than a few dozen out of about 150 total spots filled, and a CMS administrator not confirmed until the week prior to the scheduled House vote. The combination of a stretched staff and mistrust between political and career appointees within the agencies could well have limited the exchange of critically important details regarding how to draft, and implement, the legislation.

In addition to working with career personnel at the agencies, congressional staff should also utilize the institutional knowledge of their predecessors. While working for the House Republican Conference in 2009, I made it a point to start the Obamacare debate by finding out what I didn’t know, reaching out to those who had gone through the “Hillarycare” debate 15 years prior. My idea came from an unlikely source—former senator Tom Daschle, who in his 2008 book “Critical” described how lawmakers went through a “Health Care University” of policy seminars in 1993. In trying to replicate those seminars for both members and staff, I hoped we could obtain some of the collective wisdom of the past that I knew I lacked.

As I had previously noted in November, most of the senior Republican health-care staff working on Capitol Hill during the Obamacare debate in 2009-10 have moved on to other posts. But they, and others like them, are not far removed from the process. Based on my experience, most would gladly offer technical guidance and expertise; in many cases, even the lobbyists would do so with “client hats” removed, in the hopes of arriving at the best possible product.

But reaching out in such a manner requires a deliberative and inclusive process; games of legislative hide-and-seek and talk of “binary choices” preclude the received wisdom of all but the select few participating in the policy-making.

4. Be Honest

The House Ways and Means Committee’s section-by-section summary of AHCA illustrates the dilemma lawmakers faced. Page three of the document, discussing verification of eligibility for the new tax credit, states that “the Secretary of the Treasury is empowered to create a system—building upon already developed systems—to deliver the credit.”

There’s just one minor detail missing: The “already developed systems” for verifying eligibility Ways and Means referenced are Obamacare eligibility systems. This goes a long way toward explaining the omission: If the House is using an Obamacare eligibility system to deliver a refundable tax credit (also included in Obamacare), how much of the law is it really repealing?

Capitol Hill leadership could never reconcile the inherent contradictions in their product. On MSNBC, Ways and Means Chairman Kevin Brady (R-TX) called AHCA “the best opportunity to deliver on our promise to repeal the awful law of Obamacare”—eliding the fact that the bill explicitly retains and utilizes portions of that “awful law.” When pressed, leadership staff relied upon absurd, legalistically parsed statements, afraid to admit that the bill retained portions of Obamacare’s infrastructure.

These Clintonian definitions—“It depends upon what the meaning of the word ‘repeal’ is”—do nothing but build mistrust among members and staff alike. At least some in the policy community felt that House leaders were relying upon Elizabeth MacDonough, the Senate’s parliamentarian, as a de facto human shield—claiming the House couldn’t repeal portions of Obamacare under budget reconciliation, when in fact leadership wouldn’t, for policy or political reasons.

The fact that House leaders claimed their bill comported with reconciliation requirements, yet had to re-write major portions of AHCA at the last minute because it did not, gives added credence to this theory.

Whenever “repeal-and-replace” legislation comes back before Congress, the leaders and committees preparing the legislation should include a list of all the major provisions of Obamacare not repealed by the measure, along with clear reasons why. Even if some members want a more robust repeal than that offered, transparency would at least prevent the corrosive mistrust—“You’re not being up-front about this, so what other things are you hiding?”—that comes from an opaque process.

5. Be Humble

More than perhaps any bill in recent memory, AHCA represented a feat of legislative hubris. As a policy matter, Obamacare imposed a more sweeping scope on the nation’s health-care system. But the tactics used to “sell” AHCA—“We’re doing this now, and in this way. Get on board, or get out of the way”—were far more brutal, and resulted in a brutal outcome, an outcome easily predicted, but the one its authors did not intend.

There is a different approach, one I’ve seen on display. Some job interviews are thoroughly unremarkable, but two during my tenure on Capitol Hill stand out—the chief of staff who described himself as a “servant leader,” one who ensures all the members of the team have the tools they need to succeed; and the legislative director who told me, “We want to make sure you have a voice.” Of course I took both jobs, and felt myself privileged to work in such inclusive and empowering environments.

In some ways, the process that led to AHCA represents the antithesis of servant leadership, with members being given a virtual ultimatum to support legislation many neither liked nor understood. But in its purest form, public service should be just that—service—to one’s constituents, and, in the case of elected congressional leaders, to the members who chose them.

A more humble, inclusive, open, and transparent process will not guarantee success. The policy differences among the disparate Republican factions are real, and may not ultimately be bridgeable. But an opaque, authoritarian, and rushed process will almost certainly guarantee failure, as it did in the case of AHCA.

Listening Is Crucial

Ultimately, the failure to legislate on AHCA lay in a failure to listen to the policy concerns of Members, and to the warning signs present from the start. One can only hope that Republicans learn from this proverbial mule-kick, and start listening to each other more carefully and more closely. That process can yield the wisdom and judgment that comes from understanding, which can only help to heal the many breaches within the party following the events of recent weeks.

On November 8, Republicans received an important gift from voters—the chance to serve the country. Recovering from last week’s setback will require leaders of a humbled party to recommit themselves to service, both to the American people and to each other, in service of a common good. The chance to serve the American people is solely within the public’s gift. That gift, if and when squandered, will likely not be renewed for a long time.

This post was originally published at The Federalist.

Past as Prologue? A Review of “The System”

A young president promising hope and change takes over the White House. Immediately embarking upon a major health-care initiative, he becomes trapped amidst warring factions in his party in Congress, bickering interest groups, and an angry public, all laying the groundwork for a resounding electoral defeat.

Barack Obama, circa 2009-10? Most definitely. But the same story also applies to Bill Clinton’s first two years in office, a period marked by a health-care debate in 1993-94 that paved the way for the Republican takeover of both houses of Congress.

In their seminal work “The System,” Haynes Johnson and David Broder recount the events of 1993-94 in detail—explaining not just how the Clinton health initiative failed, but also why. Anyone following the debate on Obamacare repeal should take time over the holidays to read “The System” to better understand what may await Congress and Washington next year. After all, why spend time arguing with your in-laws at the holiday table when you can read about people arguing in Congress two decades ago?

Echoes of History

For those following events of the past few years, the Clinton health debate as profiled in “The System” provides interesting echoes between past and present. Here is Karen Ignani of the AFL-CIO, viewed as a single-payer supporter and complaining that insurance companies could still “game the system” under some proposed reforms. Ironic sentiments indeed, as Ignani went on to chair the health insurance industry’s trade association during the Obamacare debate.

There are references to health care becoming a president’s Waterloo—Johnson and Broder attribute that quote to Grover Norquist, years before Sen. Jim DeMint uttered it in 2009. Max Baucus makes an appearance—he opposed in 1994 the employer mandate he included in Obamacare in 2009—as do raucous rallies in the summer of 1994, presaging the Obamacare town halls 15 years later.

Then there are the bigger lessons and themes that helped define the larger debate:

“Events, Dear Boy, Events:” The axiom attributed to Harold Macmillan about leaders being cast adrift by crises out of their control applied to the Clintons’ health-care debate. Foreign crises in Somalia (see “Black Hawk Down”) and Haiti sapped time on the presidential calendar and press attention, and distracted messaging. During the second half of 2009, Obama spent most of his time and energy focused on health care, leading some to conclude he had turned away from solving the economic crisis.

Old Bulls and Power Centers: “The System “spends much more time profiling the chairs of the respective congressional committees—including Dan Rostenkowski at House Ways and Means, John Dingell at House Energy and Commerce, and Patrick Moynihan at Senate Finance—than would have been warranted in 2009-10. While committee chairs held great power in the early 1990s, 15 years later House Speaker Nancy Pelosi and Senate Majority Leader Harry Reid called most of the legislative shots from their leadership offices.

Whereas the House marked up three very different versions of health-care legislation in 1993-94, all three committees started from the same chairman’s mark in 2009. With Speaker Paul Ryan, like John Boehner before him, running a much more diffuse leadership operation than Pelosi’s tightly controlled ship, it remains to be seen whether congressional leaders can drive consensus on both policy strategy and legislative tactics.

The Filibuster: At the beginning of the legislative debate in 1993, Robert Byrd—a guardian of Senate rules and procedures—pleaded for Democrats not to try and enact their health agenda using budget reconciliation procedures to avoid a filibuster. Democrats (begrudgingly) followed his advice in 1993, only to ignore his pleadings 16 years later, using reconciliation to ram through changes to Obamacare. Likewise, what and how Republicans use reconciliation, and Democrats use the filibuster, on health care will doubtless define next year’s Senate debate.

Many Obama White House operatives such as Rahm Emanuel, having lived through the Clinton debate, followed the exact opposite playbook to pass Obamacare.

They used the time between 1993 and 2009 to narrow their policy differences as a party. Rather than debating between a single-payer system and managed competition, most of the political wrangling focused on the narrower issue of a government-run “public option.” Rather than writing a massive, 1,300-page bill and dropping it on Capitol Hill’s lap, they deferred to congressional leaders early on. Rather than bashing special interest groups publicly, they cut “rock-solid deals” behind closed doors to win industry support. While their strategy ultimately led to legislative success, the electoral consequences proved eerily similar.

Lack of Institutional Knowledge

The example of Team Obama aside, Washington and Washingtonians sometimes have short memories. Recently a reporter e-mailed asking me if I knew of someone who used to work on health care issues for Vice President-elect Mike Pence. (Um, have you read my bio…?) Likewise, reporters consider “longtime advisers” those who have worked the issue since the last presidential election. While there is no substitute for experience itself, a robust knowledge of history would come in a close second.

Those who underestimate the task facing congressional Republicans would do well to read “The System.” Having read it for the first time the week of President Obama’s 2009 inauguration, I was less surprised by how that year played out on Capitol Hill than I was surprised by the eerie similarities.

George Santayana’s saying that “Those who cannot remember the past are condemned to repeat it” bears more than a grain of truth. History may not repeat itself exactly, but it does run in cycles. Those who read “The System” now will better understand the cycle about to unfold before us in the year ahead.

This post was originally published at The Federalist.

Four Ways Donald Trump Can Start Dismantling Obamacare on Day One

Having led a populist uprising that propelled him to the presidency, Donald Trump will now face pressure to make good on his campaign promise to repeal Obamacare. However, because President Obama used executive overreach to implement so much of the law, Trump can begin dismantling it immediately upon taking office.

The short version comes down to this: End cronyist bailouts, and confront the health insurers behind them. Want more details? Read on.

1. End Unconstitutional Cost-Sharing Subsidies

In May, Judge Rosemary Collyer ruled in a lawsuit brought by the House of Representatives that the Obama administration had illegally disbursed cost-sharing subsidies to insurers without an appropriation. These subsidies—separate and distinct from the law’s premium subsidies—reimburse insurers for discounted deductibles and co-payments they provide to some low-income beneficiaries.

While the text of the law provides an explicit appropriation for the premium subsidies, Congress nowhere granted the executive authority to spend money on the cost-sharing subsidies. President Obama, ignoring this clear legal restraint, has paid out roughly $14 billion in cost-sharing subsidies anyway.

Trump should immediately 1) revoke the Obama administration’s appeal of Collyer’s ruling in the House’s lawsuit, House v. Burwell, and 2) stop providing cost-sharing subsidies to insurers unless and until Congress grants an explicit appropriation for same.

2. Follow the Law on Reinsurance

House v. Burwell represents but one case in which legal experts have ruled the Obama administration violated the law by bailing out insurers. In September, the Government Accountability Office (GAO) handed down a ruling in the separate case of Obamacare’s reinsurance program.

The law states that, once reinsurance funds come in, Treasury should get repaid for the $5 billion cost of a transitional Obamacare program before insurers receive reimbursement for their high-cost patients. GAO, like the non-partisan Congressional Research Service before it, concluded that the Obama administration violated the text of Obamacare by prioritizing payments to insurers over and above payments to the Treasury.

Trump should immediately ensure that Treasury is repaid all the $5 billion it is owed before insurance companies get repaid, as the law currently requires. He can also look to sue insurance companies to make the Treasury whole.

3. Prevent a Risk Corridor Bailout

In recent weeks, the Obama administration has sought to settle lawsuits raised by insurance companies looking to resolve unpaid claims on Obamacare’s risk corridor program. While Congress prohibited taxpayer funds from being used to bail out insurance companies—twice—the administration apparently wishes to enact a backdoor bailout prior to leaving office.

Under this mechanism, Justice Department attorneys would sign off on using the obscure Judgment Fund to settle the risk corridor lawsuits, in an attempt to circumvent the congressional appropriations restriction.

Trump should immediately 1) direct the Justice Department and the Centers for Medicare and Medicaid Services (CMS) not to settle any risk corridor lawsuits, 2) direct the Treasury not to make payments from the Judgment Fund for any settlements related to such lawsuits, and 3) ask Congress for clarifying language to prohibit the Judgment Fund from being used to pay out any settlements related to such lawsuits.

4. Rage Against the (Insurance) Machine

Trump ran as a populist against the corrupting influence of special interests. To that end, he would do well to point out that health insurance companies have made record profits, nearly doubling during the Obama years to a whopping $15 billion in 2015. It’s also worth noting that special interests enthusiastically embraced Obamacare as a way to fatten their bottom lines—witness the pharmaceutical industry’s “rock solid deal” supporting the law, and the ads they ran seeking its passage.

As others have noted elsewhere, if Trump ends the flow of cost-sharing subsidies upon taking office, insurers may attempt to argue that legal clauses permit them to exit the Obamacare exchanges immediately. Over and above the legal question of whether CMS had the authority to make such an agreement—binding the federal government to a continuous flow of unconstitutional spending—lies a broader political question: Would insurers, while making record profits, deliberately throw the country’s insurance markets into chaos because a newly elected administration would not continue paying them tribute in the form of unconstitutional bailouts?

For years, Democrats sought political profit by portraying Republicans as “the handmaidens of the insurance companies.” Anger against premium increases by Anthem in 2010 helped compel Democrats to enact Obamacare, even after Scott Brown’s stunning Senate upset in Massachusetts. It would be a delicious irony indeed for a Trump administration to continue the political realignment begun last evening by demonstrating to the American public just how much Democrats have relied upon crony capitalism and corrupting special interests to enact their agenda. Nancy Pelosi and K Street lobbyists were made for each other—perhaps it only took Donald Trump to bring them together.

This post was originally published at The Federalist.

House Democrats Endorse a President Trump Power Grab

Last week, eleven leading House Democrats released a brief in a lawsuit regarding Obamacare, but one that could have implications far beyond this President’s health care law. Essentially, the Democratic leaders argued that courts had no power to intervene where a President spends money not appropriated by Congress—a position that the Democrats may endorse when the President in question is one of their own party, but one they will live to regret when the executive holds differing political views.

The brief in question was an amicus curiae filing in House v. Burwell, a case involving the legality of Obamacare’s cost-sharing subsidies. The text of the law nowhere provides an explicit appropriation for such subsidies—but the Obama Administration has disbursed funds to insurers regardless. In May, United States District Court Judge Rosemary Collyer ruled for the House of Representatives, ordering the Administration to stop the subsidy payments. House Minority Leader Nancy Pelosi and several of her Democratic colleagues filed the brief with the U.S. Court of Appeals for the District of Columbia, currently considering the Administration’s appeal of the District Court ruling.

The Democrats’ brief argues that the text of the law implies a subsidy for the cost-sharing subsidies, even if it did not say so outright. But more troublingly, the amicus filing discourages the Court of Appeals from even considering the merits of the case—encouraging the court instead to dismiss the case for lack of standing.

To read the lawmakers’ brief, Congress would have little recourse to the courts for relief should the executive spend money not appropriated. So long as a President at least makes an attempt to argue the existence of some appropriation, then the matter becomes what the Democrat lawmakers call “a quintessential disagreement about the proper interpretation of” statutes, one that the judicial branch should leave to the political branches. To Pelosi and her colleagues, the President violates the Constitution “any time the executive branch takes some affirmative action based on a misinterpretation of a federal statute,” since such actions involve spending money—but few if any of these violations warrant judicial intervention.

Surprisingly for a brief filed by a group of legislators, the amicus does not even articulate a clear set of circumstances when the legislature could legitimately sue the executive, other than to argue that House v. Burwell does not warrant such action. The Pelosi brief argues that not just one, but both Houses of Congress, must authorize such a suit—in other words, a Democratic-controlled Senate could block a Republican-led House from suing the President, and vice versa. It claims that a Congress injured by the President should use non-judicial means to remedy disputes, by passing corrective legislation—even though the President could veto such legislation, allowing his violations to stand unless 2/3rds of Congress agrees to rebuke him—or conducting Congressional oversight. As comforting as these remedies might sound in theory, few would likely prove effective in practice.

In an Obamacare context, House Democrats may consider complaints about the Constitution and the “power of the purse” mere trifling inconveniences. But they have just as much reason to be concerned as Republicans, for a future Administration could use the Obamacare precedents as grounds to make policy decisions few Democrats would favor.

To use a totally hypothetical example, suppose that a future President believed that—as this Administration has argued in court—that the context and structure of our nation’s immigration laws give the executive unlimited funding to build a big, beautiful wall—a yuuuuge wall, even—without Congress’ consent. Suppose also that said future President argued—as the House Democrats argued in their brief, and an Obama Administration official testified with a straight face before the House Ways and Means Committee in July—that because Congress didn’t pass legislation explicitly prohibiting it from doing so, it could spend unlimited funds on a deportation force to remove undocumented immigrants? Would Democrats value their constitutional prerogatives so lightly under those circumstances?

Call this a hunch, but I doubt that, under the immigration scenarios outlined above, the Democratic lawmakers would content themselves with the remedies they have laid forth in their brief about Obamacare’s cost-sharing subsidies. Faced with a President spending billions of dollars on a deportation force never appropriated by Congress, would Nancy Pelosi merely content herself with conducting hearings and “appeal[ing] to the public,” as her brief argues in the Obamacare context? Hardly.

The core issue surrounding the cost-sharing subsidies is not Obamacare, but the rule of law—a principle that, as Churchill noted, has existed since the barons met King John at Runnymede eight centuries ago: “Rex non debet esse sub homine, sed sub Deo et lege—the king should not be below man, but below God and the law.” A President cannot assume regal powers by spending money never granted by the peoples’ tribunes, essentially daring the courts and Congress to stop him.

That’s the point of House Republicans’ suit on the cost-sharing subsidies, and Judge Collyer’s ruling in May upholding the House’s position. And it’s a point that, their amicus brief notwithstanding, House Democrats should learn to discover and embrace. Because at some point in the future—whether immediately after tomorrow’s election, or years from now—they will find reason aplenty to cling to those important constitutional principles.