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Category Archives: Donald Trump
Barring something unexpected, as discussed in Doc Jess’s post, the major action for the rest of this Congress on health care is likely to be at the administrative level with Tom Price doing his best to undermine the Affordable Care Act. However, there have been some unanticipated holes that have developed over the past seven years that do need to be fixed. As such, if Democrats regain control of the House and Senate in 2019 what issues should they be looking to address.
At the top of my list is the Medicaid expansion hole. Back in 2012, the Supreme Court ruled that states did not have to participate in the Medicaid expansion. The Affordable Care Act assumed that every state was going to participate in the expansion and only provided for subsidies for those who did not qualify for Medicaid. When a significant number of states opted to not expand Medicaid coverage, this created a group who earned to much to sign up for Medicaid, but too little to get subsidies to purchase insurance. The obvious fix is to expand the subsidies to cover this gap group.
The second issue concerns the exchanges. Again, the Affordable Care Act assumed that most (if not all) states would opt to set up exchanges just on principles of state autonomy. (Why would Republicans who complain about the feds taking over the insurance market let the feds take over the insurance market in their states?) It turned out that Republicans in the state wanted the symbolism of resisting more than actual local control. This problem offers a chance to offer the Republicans a two-edged sword. The Republicans complain that one of the problems with health insurance is that companies are unable to offer policies that cross state lines. (Placing the blame on regulations is not accurate, and the biggest restraint on such policies is the need of insurance companies to have deals with the local hospitals.) So I would offer up for discussion an exemption for policies offered on the federal exchange. If a state does not have its own exchange, policies on the federal exchange will be exempt from state regulations and will only be subject to federal regulations. If a state wants to regulate those policies, it can take over the exchange. If not, a state will not be permitted to sues state regulations to obstruct the federal exchange. My hunch says that the states will not opt to set up their own exchanges and that the exemption of insurance companies from state regulations will not increase the number of policies that cross state lines.
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.
In the past several weeks, we have heard ranting out of the White House about a “deep state” conspiracy to frustrate Donald Trump’s objectives. It is only this current fact-free administration which could turn a well-understand aspect of the American government — mentioned in political science courses for over half a century — into a sinister conspiracy aimed at President Trump. It’s no secret that bureaucracies across the world (not just in the U.S.) function in their own peculiar ways to keep the government functioning — even when elected officials would rather destroy the government. There are, of course, some features that are driving the Trumpistas crazy.
- The United States is not a dictatorship. The jobs and duties of the various departments and agencies are defined by statutes and existing regulations. Because there are grey areas in these statutes and regulations, the executive branch does have some discretion in interpreting them (as discussed regularly in the posts about legal issues). However, the President can’t on his own enact new laws or repeal existing laws. Thus, however, much a President might see a need for new revenues to balance the budget, he can’t simply order the Treasury Department to start collecting a new $1 per day tax on every hotel room in the country. Similarly, the President can’t simply order the permanent resident status of a legal immigrant revoked simply because that permanent resident posts a tweet criticizing the President.
2. At the federal level, most individuals working for the federal government are careerists who have civil service protection. Even for agencies that are exempt from civil service protection (which includes many state and city governments), there are First Amendment protections against discharge for political reasons. Barring gross insubordination, these individuals can keep on doing their jobs as they understand their responsibilities.
3. Most career civil servants identify with the mission of their department or agency. It was not a shock that the organizations representing Immigrations and Customs Enforcement and Border Patrol employees were sympathetic to Trump’s proposals to beef up border security and to step up deportation activity. Similarly, you would expect that career attorneys in the Civil Rights Division believe in enforcing civil rights laws and that those working in the foreign service believe in diplomacy and the traditional foreign policy objectives of the U.S. government. You may have some temporary influx of “rookies” when government changes hands that agree with the goals of the new administration. In the long term, however, it is hard to stay in a job when you disagree with the basic goal of the job. Additionally, many jobs in the federal government (e.g. EPA and the FDA) require a certain educational background. Most rational persons do not choose their college majors or graduate/professional schools for the purpose of one day undermining a government department.
One of the advantages that science fiction has as a genre is the ability of writers to recast issues by presenting them in another place and time. On occasion, the transformation of our problems into another situation can be forced (e.g., the original Star Trek episode in which the racial conflict was between those who were black on the left side of the face and those who were black on the right side of the face).
During the third quarter of last century, one of the top science fiction writers was Robert Heinlein. While most famous for his novel Stranger in a Strange Land, his early career consisted of a series of short stories and novellas that formed a “future history” — taking the United States from the mid-20th Century until around 2200. In several of the stories in this sequence, Heinlein mentions Nehemiah Scudder, a preacher who became popular enough to be elected president in 2012. Scudder then establishes a religious dictatorship which governs until it is overthrown around 2100. While Heinlein never got around to writing a story focused on Scudder’s rise to power, his summary of that rise in other stories identified some aspects of American politics that were not immune to the rise of a demagogue. So in what ways does the election of Donald Trump mirror those aspects and in what ways do they differ.
The obvious difference is that Donald Trump is not a fundamentalist preacher. However, writing in 1941, (well before the rise of the Moral Majority), Heinlein noted the power of fundamentalism in American power. While Trump should not have been the natural candidate for fundamentalists, somehow he managed to get the support of fundamentalists over other “better fitting” candidates during the primary followed by the usual support for the Republican nominee in the general election.
Tonight 45 will speak about the budget plan his folks leaked out yesterday. He’ll likely speak about other things, also, but that budget is all over the news and he’ll capitalize on that. However, it’s rare that Congress actually passes a budget (the last time was in 2015, and that was the first time in six years) and rarer still that the presidential framework made it through the process.
So, let’s take a look at what was proposed, where it falls apart, and then what the process actually involves. Go get a cup of coffee, you’re going to need it.
First, the good news. Appropriations come from Congress, not from the Executive branch. Per the Origination clause in the Constitution, all appropriations bills must start in the House, although the Senate may concur and/or offer amendments. In real life, normally this leads to negotiations between the Chambers prior to anything being enacted. Thus, nothing is happening quickly. That means there is time to lobby your reps for things that matter to you.
Last night, we in Philly heard that hundreds of headstones were turned over Saturday night at a Jewish cemetery, a week after similar vandalism in St. Louis. Many people are saddened, appalled and surprised. They should be sad and appalled, but not surprised. This is Trump’s America.
I have been working with Indivisible locally, and I am heartened by the number of people completely new to politics who are suddenly aware, and ready to take action to both resist the Trump agenda, and help elect people who will serve America, and not what is actually the Bannon administration.
I keep hearing two themes through my work with Indivisible. First, people are concerned about what they can do to stop hate. And by “hate” I mean not just the vandalism, but the verbal abuse people see foisted upon innocent people, just for the colour of their skin, The ICE roundups are another form of hate: people question what they can do to help those who will be caught up in the dragnets. Hate also in the form of the administration’s moves against sick people (“repeal Obamacare” and dismantle Medicaid), Hate in the form of transgender bathroom rights. I’m a doctor, and I’m telling you, the only thing that matters is that you wash your hands. (If you’re a long-term reader, you remember back to SARS and fingers, nails, fingers, fingers, fingers.) And let’s not forget the hate of literacy in terms of claiming the media is the “enemy of the people”. The hate is creeping down from the Cheeto Team, and up from the GOP state legislatures.
On Tuesday, the maniac-in-chief nominated Judge Neil Gorsuch to fill the vacancy left by the death of Antonin Scalia. This nomination creates a significant question for Senate Democrats on how to proceed.
On the merits, at least based on current public knowledge which may change, Judge Gorsuch is a typical member of the Republican conservative establishment: The son of Reagan’s EPA chief, educated at top schools, a mix of government and private practice before being appointed to the bench by George W. While it is tough to tell for sure by a decisions on a lower court — where judge’s are bound by Supreme Court precedent and are trying to read between the lines to avoid reversal — Judge Gorsuch seems very similar to Justice Scalia. It is not really possible to tell if he is on the Alito (more conservative) or Roberts (more moderate) side of Scalia. In any case, with the exception of some criminal cases, Justice Scalia was rarely the fifth vote in a progressive decision. As such, barring someone on the loony side, it is unlikely that any Trump nominee is going to substantially alter the balance on the Supreme Court from what it was before Trump died. (Of course, it would have been preferable to have a Democratic president replacing Justice Scalia, but that is not now a possibility.) And Trump is likely to nominate a candidate in his/her upper 40s or lower 50s like Judge Gorsuch, so the next opportunity for Democrats to replace any of the four conservative judges will be at least a decade or more in the future barring any unexpected deaths. Given this reality, the question is how hard to fight this nomination.
The battle over judicial nominations — like everything else — has become more a matter of political trench warfare with each cycle. In the 1960s, the nomination of Thurgood Marshall was contentious, but — at that time — the ideological lines between the two parties were blurrier and the opposition was regional (Southern senators of both parties) rather than partisan. However, with the exception of the nomination of Abe Fortas in 1968, all nominees received a vote on the merits (except for those who withdrew before any floor vote) until 2016. At the time of his retirement in 1991, Justice Marshall was one of two members of the court who received double digit “no” votes on confirmation (with 11 no votes). However, the last four nominees all received more than twenty “no” votes and only Chief Justice Roberts received less than thirty “no” votes.
We knew the policy was coming. We should have guessed that Trump would botch it — both in terms of the actual policy and in terms of how it was implemented. Now, we have a fustercluck of a “temporary” Arab ban policy. There are potential legal issues involved which I will discuss below. As a major cautionary note, I don’t do immigration law. Despite what the U.S. Supreme Court may think, those of us who deal in ordinary criminal law don’t really get the nuances of immigration law nor all of the technical terms involved.
Before turning to the potential legal challenges, what has happened over the past five days is exactly why there are usual procedures for issuing executive orders. While Trump would probably have still tended toward the outrageous in this policy, some of the problems might have been avoided if things had been handled better. Instead, we have a policy statement masquerading as a policy.
Normally before an executive order is released, the White House staff has consulted with the effected agencies — here, State, Homeland Security, I.C.E., U.S.C.I.S., and T.S.A. — to get their input and make sure that everyone is on the same page at the time of implementation. Additionally, the Office of Legal Counsel typically has gone through the order to make sure that it is legally defensible — not necessarily a winning defense, but at least no glaring fatal flaws for which there is not even a colorable defense — and clearly sets forth the policy.
Eight years ago, when President Obama took office, Faux News and others spent a good chunk of their time complaining about President Obama’s use of “czars.” By czar, they meant members of the White House staff who did not have to face Senate confirmation who were assigned responsibility for certain policy areas. Now that Republicans are back in the White House, they are about to learn the same lesson that the George W. Bush and the Obama Administrations knew — that the White House staff serves an important role in a functioning government. But, you can be pretty sure that these positions will not be referred to as czars by Fox News.
There are several reasons why Presidents tend to depend on “staff” advisors rather than executive branch people subject to Senate confirmation. The first reason has to do with the nature of Senate confirmations.
Most of our allies are parliamentary democracies. While there is some distinction between the appointees to ministries (mostly members of parliament) and the Prime Ministers personal staff, the bottom line in most parliamentary democracies is that parliament does not individually confirm members of the government. Depending on the country, parliament may have a single vote to approve the entire government (but, in others, the government takes power without any formal vote). This process puts the full government in place on Day 1 of the new government.
Two executive orders were issued tonight. The first basically prohibits all government agencies from implementing any rules. They can send nothing to CFR. Remember, while Congress passes laws, it’s the agencies that implement them, and they do so via regs sent to CFR for public review and comment and then implementation. Full memo after the jump.
The second order basically allows Ben Carson to do anything possible to prevent the ACA from functioning. Again, full text after the jump. Welcome to North Korea — they are dismantling the Federal government, just like they said they would. And in answer to the question: why are you publishing this? I say: so that there is a record.