Free college is a philosophical flashpoint for progressives

Governor Andrew Cuomo recently made New York the first state to offer free college tuition at public universities. But this impressive policy achievement is dividing liberals over whether the goal of progressive public policy should be to provide universal benefits to all, or to target benefits to the poor.

Cuomo’s program takes a modified universalist approach. His program—dubbed the “Excelsior Scholarship”—makes college tuition at the State University of New York campuses free for every student in a household earning less than $125,000.

Though seemingly good on its face, progressives have fretted over the wrinkles to Cuomo’s plan. First, it only zeroes out tuition, which is relatively modest for in-state students at public colleges, and doesn’t assist with daunting room and board costs. For instance, at my alma mater SUNY Geneseo, tuition is $6,470, but room, board, fees, and supplies run in excess of $17,000. Cuomo’s “free college” plan leaves students on the hook for the bulk of these total costs, which could deter many from taking advantage of it.

Second, Cuomo’s plan contains a punitive catch that students who benefit from the Excelsior Scholarship must work in New York for up to four years after graduation or else must repay the entire scholarship. This risk might deter students who can’t predict where they will wind up in four years. But it was the kind of provincial hook that may have been politically necessary to get the state legislature on board with the idea at all.

The bigger issue is that the structure of Cuomo’s program will provide little help to New York’s poorest students, and much more help to middle-class students. The Excelsior Scholarship is structured as a “last dollar” program, meaning it kicks in only after other sources of financial aid, like federal Pell Grants, are exhausted. Pell Grants help low-income students pay for college up to nearly $6,000 per year. That means a low-income Pell Grant recipient gains little to nothing from Cuomo’s free college program.

At the same time, students from families earning six figures get a massive windfall. They’ll each derive thousands of dollars in annual benefits by getting to attend school for free.

In actuality, Cuomo’s plan is a gap-filling policy, extending subsidized public college to the middle-class. Indeed, he expressly pitched his program as “Free-College for the Middle Class.” The program essentially functions as middle-class insurance against earning too much to qualify for Pell Grant assistance. As Mark Huelsman of Demos explains, “the new program when combined with federal grant aid ensures that middle-class families receive the exact same subsidy as working-class families.”

The distributive weight of Cuomo’s program—skewing away from the poor and toward the middle-class—has left many progressives fretting. The New York Times editorial board diminished the program as a “Free* College Plan” for only “one slice of the middle class,” noting that “even though the cost of room and board and books is what’s keeping many poor students out of college, the Excelsior Scholarship covers none of that.” Slate’s Jordan Weissman argued that cutting the poor out of the program’s benefits “somewhat undermines one of the big rationales behind making college tuition-free in the first place.”

The angst over Cuomo’s program is a miniature rekindling of the debate that flared throughout the 2016 Democratic presidential primary. Sen. Bernie Sanders proposed to make college free for everyone. Hillary Clinton criticized this plan as wastefully “paying to send Donald Trump’s kids to college.” Clinton instead guaranteed only debt-free college, meaning that those who could afford it would still have to pay their own way. (Toward the end of the Democratic primary, Clinton ultimately proposed free college for families earning below $125,000—the direct predecessor of Cuomo’s plan.)

Proponents of free college argue that higher education is a higher good that should be demonetized so as to be available to all. We let rich and poor alike attend K-12 schools for free, it’s thought, so college shouldn’t be treated any differently. Any regressive impact can be countered by levying progressive taxes on the wealthy. As the Roosevelt Institute’s Mike Konczal noted, “We don’t charge upper-income families more to ride the subway or visit a public park in order to ensure that these are public institutions available to all who have the ability and desire to participate in them.”

Critics argue that free college proposals squander resources by needlessly subsidizing the rich. The rich gain the most from free college because they tend to go to expensive schools. Free college also wipes away the sort of private progressive redistribution that exists in college financing today, where the tuition paid by wealthy students goes to subsidize the tuition waived for poorer students. Because wealthy students are the ones paying full tuition today, they’d get the largest windfall if college suddenly became free. New America’s Kevin Carey called Sanders’s free college plan “wasteful, unfair, and ultimately undermines the long-term interests of low-income students.”

There’s no right answer here, because this is ultimately a debate about values. And those values will dictate the future of American progressivism. Do progressives want an agenda that will create more universally shared public goods? That would divorce more essential goods and services from ability to pay, providing free access to rich and poor alike.

Or do progressives want to redistribute resources to provide assistance to those who need it most? This would target public spending toward the poor, cutting out wealthier Americans through means tests and income cutoffs.

That’s the deeper philosophical debate rankling progressives over New York’s new “free” college program. Cuomo took a side, building on federal aid to low-income students to make SUNY schools public goods universally available to all middle-class students. He has made his state a laboratory for one way of expanding affordable access to higher education. Progressives nationwide will have to decide if that’s the policy angle that they want to replicate.

Commonwealth Fund

I’ve been collaborating with the non-profit healthcare think tank The Commonwealth Fund to put together a series of brief explainers on various conservative health reform proposals.  These aim to provide the basics on the function, backstory, and impact of various health policy ideas.

The first of these explainers are available now; I’ll update this post as forthcoming explainers go live:

Are Medicaid work requirements legal?

Dylan Matthews has a good piece at Vox on the Trump administration’s zeal to require most people to work in order to receive health insurance benefits through Medicaid. Matthews notes that “[a] Medicaid work requirement would be a huge departure from current practice . . . [that’s] also likely to be ineffective, difficult to enforce, and maybe even illegal.”

It’s the last of these that I’d like to focus on: the possibility that work requirements might be illegal under the statutes governing Medicaid. Because work requirements don’t further Medicaid’s objective of extending healthcare to the poor, aren’t truly experimental, and would harm Medicaid recipients, there’s a good chance that work requirements for Medicaid are not lawful.

Here’s the background: Medicaid was created in 1965 as a little-noticed sidecar to Medicare in order to provide medical assistance to low-income people and other vulnerable populations. The law sets out certain “mandatory eligibility groups” that must be covered by state Medicaid programs, including low-income pregnant women and mothers, the blind, the disabled, and other medically needy groups.

The states and federal government partner to run Medicaid together: the federal government finances a sliding percentage of the program, and the states administer it. When Congress passed Obamacare in 2010, Medicaid eligibility was expanded to include everyone earning less than 133 percent of the federal poverty line; however, the Supreme Court ruled that this additional eligibility category was optional for the states.

States can request waivers from some of Medicaid’s requirements in order to conduct experiments and explore innovations in their programs. Section 1115 of the Social Security Act allows the Department of Health and Human Services to grant states waivers from the law’s requirements to conduct “any experimental, pilot, or demonstration project which, in the judgment of the Secretary, is likely to assist in promoting the objectives of [Medicaid].”

In the recent past, conservative states have requested waivers to require that all able-bodied adult Medicaid beneficiaries are either working, actively seeking employment, or are in school. The Obama administration routinely struck down requests from states like Pennsylvania to attach work requirements to Medicaid benefits—a red line that the administration would not depart from while negotiating with red states over the Medicaid expansion. The Obama administration took the position that work requirements would be a fundamental departure from Medicaid’s tradition as a safety net program for all, regardless of employment status.

The Trump administration is eager to reverse this policy. Seema Verma is Trump’s head of the Center for Medicare and Medicaid Services. Before that, she was a healthcare consultant working closely states like Kentucky and Indiana (under then Governor Mike Pence) to redesign Medicaid programs, often including work requirements.

In March, Verma and Health and Human Services Secretary Tom Price wrote a letter to state governors welcoming requests to tie Medicaid to employment status. “The best way to improve the long-term health of low-income Americans is to empower them with skills and employment,” the letter asserted, saying that the department was willing to “approve meritorious innovations that build on the human dignity that comes with training, employment and independence.”

The department will soon have that chance. Kentucky, Pennsylvania, and Indiana have all made requests with the Trump administration to impose work requirements on Medicaid eligibility. Arizona and Arkansas are expected to submit their own requests soon.

As much as Price and Verma would like to approve these requests for ideological reasons, it’s not clear that they have the legal authority to do so. A fresh new report from the Congressional Research Service looks at the issue of the legality of Medicaid work requirements under Section 1115 waivers. CRS concludes that the lawfulness of Medicaid work requirements is an open question. But there’s ample reason to think that any forthcoming approval from the Trump administration could be on shaky ground.

The administration’s decision granting or denying a Medicaid waiver can be reviewed and challenged in court to determine whether the decision was arbitrary or capricious. For waivers under Section 1115, courts primarily look at: whether the request is actually experimental; whether it “promot[es] the objectives of [Medicaid];” and whether administration officials thoroughly considered the goals of the waiver request, its impact on beneficiaries, and objections raised to the waiver.

Under this standard, a waiver to attach work requirements to Medicaid hardly looks like a sure thing. There are at least four reasons why:

1. Work requirements do not promote the objectives of Medicaid. The objective of Medicaid is to extend medical assistance to the needy. There’s no intuitive evidence that requiring people to hold gainful employment furthers this goal.

Indeed, the Obama administration believed that work requirements were completely unrelated to Medicaid’s goals. In a letter denying Arizona’s request for a waiver to implement Medicaid work requirements, the Obama administration concluded that work requirements “undermine access to care and do not support the objectives of the program.” To legally justify changing this position, the Trump administration will have to marshal evidence for a reversal.

Verma and Price articulate the goal of work requirements as promoting the “human dignity that comes with training, employment and independence.” But that’s way beyond the scope of the purpose of Medicaid. In fact, it’s much more aligned to the objectives of welfare programs like Temporary Aid to Needy Families and its predecessor, Aid to Families with Dependent Children.

If states want to experiment with conditioning safety net benefits on employment, they should seek waivers from TANF, not Medicaid. (And in fact, they’ve already done so.) Had Congress wanted Medicaid to be susceptible to these kinds of waivers, it would have incorporated some notion of work and independence into Medicaid’s objectives. Congress did not do so.

In fact, Congress very recently tried—and failed—to shoehorn employment into Medicaid. During the Republicans’ aborted attempt to pass the American Health Care Act to repeal and replace Obamacare, they introduced an amendment to permit work requirements in Medicaid. As CRS reports, “On March 21, 2017, a manager’s amendment to the AHCA was released which would additionally allow states to impose work requirements on non-disabled, non-elderly, non-pregnant individuals.”

AHCA made it out of committee, but was shelved because it could not secure enough support to pass the House. But the fact that Congress saw the need to amend the Medicaid statute strongly implies that the statute as presently constructed does not permit work requirements. The Supreme Court has said that there is a “general presumption” of statutory construction that “when Congress alters the words of a statute, it must intend to change the statute’s meaning.” If Medicaid as written already permitted state work requirements, then the proposed AHCA amendment would not have been necessary.

Of course, neither AHCA nor its amendment became law. The objectives of Medicaid on the books remain unchanged. And those objectives are not furthered by work requirements.

2. Work requirements violate Medicaid’s “mandatory eligibility groups.” As explained above, Medicaid’s statute lays out certain groups that must be covered by the states. Granting a Medicaid waiver for a state to implement work requirements would across many of these mandated groups.

This is most evident in states that have expanded Medicaid under Obamacare. The Medicaid expansion acts as a catch-all to insure everyone earning less than 133 percent of the poverty line, scooping up those low-income individuals not covered by one of the other mandatory eligibility groups. Work requirements are inconsistent with this part of the statute because they would deny coverage to those who are otherwise eligible but unemployed. Granting a work requirement waiver therefore cannot be squared with the text of the law.

3. Work requirements are not innovative or experimental. For years, states have sought and received waivers to institute work requirements for receipt of cash welfare benefits. And these experiments have not been effective at cutting poverty.

And while the Obama administration did deny state requests for mandatory work requirements for Medicaid, it did approve Pennsylvania’s 2014 request to implement voluntary work incentives in its Medicaid program. Similar requests for Medicaid are thus not truly experimental, as is required under Section 1115, because states have already had ample opportunity to study the effects of attaching work requirements to safety net benefits.

4. Work requirements are self-defeating and harmful to Medicaid recipients. The population of Medicaid recipients affected by work requirements is small. Nationwide, nearly 60 percent of all Medicaid recipients are already working. Among those who do not work, more than a third are ill or disabled; another 28 percent are caring for family; 18 percent are students; and 8 percent are retired.

The remainder could not find work or are not seeking work for other reasons. They account for just 4.5 percent of all Medicaid recipients.

But for this population, work requirements could be dire. Able-bodied unemployed individuals would be thrown off of their health insurance, causing them new difficulty to obtain medical treatment. This would be extremely detrimental to their health and wellbeing.

Moreover, work requirements may actually backfire—they likely hinder employment more than they promote it. That’s because Medicaid doesn’t discourage work. When Ohio expanded Medicaid, three quarters of unemployed enrollees said that having Medicaid coverage made it easier for them to find jobs.

*          *          *

Waivers for Medicaid work requirements are no legal slam-dunk. And it’s important for advocates and commentators to put this case before Health and Human Services. One of the factors that courts will consider is whether the Department considered and responded to the evidence in the administrative record. That means that Price and Verma must reckon with the shortfalls of work requirement waivers before going giving the green light to states.

That’s a green light that conservatives have long been eager to give. But in their quest to scold the poor, Medicaid work requirements might be more than the law can bear.

Obamacare’s veto problem—and how to fix it

Emboldened progressives have spent much of the last two weeks cheering Obamacare’s triumph over the Trumpcare repeal train-wreck. But meanwhile, a pair of developments have quietly highlighted the limitations of Obamacare as a framework for truly providing healthcare to everyone .

Obamacare has cut the ranks of the uninsured to historic lows on the strength of its private insurance marketplaces and its Medicaid expansion. But too many actors disinterested or outright hostile to the law’s goals have the power to get in the way of universal healthcare. Quite simply, Obamacare’s design has left it subject to too many vetoes.

First came the news that the major insurer Anthem is considering exiting Obamacare’s marketplaces.  Anthem’s exit, the latest in a string of high-profile departures, could be a particularly painful blow. In fourteen states, Anthem sells Blue Cross Blue Shield plans—historically the insurer of last resort on the individual market. Anthem is currently the sole insurer in nearly 300 counties, serving around 250,000 people. If Anthem quits Obamacare, people in parts of four states would be at risk of having no insurer willing to sell on the individual market.

Next came Kansas’s failed attempt to expand Medicaid. Kansas is one of nineteen states that have refused to take federal funding to expand Medicaid to people earning just above the poverty line. Last week, both houses of its state legislature voted to finally expand Medicaid. Yet arch-conservative governor Sam Brownback barely batted an eye before vetoing the bill on the spurious grounds that “The cost of expanding Medicaid under ObamaCare is irresponsible and unsustainable.”

The Kansas House of Representatives tried to override Brownback’s veto this week, but came up three votes short. As Vox’s Sarah Kliff observed, “65 percent of Kansas legislators support Medicaid expansion. But it failed because they needed two-thirds support to override Brownback[’s] veto.”

This leaves at least 56,000 Kansans ensnared in a coverage gap: too rich to qualify for Kansas’s Medicaid program, but too poor to qualify for subsidies on Obamacare’s marketplaces. And in Kansas, “too rich” means parents earning more than $7,760 per year—38 percent of the federal poverty line. (Forget about Medicaid if you’re a childless adult in Kansas—you don’t qualify, period.)

These two events—Anthem’s cold feet, and Brownback’s cold heart—get at the core vulnerabilities of Obamacare’s coverage expansion. Businesses get a veto over Obamacare if they don’t think they can make enough money participating in it. If too many insurers think that selling in a part of the country doesn’t make sense for their bottom lines, that region is written out of national health reform not by its democratically-elected representatives, but by private corporations.

On the other hand, states get a veto over Obamacare if their governors or legislatures have ideological misgivings about the law. Of course, Obamacare’s drafters never intended this—it was the Supreme Court that made Medicaid expansion optional. The Court’s decision made it easy for state-level conservatives to flex their hostility to Obamacare and to second-guess the budgeting decisions of Congress. So a determined conservative governor or legislature can blow a massive whole in Obamacare by turning down free federal money to provide insurance to the poor.

Neither veto is tenable for a durable system of universal healthcare. As I have written, a universal healthcare scheme cannot only depend on the business calculations of private corporations. Yet as presently constructed, healthcare officials have no way to guarantee offerings on the insurance marketplaces. The Obama administration routinely cajoled recalcitrant companies to sell in parts of the country in danger of too little competition—a last-ditch effort that the Trump administration will be in little rush to emulate while it waits for the law to “explode.”

Universal healthcare can’t just bet on insurers voluntarily selling plans in every part of the country. The number of counties with one or fewer insurers is projected to swell over the coming years. Insurers are eager to sell in states with high population densities like New York and California, but aren’t sure they can make money selling in rural states like Alaska. This has left health reform proponents marking their calendars for June 21. That’s the day by which insurers must decide whether they will sell plans on Obamacare’s marketplaces next year—and therefore the day we’ll find out how much of the country will be graced with universal healthcare.

That’s simply not sustainable. Instead of counting on private companies to provide universal healthcare, we should revive the public option as at least a fallback in states with too few insurance offerings. This was a good idea that embraced by both Democrats and moderate Republicans during Obamacare’s drafting, but was ultimately jettisoned. By the end of his presidency, Barack Obama himself was pushing for this reform. Obamacare needs a backstop—we cannot just settle for an insurance desert where companies refuse to sell. A public option would do the trick.

Then there’s Medicaid. Kansas’s inability to expand its program even in the face of supermajority political support is a sign that it’s time to harmonize and simplify control of Medicaid. Medicaid has long been a joint operation between the states and the federal government. The federal government provides much of the funding, but we have fifty different Medicaid programs across the country.

Instead of leaving healthcare for the poor at the mercy of state politics, we ought to simply let the federal government take the reins of the entire Medicaid program. This would guarantee coverage for all who qualify, regardless of the state they happen to live in. The states would be freed of a massive fiscal burden, and 50 different bureaucracies would be eliminated, letting the federal government better streamline cost control experiments.

And after federalizing Medicaid, we ought to expand it again to cover more people. Medicaid has been a tremendous success under Obamacare, and we should build on it further.

Though nonstarters in the current political environment, these steps are vitally necessary to strengthen universal affordable coverage in the United States over the long term. Obamacare has too many places where those driven by profit or ideology can hack away at the goal of universal healthcare. Eliminating these veto points is the next step in reaching the dream of healthcare for all.

The simple appeal of single-payer

Sarah Kliff reports at Vox on the surprising popularity of single-payer healthcare even among Trump voters. When she asked a group of Trump supporters in Harrisburg, Pennsylvania, whether they wished we had a single-payer system like Canada’s, “[h]alf of the hands shot up.”

In one sense, this shouldn’t be all that surprising. Though often written off as a fringe fantasy, single-payer healthcare consistently polls well, drawing support even among Republicans. There is an element of the idea that has universal appeal.

But yet, the popularity among conservative voters is curious.  Kliff says fairness and consistency are two key draws of single-payer.   “The voters I’ve interviewed like the idea of everybody getting equal treatment, no matter where they live or how much they earn,” she reports.

That’s undoubtedly part of it. But I suspect something even more basic and practical accounts for single-payer’s enduring appeal. And that, simply, is its simplicity. People want out of the exhausting bureaucracy and byzantine complexity that is the American healthcare system. Our system is a confounding ad hoc kludge-on-kludge concoction of a public-private partnership layered on top of public programs grafted on to a tax-preferred fringe benefit.

When it comes to reform, relief from uninsurance and rising costs is just the beginning. People also want deeper relief from the sheer taxing ordeal of American healthcare: the churn between fragmented programs, the stress of navigating provider networks, the uphill futility of doing battle with insurance companies. When people look to government to reform healthcare, they aren’t just looking for help financing it—they want government to take on the stress and headache of navigating the entire system. Government should be a healthcare agent, not just a benefactor.

We often think about the size of government as a philosophical and horizontal continuum: how much space is government occupying? How much private industry is it regulating or displacing? But the individual experience may be much different. Individual Americans experience big government in a much more practical, vertical sense: how deeply are government systems imposing on my life for the worse? What costs—through taxation of either my income or my time and mental bandwidth—are government programs assessing me?

For most people, single-payer healthcare doesn’t inherently offend these anti-big government sentiments. Government absorbing the insurance system would ultimately streamline the healthcare financing experience for patients. The administration of healthcare financing would be synergized down to a single point: the federal government. That makes things a whole lot simpler for patients.

And because everyone would draw benefits from single-payer, they wouldn’t necessarily resent government spending on healthcare as a giveaway to someone else. For instance, Medicare enrollees, having paid in to the system over their lifetimes, want to “keep your government hands off my Medicare.” Because they have paid taxes in exchange for clear and visible benefits, Medicare beneficiaries don’t experience government-run health insurance as “big government.” Neither would enrollees covered by a broader single-payer system.

Strangely enough, it’s possible for individuals to experience a centrist program like Obamacare as “big government” in a way that they might not experience a typically left-wing program like single-payer. Obamacare provided much-needed relief on the basics of health insurance by guaranteeing access to it and subsidizing the cost. But it has done little to ease broader stresses endemic to our healthcare system. Indeed, Obamacare adds more complexity, with means-tested benefits for private insurance for some, and expanded public insurance for others. Either way, it’s a government program that requires consumers to make complex choices, figure out their own eligibility, and weigh different networks, premiums, and deductibles against each other.

The appeal of single-payer as the next order of health reform is that it would lift this burden off the individual. Single-payer would certainly be highly disruptive (perhaps existentially) for industry stakeholders. But for the day-to-day lives of actual people, it would be liberating.

Of course, our politics is skewed to avoid “big government” as business and industry experience it. My own suspicion is that, regardless of the theoretical benefits of single-payer (of which there are many), we are too far down the road of our own ramshackle system to tear it up and start over wholesale. Those with a stake in the current system would undoubtedly mobilize to defeat single-payer—especially once it comes time to dole out the massive tax increases needed to pay for it.

Where single-payer becomes possible, however, is in a crisis. And Republicans are courting just such a disaster by working to sabotage Obamacare. As David Leonhardt of the New York Times puts it, “if voters like government-provided health care and Republicans are going to undermine private markets, what should Democrats do? When they are next in charge, they should expand government health care.”

But even if single-payer comes to naught in the United States, the source of its appeal should guide the future of our public policy. Twenty-first century life imposes too many burdens and complexities on people. Maybe they just want government to lift some off of their backs.

Obamacare’s tenth life

This post is cross-posted at Medium.

Back in January, I recounted the Affordable Care Act’s many trials and tribulations in anticipation of what was poised to be its toughest battle yet. From Scott Brown cracking the Democrats’ filibuster-proof Senate majority in 2010, to John Roberts turning gun-shy before obliterating the individual mandate, through Ted Cruz’s government shutdown, Obamacare had more than its share of close calls.

Yet the law defied death again and again. “[F]or eight years, center-left health reform has prevailed against constant slings and arrows because its moral foundations are strong,” I wrote at the time. “Obamacare’s tendency to survive may just be what spares it again.”

And survive again it has. Trumpcare is dead, and Obamacare is alive. The GOP’s seven-plus year charge of repeal and replace went down in flames on Friday, having barely even made it out of the starting gate. And when it comes to the core of Obamacare, Republicans hardly even put up a fight.

That’s because the GOP long ago gave up on contesting the basic moral foundation of Obamacare: the notion that everyone is entitled to healthcare as a right. It was a quiet concession, drowned out by years of chest-thumping cries to repeal Obamacare, but the right implicitly acquiesced to Obamacare’s new normal years ago. That, more than anything, doomed the effort to repeal it.

Republicans tried to resist the moral force of universal healthcare by tarring it as “socialized medicine” and a government takeover of health insurance. But since Obamacare began delivering real benefits to real people, the center of gravity within Republican opposition shifted toward a more practical, less ideological critique about high premiums and inadequate coverage. Underneath the howls for repeal, the conservative objection increasingly moved from universal healthcare itself to the outcomes and mechanisms Obamacare employed to approximate it.

Donald Trump formalized this concession. Just days after his election, he announced that he intended to keep Obamacare’s popular guarantee of coverage for people with pre-existing conditions. Even earlier, Paul Ryan’s “Better Way” proposal agreed to preserve this protection, too. But to insure the sick, you must also insure the healthy — insurance markets cannot function any other way. And when it comes to universal healthcare, insuring both the sick and healthy is more or less the whole ballgame.

To keep protections for the sick in place, the Republicans would have to produce a plan that looked a lot like Obamacare. Under this constraint, the only way to differentiate it — and thus the only way to realistically claim to “repeal” Obamacare — would be to design a version of the law that was meaner, stinger, and outright worse.

That’s ultimately just what the GOP did, but only after abandoning their first strategy: so-called “repeal and delay.” This plan — to give Republicans the political catharsis of an immediate Obamacare repeal vote, but delaying the effective date of repeal for several years — implicitly conceded two important points: First, that it was unjust and untenable to simply repeal and toss people off of their healthcare. And second, that Republicans had no idea how to actually replace the law.

After it became clear that repeal and delay too would cause chaos on insurance markets, that half-baked plan was scrapped once enough leading Republicans (Trump included) clamored for simultaneous repeal and replace. And that course correction produced the monstrosity that was the American Health Care Act.

The bill was a horribly constructed, unloved mess from the day Ryan announced it from behind his smirk. But it was really its Congressional Budget Office score that did it in, for the CBO confirmed what everyone suspected: that AHCA grossly offended the prevailing moral principle of universal healthcare. In pursuit of that principle, Obamacare had normalized a baseline of widespread and affordable coverage. AHCA did immense violence to each of these, threatening to throw 24 million people off their insurance and jack up rates on millions more of the oldest and more vulnerable Americans.

With that, it was only a matter of time before AHCA collapsed in a heap. There were other factors, of course: The Republican Party was in a defensive crouch from the get go, and couldn’t coalesce around a replacement plan. A public enraged by the elevation of Donald Trump to the presidency and terrified of the threat to life and limb posed by repeal galvanized to mount a fierce resistance. But the common thread through all of them was the potent moral force of universal healthcare.

Granted, Obamacare hasn’t yet achieved the goal of universal coverage. But it made a major down payment toward that goal, lowering uninsured rates to historic lows. With the failure of AHCA, the country is refusing to turn back from those gains.

So for the second consecutive Republican presidency, grand conservative designs to gut a pillar of the welfare state have crumbled. When George W. Bush decided to spend his second-term political capital privatizing Social Security, his plan made it through the summer before being pronounced dead. What is remarkable about Obamacare repeal is that it fell apart so fast.

But like Social Security reform, AHCA crumbled under the weight of poor policy design, Republican factionalism, and public resistance. Call it loss aversion, status quo bias, third-rail entitlements — the welfare state has demonstrated an impressive staying power.

And it all comes back to the foundational moral basis for government forging ahead to better people’s lives and provide a sense of security. That’s the brick wall that Ryan’s now-aborted “rescue mission” ran into headlong. Universal healthcare is right and just, and that’s why Obamacare has survived yet again — and perhaps for good.

Social democracy as the answer to Trump

I’ve been reading Tony Judt’s Ill Fares The Land, his 2010 plea for social democracy in the last days of his life.  It turns out that Judt presciently anticipated the appeal of Trumpian authoritarianism in our insecure age — and offered social democracy as our best hope to withstand it.

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Tony Judt (New York Times)

Judt was a steadfast if begrudging admirer of social democracy–a political ideology that “does not represent an ideal future; it does not even represent the ideal past.  But among the options available to us today, it is better than anything else to hand.”

Social democracy is the true center of modern political thought.  Where socialism outright rejects capitalism, social democracy accepts it.  Social democracy aims to harness the engines of capitalism while tempering its rough edges, crafting the institutions and guardrails necessary to balance capitalism’s chaotic dynamism with a measure of ordered security.

That sense of security is dangerously amiss today, roiling much of the West with anxiety.  “We have entered an age of fear,” Judt wrote.  “Insecurity is once again an active ingredient of political life in Western democracies.”  This is the insecurity of terrorism, of technological change, of globalization, of economic inequality, of the prospect of job loss.  “And, perhaps above all,” Judt wrote, “fear that it is not just we who can no longer shape our lives but that those in authority have also lost control, to forces beyond their reach.”

This combination — an electorate both gripped by fear and inflicted with skepticism of their leaders’ ability to do anything about it — produces anti-democratic movements that offer stability by turning aggressively inward.  “If we can have democracy, we will,” Judt observed.  “But above all, we want to be safe.  As global threats mount, so the attractions of order will only grow. [. . .]  Outsiders, however defined, will be seen as threats, foes and challenges.  As in the past the promise of stability risks merging with the comforts of protection.”  That’s the lure of Trumpism that Judt saw coming.

The fearful society craves stability.  This stability can be provided one of two ways: First, it can be anti-democratic stability.  This is the order promised by a strong man — one who exploits this insecurity by vilifying the weak and the “other.”  One who looks at blighted communities cast to the margins of the American story and declares “I alone can fix it.”  One who assures those forgotten communities that he will “give you everything. I will give you what you’ve been looking for for 50 years.”

“Unless the Left has something better to offer,” Judt warned, “we should not be surprised to find voters responding to those holding out such promises.”

Fortunately, the Left does have something to offer — Trumpism isn’t the only answer to insecurity.  Stability can also be provided through democracy by crafting institutions to truly protect people from the risks of modern life.  “Social democracy in Europe, the New Deal and the Great Society here in the US, were explicit responses” to challenges and threats wrought by previous eras of insecurity, Judt wrote.  Where Trumpism offers recriminations in response to insecurity, the Left must offer reassurance.

What does that reassurance look like?  By and large, it means insuring individuals against commonly-shared risks in the twenty-first century.  Political scientist Lane Kenworthy laid out a full agenda for a Social Democratic America, including wage insurance to protect workers from cuts in pay, sick leave to insure workers in case of illness, a child benefit to insure parents against the costs of child rearing, and other social insurance programs.  It might also include an aggressive program of targeted government investment to stimulate stagnant communities, coupled with a federal works program, to function as a form of insurance against creative destruction discarding whole regions of the country.

Of course, a program of that scale and ambition will directly confront a public with ever-diminishing expectations in the capacity of its civic institutions and their leaders.  As Chris Hayes wrote in The Twilight of the Elites, we face a crisis of authority in the United States after a generation of catastrophic elite failure at every turn across virtually every pillar of society. This makes for a receptive audience for the authoritarians promising anti-democratic stability that bludgeons these very institutions, and a much more doubtful audience for those looking to achieve democratic stability through better and more comprehensive institutions.

Which means the Left’s message and messenger matter.  A compromised center-left version of social democracy in the hands of a leader closely tied to decades of institutional failure won’t be compelling.  While Hillary Clinton pushed an agenda packed with progressive technocratic reforms and programs, her institutional ties were too unshakable and her ambition to restructure the American economy too trimmed to compete with the vociferous anti-democratic stability offered by Trump.

The Left will need an outsider insurgent that can credibly lay claim to moving the country in the direction of social democracy.  Barack Obama pushed a centrist progressive agenda, but did so as an outsider reformer offering hope and relief from the failures and disappointments of the previous generation.  Bernie Sanders positioned himself as an outsider to the political class vowing social democratic revolution of the country’s institutions, but lacked the inspirational and heroic appeal of Obama that cut across all core Democratic constituencies.  Some combination of the two is what’s called for.

Moreover, a social democratic response to Trump isn’t necessarily about specific policies.  Rather, it requires making an unabashed positive case for the role of government to better citizens’ lives; for the capacity of a democracy to craft institutions to guard against threats new and old; for the ability of elected leaders to chart a course that enlivens struggling communities and ensures that prosperity is broadly shared.

Even if Trump’s presidency crumbles under the weight of chaos, incompetence, and scandal, the resonance of his dark message won’t necessarily follow suit in four years.  As the closest approximation of the Left in mainstream American politics, Democrats will only defeat Trump by offering voters their own vision of how to achieve security in the twenty-first century.  In an age of fear, the hostile illusion of security of the Right can only be matched by a hopeful communal security of the Left.

The Constitution is a sanctuary from Trump’s executive order

Last week, I published a column at Syracuse.com (my hometown news org) arguing that Donald Trump’s attempt to de-fund sanctuary cities is unconstitutional.  In short, progressive federalism for the win:

The Trump administration would like to shift the burden and cost of carrying out its political agenda of rounding up immigrants on to local cities, their police forces and their taxpayers. Unfortunately for the White House, the Constitution was devised to limit Washington’s powers, protecting states and cities from exactly this kind of federal encroachment.

Read the rest here.

A supreme theft

This week, Donald Trump announced his nominee to fill the Supreme Court vacancy that arose after Justice Antonin Scalia’s death during President Obama’s second term in office.  The nomination is the result of stolen goods that Senate Republicans housed for ten months and then giftwrapped for Trump upon taking office.  The coming Supreme Court fight is thus a bridge between the radical insurgent GOP of the Obama years to the vengeful and autocratic Trump regime taking shape—a fight that, for good or ill, will bind Trump and the GOP more than ever.

On March 16, 2016, President Obama nominated Merrick Garland to fill the Supreme Court seat vacated after Justice Scalia’s death.  Garland was the widely respected, long serving Chief Judge of the U.S. Court of Appeals for the D.C. Circuit, the second highest court in the land.  An ideological moderate, Garland had previously gained acclaim from influential senators on both sides of the aisle.

The Republican-controlled Senate refused to even hold a hearing or give Judge Garland an opportunity to make his case.  Instead, the Senate kept the vacancy open, denying Obama his constitutional prerogative to appoint a justice, and held onto the seat on the off-chance a Republican won the presidency in 2016.  This was an unprecedented abdication of the Senate’s constitutional duty to advise and consent upon the president’s nominee.

So the vacancy that Trump is now filling is the result of plunder committed by the GOP against the country’s first black president.  And that plunder was the culmination of a relentless effort to brand that president as illegitimate.  As Obama took office in 2009, Senate Republicans cast into minority opposition seized on their base’s fear and revulsion to Obama’s politics and identity and molded it into a legislative strategy.  Senate Republican leader Mitch McConnell vowed total resistance to the president’s supposed radical socialist agenda.  McConnell sought to deny Obama any stamp of bipartisanship, sullying the president’s popularity and lifting the Republicans’ chances to reclaim majority status in Congress.

Congressional Republicans did the work of tarring Obama as an ideological outsider.  Meanwhile, Trump was busy stoking fears of Obama as an ethnic outsider with a fraudulent birth certificate.  This all served to cement fear and paranoia in the minds of GOP voters that the White House was in illegitimate hands—even though that president was twice elected with a popular vote majority free of any foreign or law enforcement interference.  The Republican Senate’s theft of Obama’s last Supreme Court nominee was the final malfeasant act of eight years of delegitimization.

That is the legacy of Trump’s Supreme Court inheritance: one of theft and deceit.  The process for filling a seat on the country’s highest court is no longer governed by law or custom—and certainly not by the Constitution—but instead by raw power.  The operative principle now is that if Republicans have the power to deny a Democratic president a Supreme Court pick, they will do so.  It’s about power and nothing more.  Any other claimed principles—about letting the people have a say in the presidential election, etc.—are backward-manufactured rationales to justify a power grab.

Senate Democrats must now decide how to react.  Rightfully furious about their Republican colleagues’ egregious mistreatment of Garland, many are predisposed and ready to side with the demands of the party’s base to resist Trump at every turn.  Other Democrats worry about being blinded by rage and tripping into a fight that the party simply cannot win.

It’s true, Democrats will ultimately lose this nomination fight.  The left must understand the brutal math.  But that’s beside the point.  If Democrats think Senate Republicans will hesitate to nuke the filibuster on the next Supreme Court nomination if Democrats let this one go, they are deluding themselves.

This Court battle is not about the merits of the nominee.  And Democrats cannot to take the high road in a doomed attempt to save Supreme Court nominations from becoming a partisan race to the bottom.  Republicans are already running that race, and made clear with their treatment of Garland that the Supreme Court is no different from any other political contest.  Democrats have no choice but to engage in this fight or else make Supreme Court vacancies a one-way rightward ratchet where Democrats play by an old set of rules and norms that Republicans systematically obliterate.

If Democrats need a principle to justify fighting Trump’s nomination, here’s one: appointments should be required to get support from each party.  It’s hardly an unreasonable position—after all, Elena Kagan and Sonia Sotomayor both attracted bipartisan support.  And it wasn’t that long ago that Justice Ruth Bader Ginsburg was confirmed by the Senate 96-3.  This would call for a widely-approved consensus nominee—someone in the mold of, say… Merrick Garland, of whom Republican Senator Orrin Hatch once said would be a “consensus nominee” who had “no question” of being confirmed.

But here we are.  One way or another, Donald Trump, a popular-vote loser of dubious electoral legitimacy and of whom a growing majority of Americans disapprove, will fill the Supreme Court seat heisted by Senate Republicans from Barack Obama.  This joint operation binds Trump and the GOP closer than ever, as Republican senators gush over the credentials and qualifications of his pick, seemingly oblivious to the impeccable credentials and qualifications of the man they spurned, Merrick Garland.

This linkage is about more than just a single Supreme Court confirmation, however.  There is a direct line from a conservatism that once sought small government to one that increasingly vilified government—that sowed distrust in institutions and then actively worked to weaken those institutions, creating the vacuum of authority that is ripe for Trumpism.  For an ideology that once prided itself on restraint, respect for tradition, and deference to preexisting institutions, conservatism has clearly lost it way.  When followed to its extreme, the endpoint of conservatism is Trump.  It is eminently possible that in the long run, the strain of revolutionary conservatism that has prevailed on the right since 1980 is outright incompatible with liberal democracy.

Stalemate-and-delay: the future of the Obamacare fight?

The fight over Obamacare is poised to dominate much of President Trump’s first year in office.  Republicans are dead set on following through on years of political attacks against the law.  Democrats are equally adamant about saving President Obama’s signature achievement and the millions insured under it.

The problem is that congressional Republicans look increasingly unprepared to follow through on their rhetoric about replacing the law.  Yet they and the Trump administration is convinced the law is failing.  This leaves the GOP in a real bind.

But there may be a way out.  When it comes to Obamacare, the best outcome for everyone may be a stalemate.

As a basic matter of math, Republicans need Democratic support to replace Obamacare.  They could repeal the law with a bare majority in the Senate, but will need eight Democrats to go against the party and overcome a filibuster to enact a replacement.  Republican leadership, including Trump and House speaker Paul Ryan, has backtracked from the repeal-and-delay misfire, and has since come to promise that repeal and replacement will occur near simultaneously.  That requires Democratic votes.

The core question for Trump and the GOP is how to get them.  Trump believes that he is negotiating from a position of ever-increasing strength.  He thinks the law will crumble on its own, even telling congressional Republicans gathered in Philadelphia that he had thought about “doing nothing [on healthcare] for two years, and the Dems would come begging to do something” after “catastrophic” price increases.  Ryan has the same forecast for the law, repeatedly (and falsely) asserting that Obamacare’s individual marketplaces are in a “death spiral.”

Trump has hinted at this scenario before.  Earlier in January, Trump tweeted that the GOP needed to “be careful” about repealing Obamacare, because Democrats would be to blame when the law “fall[s] under its own weight.”  There is clearly a side of Trump that sees political advantage to continuing to hang Obamacare around the necks of Democrats—a side of him that splits from Republican leadership in Congress on the immediate urgency to erase the law from the books.  By sitting back and waiting, Trump suspects he could get a better deal.

Democrats, on the other hand, are confident that Obamacare is succeeding.  They point to the 20 million people insured under the law and signs that its marketplaces have stabilized.  Democrats are determined to resist GOP repeal efforts, and are increasingly drifting toward a strategy of all-out opposition to Trump across the board.

From the Democrats’ perspective, there’s no reason to disabuse Trump of his notion that Obamacare is a ticking time bomb with their names attached to it.  Suppose Democrats stick together as a uniform bloc in opposition to repeal and replace.  A frustrated Trump might see the Democrats as “ungrateful” for the GOP’s efforts to save them from their supposed healthcare mess.  Trump might then decide to wait until carnage from Obamacare’s “collapse” starts to hit in order to exact a better deal out of desperate Democrats at that time.

For Democrats, this result keeps Obamacare on the books, delaying the repeal fight until a day when Trump may be on even weaker ground in public approval, and a day that is that much closer to the 2018 midterm elections.  At that point, Democrats could spark a wave election to take back the House or Senate, stopping Trump’s agenda altogether.

But stalemate-and-delay makes sense for Republicans, too.  If Trump gets fed up with congressional gridlock over healthcare and with how much of his first year in office the issue has consumed, he may want to shelve repeal—especially if he expects to pin down the Democrats into agreeing to more favorable terms down the road.  But would the repeal-obsessed GOP Congress go along with this?  Almost certainly.  Trump owns the GOP now, and the party will largely do as he says.  If Trump says build a border wall, Ryan asks how high (while writing a $15 billion check, to boot).  There’s no reason to think the party would subvert him if he tired of the Obamacare battle.

Trump and other leaders take the position that even though they could wait and let the law implode on its own, they have a duty to come to the rescue of those suffering under the tyranny of Obamacare.  By postponing the repeal push, Republicans get to blast obstructionist Democrats for perpetuating the hellish suffering inflicted on the American people under Obamacare.

This relocates the Obamacare debate back into the Republicans’ comfort zone.  Republicans are most at ease using healthcare as a political piñata against Democrats.  But now that they have the power to decimate Obamacare, they have no plausible plan to put the piñata back together again.  At the GOP’s Philadelphia retreat this week, one member of Congress said that the party’s leaders have offered “zero specifics” on an Obamacare replacement so far.  A leaked recording of that retreat shows Republican members of Congress ill at ease with the party leadership’s lack of strategy and clarity on healthcare.

So for Republicans in Congress, postponing repeal buys more time to devise a replacement plan, while allowing them to continue to use Obamacare as a political battering ram to rally their base going into the 2018 midterms.  Even though they’ve spent seven years railing against the law, Obamacare repeal is a fight that the GOP is not ready for.  Republicans are animated by political opposition to Obamacare as an avatar for big government liberalism.  But they still aren’t equipped or prepared to translate that political opposition into policy language.  Stalemate-and-delay allows them to reap the benefits of the former while avoiding the embarrassment of the latter.

Conversely, it also avoids Republicans taking ownership over the country’s healthcare system going into those elections—something many in the party are loath to do.  “We’d better be sure that we’re prepared to live with the market we’ve created” with repeal, said Rep. Tom McClintock of California.  “That’s going to be called Trumpcare. Republicans will own that lock, stock and barrel, and we’ll be judged in the election less than two years away.”

There are risks in this gambit for Democrats, but those risks are tolerable.  The key is for Democrats to stick together in total opposition to GOP repeal efforts.  And they will be sticking together to defend a wounded healthcare law—one that the Trump administration will weaken to the fullest extent of its executive authority.  Trump already issued an executive order instructing his administration to relax enforcement of the law “to the maximum extent permitted by law.”  White House adviser Kellyanne Conway even suggested the administration may refuse to enforce the law’s controversial individual mandate.  And Trump also canceled planned advertising for the law’s individual marketplace plans in the final days of open enrollment in an apparent attempt to reduce sign-ups.  These are all attempts to loosen the screws on Obamacare’s three-legged stool.

But these risks were always going to be the case under a Republican administration.  Republican sabotage was inevitable, but it beats wiping the law off the books entirely.

So perhaps Obamacare’s future looks much like its past: a political lightning rod perpetually on the chopping block, but never actually chopped.  Trump can rationalize stalemate-and-delay as standing pat until a later day when he can bend Democrats to his will.  Republicans can keep rallying their base on the promise of repeal were it not for those obstructionist, big government Democrats.  And Democrats can appeal to their base having successfully fought Trump and continuing to stand up to Republicans intent on gutting Obama’s signature achievement.

And that might be Obamacare’s political sweet spot.  Democrats want to save Obamacare, and Republicans need an off-ramp from repeal.  For both parties to win, the solution might just be to stalemate.