There is an old saying that a week is a lifetime in politics. In most weeks, there is a lot happening either behind the scenes or at lower levels (e.g., committee hearings and markups on bills that nobody is watching). It is the rare week, however, that so much is taking place front and center competing for the attention of the American public.
The big story of the week was the non-vote on and the collapse of the Republican effort at major health care reform — the so-called Affordable Health Care Act (a name that in itself was an attack on the bill that it was trying to “repeal and replace,” the Affordable Care Act. There are several significant aspects to this non-event.
First, despite their efforts, Donald Trump and Paul Ryan could not get the sizable Republican majority in the House to pass a bill (forget the exact details of the last version of the bill, they could not get a majority behind any version) on one of the top Republican priorities of the past seven years. While Trump may have been a great negotiator, it is very easy to reach a two-sided deal. (Of course, it’s possible that Trump’s belief in his negotiating skill may be one of his great delusions. He may have just been offering the right deal at the right time and actually have been taken to the cleaners in his business negotiations.)When you have three or more sides to a deal, however, it becomes very difficult to keep everybody on board. This problem is particularly true in politics — when one faction thinks that a bill is too conservative and the other faction thinks that the bill is too liberal, there really isn’t any change that could make both sides happy. At that point, it’s not really about negotiating but selling.
It’s pretty clear why the vote was cancelled. Ryan was facing a humiliating defeat that would have been the American equivalent of a vote of no-confidence. Some whip counts had the bill likely to get only 170-190 votes. In other words, if the Democrats had put up a substitute, the Democratic alternative might have gotten more votes than the Trump-Ryan bill. As has been discussed many times in the past, it is debatable whether the Republican Party exists as anything other than a line on the ballot. The various factions of the Republican Party are unified only by their agreement that they are not Democrats. While the Democratic Party has its own problems, most Democrats agree on the general shape of a policy. Our disagreement tends to be on the details (e.g., should the minimum wage be raised to $12 or $15, should it be automatically indexed for inflation, should it be indexed to the local cost of living) and what can be passed. It is debatable how much longer Ryan can serve as Speaker of the House if he can’t get significant legislation passed. The next big challenge will be tax reform — something else that only unifies the Republican Party as a slogan and not as a real policy.
Second, the failure of the attempt to legislatively destroy the Affordable Care Act is not the end of the process. As discussed in other posts, most statutes give significant discretion to regulatory agencies. The Trump Administration has the responsibility for the implementation of the Affordable Care Act and the people responsible for the regulations are hostile to the basic goals of the Affordable Care Act. There will be significant court fights over the next three to four years as the Department of Health and Human Services attempts to repeal or undermine the Affordable Care Act through regulations.
Third, any attempt to fix the Affordable Care Act is probably dead through the 2018 elections (just as it has been dead since 2010). It is all but impossible to pass a perfect bill. Some provisions that would work in practice generate too much controversy during the legislative process and get dropped. The process of assembling enough votes to pass legislation typically requires some changes that eliminate or weaken significant elements of the program. Even if a bill were passed intact, the exact policy mix is based on a projection of how the public will respond to the mix of incentives and penalties contained in the bill. Because the way people act in the real world does not correspond to any model of how “reasonable economic person” should act, that first mix of incentives will almost always be wrong — sometimes getting too much of the desired response, sometimes getting not enough. In short, every program will need some changes to fix what the initial version got wrong. The Republican Party unfortunately appears to have decided to wait and see if the cumulative effects of the minor flaws in the Affordable Care Act will lead to disaster in the health care market. (I think that this is the dumbest idea ever. While there are some problems developing, I don’t think that we are anywhere near market collapse. More importantly, if the market does collapse, it is unclear that the Republican could rebuild their preferred version of the market out of the wreckage.)
Fourth, there remains the issue of whether the procedure that the Republicans used for this bill will be the model for future legislation. The AHCA was not just fast-tracked; it was absurdly fast-tracked. For most bills, there are hearings on the bill, followed by committee-markup, followed by floor debate (including amendments) in both houses. This process takes time. (For the original Affordable Care Act, the Republicans claimed that Democrats were moving too fast by having a final vote after over eight months of hearings, markup, and debate.) There were no hearings for the AHCA. Mark-up took place less than a week after the filing of the bill, and the floor vote would have taken place in less than three weeks after filing (with a similar fast track planned for the Senate). Of course, such a fast track makes it hard for people to begin to focus and discuss particular problems with the legislation, hindering the ability of the opposition to develop. When it works, such a fast track makes strategic sense. Thus, could this be the new normal.
Of course, health care was not the only thing happening this week. There was also the hearings of the House Intelligence Committee on Russia’s role in the campaign. Both the hearing and its aftermath were big. The hearings made clear to anyone with a brain that Trump’s allegations that there was any type of surveillance directed at the Trump campaign or the transition are delusional. They also made clear that several people associated with the Trump campaign or the transition did engage in some forms of misconduct and that the FBI is investigating such misconduct. (Whether those investigations lead to any big fish currently in the Trump Administration is unclear.) Lastly, it is clear that the current chair of the House Intelligence Committee is too closely associated with the Trump Administration to fairly head any congressional investigation into this issue.
And if that was not enough, the Senate had its own hearings this week on the nomination of Neal Gorsuch to the Supreme Court. As always, the nominee was frustrating in not answering questions about what agenda he will be bringing to the Supreme Court. And there are rumors floating out there that are concerning regarding comments that Judge Gorsuch may have made about maternity leave. It is unclear, however, that there is the type of smoking gun that could lead Republican Senators to vote against Judge Gorsuch.
Lastly, in what may have been buried in the news in light of everything else, the Supreme Court issued a significant ruling on presidential appointment powers. In an opinion addressing the validity of the appointment of an acting general counsel to the National Labor Relations Board, the Supreme Court broadly interpreted a federal statute limiting who can serve in an “acting” capacity for a vacant position that requires Senate confirmation. The short version of the opinion is that, a person nominated to fill a vacant position may not serve in that position in an “acting” capacity unless that person had served as first assistant to that position for at least three of the last twelve months. In short, this opinion makes it much harder for an Administration to temporarily fill a vacant position with a person of its choosing, even if the Administration intends to promote from within an agency. In particular, it is highly unlikely that any nominee for a position will be eligible to run an agency as the acting head of the agency.
Given the problem that this Administration is having with finding nominees for such positions, anything that hinders the ability of this Administration to put its own people in charge while the Senate considers nominees has to be frustrating. (Another example of how the partisan separation of powers litigation that Republicans filed over the past eight years is coming back to bite them.) Of course, this Administration has its own unique solution. Unlike past administrations which used “czars” in the White House to run policy, the Trump Administration appears to have settled on a different aspect of Russian history — the commissar. According to report, the White House staff is sending liasons to office at various departments and agencies to assure that the departments and agencies are complying with the White House goals, policies, and directives. The practice of having political officers to assure loyalty worked so well (not) for the Soviet Union’s military. So of course, the Russophile-in-Chief decided to adopt the same idea for the U.S. government.
At the end of the day, some very big stones were thrown into the pond this week. Undoubtedly, we will be talking a lot more about the ripples over the next several months (and maybe even into the next year when they become issues in the 2018 elections).