Trump is trying to repeal Obamacare in court

Last week, the Department of Justice filed a legal brief announcing that it will not defend the Affordable Care Act in court.  That legal maneuver amounts to a transparent attempt by the Trump administration to try to repeal Obamacare yet again.

Conservatives have spent nearly a decade sniping at Obamacare through targeted litigation.  The ink was barely dry on Barack Obama’s signature on the law before fourteen Republican attorneys general sued to invalidate it.  Eventually, a lawsuit brought by a Koch brothers-funded business lobby made its way to the Supreme Court, claiming that the law’s requirement that everyone purchase insurance was unconstitutional.

In that case, Chief Justice John Roberts cast the deciding vote to save Obamacare’s individual mandate.  He thought the mandate went beyond the limits of Congress’s authority to regulate interstate commerce, but was valid as a tax.

Fast forward to 2017.  Congressional Republicans spent the better part of a year trying and failing to repeal Obamacare.  When they gave up and passed a standalone tax cut on the rich instead, Republicans slipped in a repeal of the individual mandate in order to nick Obamacare.

But they didn’t technically strike the individual mandate from the books.  Instead, Republicans simply zeroed out the mandate’s tax penalty.  So as of January 1, 2019, the individual mandate is “enforced” with a $0 penalty for skipping out on health insurance.

A new Obamacare lawsuit brought by Texas and other red states takes yet another swing at the law. And now the Trump administration’s Department of Justice has weighed in to argue that the individual mandate has become unconstitutional.  The argument is that because the individual mandate no longer generates any revenue in the wake of the tax bill, it can no longer be considered a tax.  And if it’s not a tax, then it has no constitutional authority.

But the administration doesn’t stop there.  Even worse, it argues that if the individual mandate falls, then Obamacare’s rules prohibiting discrimination against people with preexisting conditions must fall, too.  These protections that guarantee insurance access and fair prices should be struck down with the ghost of the individual mandate, according to the administration.

As a legal matter, this argument is utterly frivolous.  It’s a perversion of a legal doctrine known as “severability.”  When a court strikes down one provision of a law, it generally tries to leave alone other “severable” parts of a law in order to preserve as much of Congress’s work as possible.

Turning that doctrine on its head, the administration argues that Obamacare’s protections for people with preexisting conditions are not severable from the individual mandate, pointing to congressional findings in the Affordable Care Act that the provisions were closely connected.  But the health care program known as “Obamacare” is no longer derived just from the Affordable Care Act.  Rather, it comes from the Affordable Care Act as amended by the Donor Relief Act of 2017.  Congress itself—however unwisely—opted to defang the individual mandate and leave the rest of Obamacare alone.  The courts have no severability judgment to make, because Congress already made it.

And there’s a reason Congress didn’t touch the rest of Obamacare: it didn’t have the votes.  Senate Republicans pursued Obamacare repeal solely through budget reconciliation because they didn’t have enough votes to defeat a Democratic filibuster.  Reconciliation is limited solely to legislation that has an impact on the budget.  That constraint precluded Republicans from even considering repealing Obamacare’s provisions guaranteeing people with illnesses the right to purchase insurance.

So the administration is trying to do through the courts would it could not get through Congress.  It’s a backdoor attempt to saw off more of Obamacare than Congress could ever bear.

Of course, the Department of Justice’s refusal to defend Obamacare is also a stunning betrayal of the rule of law.  “[T]he Justice Department has a durable, longstanding, bipartisan commitment to defending the law when non-frivolous arguments can be made in its defense,” law professor Nicholas Bagley writes.  “This brief puts that commitment to the torch.”

Bagley also notes that just hours before the Department of Justice submitted its brief, three career attorneys at the Department withdrew from the case.  That’s typically a sign of dissension among the legal professionals within the Department not wanting their names attached to a frivolous brief. That left only Trump political appointees signing the brief—including Acting Assistant Attorney General Chad Readler, who Trump just picked to serve as a federal appellate judge.

Trump and his congressional Republican abettors have been hell-bent on soiling Barack Obama’s program expanding health care to twenty million people.  Through acts of sabotage both big and small, they’ve tried their damnedest to make the law function more poorly, even going so far as to deliberately cultivate massive premium hikes on people’s health insurance plans this year.

The galling brief filed by the administration’s hand-picked lawyers is a reminder that the conservative bloodlust to take away people’s health care has in no way dissipated after last year’s legislative failure of Obamacare repeal.  American health care simply will not be safe until Republicans are stripped from power in Washington.

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Philip Roth’s terror of the unforeseen

A celebrity novice politician takes the Washington establishment by storm, riding the dark strain of the American heart to an upset bid for the White House.

Philip Roth died this week. In 2004, he wrote a “what-if” alternative history imagining American aviation hero turned Nazi sympathizer Charles Lindbergh runs for president in 1940 and unseats Franklin Roosevelt on an isolationist “American First” platform. Roth published The Plot Against America as a curious peak into an unfathomable parallel universe. But in the age of Donald Trump, Roth’s imagined political catastrophe has suddenly become eerily prescient.

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Charles Lindbergh, September 11, 1941 (Des Moines, Iowa)

Roth tells the tale of Lindbergh’s political rise from his own childhood perspective. (Be warned: This post is shot through with spoilers ahead.) Lindbergh captured the animal spirits of the Republican Party, winning its nomination for the presidency. Lindbergh is an open anti-Semite—an imminent threat to American Jews like Roth and his family.

Roth’s father, Herman, is a staunch believer in goodness and justice in America, refusing to believe that Lindbergh could come close to the White House. He counts on the guardrails of American democracy to protect Jews. “There was Roosevelt, there was the U.S. Constitution, there was the Bill of Rights, and there were the papers, America’s free press.” Ultimately, all of these guardrails would give way to Lindbergh’s ascent.

Lindbergh’s campaign was at first dismissed by the establishment as a “publicity gimmick,” as he flew himself in a solo plane from rally to rally across the country. Lindbergh was at once both a plainspoken common man with a flat, “decidedly un-Rooseveltian” affect, and a superhuman living legend. He played on nostalgia, reminding Americans of his heroic flight across the Atlantic, “and it was 1927 all over again.”

His message was simple: FDR and other elites were duping the American people into war. Lindbergh would keep America out of World War II. “Vote for Lindbergh or vote for war.”

Roosevelt, for his part, campaigned on a sense of inevitability—as too busy with the serious business of governing to be bothered by Lindbergh’s “carnival antics.” When told that Lindbergh had won the GOP nomination, Roosevelt remarked, “By the time this is over, the young man will be sorry not only that he entered politics but that he ever learned to fly.”

In the run-up to the election, polls showed Roosevelt running comfortably ahead. The polls were wrong. Republican party leaders left Lindbergh’s campaign for dead, frustrated by the novice candidate’s insulated campaign.

Lindbergh shocked the world by winning in a landslide. Republicans seized control of Congress, too. Pundits latched on to a series of comforting rationalizations to explain Lindbergh’s blowout win: The country had rejected FDR’s bid for a third term. Lindbergh’s aeronautic feats were what the country needed to venture into the future. Anything to explain away the appeal of Lindbergh’s openly fascist campaign.

Before even being inaugurated, president-elect Lindbergh met with Axis leaders to negotiate peace with the United States. The American public overwhelmingly supported Lindbergh’s efforts to keep U.S. troops out of the war. They praised Lindbergh’s deal-making skills, and the apparent respect he commanded from Hitler.

Within weeks of the election, brash public anti-Semitism begins seeping out of the American woodwork. Bigots emboldened by political fortune saw fit to flex their newfound muscle in American life.

Upon taking office, Lindbergh launches a new Office of American Absorption to “Americanize” Jewish city kids by enlisting them to work on farms in the Midwest as a sort of summer camp. Yet while America’s Jews lived in horror of the new administration, much of the rest of the country celebrated peace and prosperity. The stock market boomed, and world war remained someone else’s problem. Eventually, a numbness and sense of normalcy set in across most of the country.

But Lindbergh’s insidious rise changed the fabric of the country. He invited the Nazi Germany foreign minister to visit the United States, leading former president Franklin Roosevelt to emerge from the sidelines and speak out. Lindbergh’s Nazi-friendly stance created the social space for American Nazism to go mainstream. The true terror of the Lindbergh presidency was what it brought out in regular Americans. America became a meaner, more violent place.

Eventually, Lindbergh’s administration is engulfed in a shocking scandal of foreign influence. Chaos swirls, a political resistance emerges, conspiracy theories gain currency on both sides, accusations of fake news about “so-called Jewish riots” fly.

Roth’s counterfactual history has a tidy conclusion that folds the country back into its previously interrupted political order. By the close of The Plot Against America, the dark age of Lindbergh turns out to have only been a two-year interregnum in American history before the country returned to its senses.

Will our own political moment pass so cleanly? Many Americans that are rightly distraught over Trump hope for a deus ex machina from Robert Mueller or the 2020 election. Yet the political tectonics and simmering resentments that unleashed Trump will not soon fade; the most we can hope for is dormancy.

Plus, the retrospective of history has its own way of deluding us into faith that a comfortably reassuring logic and order prevails. “Turned the wrong way round,” Roth wrote, “the relentless unforeseen was what we schoolchildren studied as ‘History,’ harmless history, where everything unexpected in its own time is chronicled on the page as inevitable. The terror of the unforeseen is what the science of history hides, turning a disaster into an epic.”

Jimmy Carter & the America we long for

In the aftermath of Watergate, Vietnam, the impeachment of Richard Nixon, routine economic shocks, and the upheavals and violence of the late 1960s onward, the United States desperately needed a reset in 1976. The man Americans turned to that year was Jimmy Carter.

Regardless of Carter’s ultimate performance in office, his presidential campaign is a useful touchstone for what resonated with Americans as a viable path forward after years of chaos and government by vengeance.

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In The Invisible Bridge, Rick Perlstein keys in on one speech Carter delivered in Watts, California, in June 1976 at the dedication of a new wing of Martin Luther King Hospital.

Carter began by discussing King’s legacy, and what King meant to him as a southerner. He then appealed to the unachieved promise of America, before launching into a clear and direct vision he sees for America:

The America we long for is still out there, somewhere ahead of us, waiting for us to find her. 

For all our progress, we still live in a land held back by oppression and injustice.

The few who are rich and powerful still make the decisions, and the many who are poor and weak must suffer the consequences. If those in power make mistakes, it is not they or their families who lose their jobs or go on welfare or lack medical care or go to jail.

We still have poverty in the midst of plenty.

We still have far to go. We must give our government back to our people. The road will not be easy.

But we still have the dream, Martin Luther King’s dream and your dream and my dream. The America we long for is still out there, somewhere ahead of us, waiting for us to find her.

I see an America poised not only at the brink of a new century, but at the dawn of a new era of honest, compassionate, responsive government.

I see an American government that has turned away from scandals and corruption and official cynicism and finally become as decent as our people.

I see an America with a tax system that does not steal from the poor and give to the rich. 

I see an America with a job for every man and woman who can work, and a decent standard of living for those who cannot.

I see an America in which my child and your child and every child receives an education second to none in the world.

I see an American government that does not spy on its citizens or harass its citizens, but respects your dignity and your privacy and your right to be let alone. 

I see an American foreign policy that is firm and consistent and generous, and that once again is a beacon for the hopes of the world.

I see an American President who does not govern by vetoes and negativism, but with vigor and vision and affirmative leadership, a President who is not isolated from our people, but feels their pain and shares their dreams and takes his strength from them.

I see an America in which Martin Luther King’s dream is our national dream.

I see an America on the move again, united, its wounds healed, its head high, a diverse and vital nation, moving into its third century with confidence and competence and compassion, an America that lives up to the majesty of its Constitution and the simple decency of its people.

This is the America that I see, and that I am committed to as I run for President. 

Carter argued that America deserves a government that lives up to the best of the country’s promise and character. He envisioned a new administration that roots out corruption and unwinds a system rigged for the rich. He vowed to pursue the dreams of employment for all and high-quality education for every child. He promised to be a positive force for American society and government—one in touch with the pain, dreams, and strength of the American people.

It’s a utopian vision, as all progressive visions must be. Progressives wish to improve society to achieve the promise of America. Implicit in that wish is faith that those ideals and values can be achieved by flawed, mortal human beings. The inherent hope and optimism in that faith must be reflected in the vision and speeches of progressive leaders.

Former Obama White House aide David Axelrod has a theory that presidential incumbents are consistently replaced by their polar opposites. “Voters rarely seek the replica of what they have,” Axelrod wrote. “They almost always seek the remedy, the candidate who has the personal qualities the public finds lacking in the departing executive.” The “grandfatherly” Dwight Eisenhower was replaced by the young, vibrant John F. Kennedy. The cool-headed, cerebral Barack Obama replaced the trust-your-gut, down-home George W. Bush. Obama in turn was replaced by the antagonistic, emotion-driven Donald Trump.

In the dark, chaotic days of the Trump administration, voters may again seek an opposite come 2020. After a presidency defined by cynicism, bellicosity, trenching division, and resentment, Americans may look for the opposite: a politics of hope, love, and optimism. A spin on the forward-looking politics offered by past progressives like Carter and Obama.

Carter’s speech was titled “The Power of Love.” And in 1976, Perlstein writes, “people yearned to believe.” They may yearn again come 2020. Donald Trump has offered a fundamentally negative vision—of American carnage and a crippled America.

Progressives must be prepared to counter this vision by explaining the hope they see for America. They must paint a vision for American voters — one that doesn’t react to Trumpism, but that transcends it entirely. The power of anger can only be vanquished by the power of love.

The return of the Republican “access” dodge

Last December, as the GOP brainstormed how to package their Obamacare replacement, House Republican aides came up with a cute euphemism for taking healthcare from millions of people: providing “universal access” in lieu of universal coverage.  “We would like to get to a point where we have what we call universal access, where everybody is able to access coverage to some degree or another,” a top Republican aide told the New York Times.

The “access” talking point became a go-to dodge in the GOP repeal effort.  During his Senate confirmation hearings, health secretary Tom Price repeatedly offered variations of a promise to ensure that all Americans “have the opportunity to gain access” to insurance coverage.

The Republican hope was that no one would notice the implication of their spin: the glaring fact that “access” is gigantic step backward from actual coverage.  It’s one thing to have mere “access” to a roof over your head; it’s another thing entirely to actually be covered by one.

But Bernie Sanders swiftly cut through the GOP noise at Price’s hearing.  “Has access to’ does not mean that they are guaranteed health care,” Sanders said. “I have access to buying a $10 million home. I don’t have the money to do that.”

The weak sauce of “universal access” set the tone for the slow motion nosedive of the GOP’s Obamacare repeal effort.  The line gradually disappeared as it became clear that there was no spin artful enough to sell the shitburger royale that was the Republican plan to toss 20 million plus people off of their health insurance.

But alas, the “access” dodge has been re-born to kick off yet another Republican effort to take from the poor and middle-class to give to the rich.  This time, it’s tax reform, the GOP’s con to goose working people with a pittance while showering its wealthy donor class with massive tax cuts.  It’s a plan that would hollow out the income distribution even more, exacerbating our already gaping income inequality.

To put a glossy sheen on this repulsive goal, Republicans are resurrecting the empty promise of “access.”  During a conference call with reporters previewing Trump’s tax reform pitch, one White House official said, “We’re going to build a tax code that really allows all Americans to have access to the American dream.”

Again, theoretical “access” to the American dream is far from the same thing as being able to attain the American dream.  As a matter of fact, Trump’s tax plan would give the poor a whole $40 toward that dream, while shoveling a whopping $940,000 to the already super-rich.  Who’s better positioned to buy the $10 million house here?

While White House staffers feel the inner tug to fudge the true nature of their policies, Trump has no qualms about outright lying.  On Wednesday, he promised that his tax plan will produce a “big fat beautiful paycheck” for millions of American workers.

It will not.  His plan will make the rich richer while tossing pocket change to the poor and middle-class.  It provides the same illusory and fraudulent pathway to the American dream that Trump University once did.  When it comes to providing access to broad prosperity, conservative policy is a bridge to nowhere.

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.

The case for federalizing Medicaid

If Donald Trump ever moves on from bickering over the size of his inauguration crowd to actually governing, one of the first orders of business will be churning out a promised “terrific” Obamacare replacement plan. While we don’t yet know the exact details of Trumpcare, Trump adviser Kellyanne Conway confirmed this week that block granting the Medicaid program to the states will be a big part of it.

This isn’t a surprise. Republicans like Speaker Paul Ryan and health secretary nominee Rep. Tom Price have called for kicking Medicaid down to the states for years. Unfortunately, it’s the exact wrong direction we should be going toward.

Medicaid provides health insurance to nearly one hundred million people, including children, pregnant women, nursing home residents, people with disabilities, and low-income Americans. For over fifty years, the program has been managed jointly by the federal government and the states. Washington finances at least half of the program’s costs, and often substantially more in poorer states. Obamacare expanded Medicaid to cover those just above the poverty line, and even offered to pick up the entire tab for the first years of the expansion. Still, nineteen conservative-led states turned down free money, causing a Medicaid “coverage gap” currently ensnaring 2.5 million people that would have otherwise gained insurance.

Conservatives in Washington want to drastically change this arrangement by simply cutting a check to the states and letting them run Medicaid. Conservatives like this idea for a few reasons. For one, a block grant creates more predictable (and lower) costs for the federal government. It gets the federal government off the hook for covering a share of whatever costs program enrollees incur, and instead just subsidizes state Medicaid programs. A block grant transfers most of the commitment of insuring vulnerable populations from the federal government to the states.

The problem, of course, is that this is a barely-concealed way of cutting healthcare funding for the poor. The only way for block grants to save the federal government money is to systematically lowball the amount of the grant. For example, the block grant plan pushed by Price and other House Republicans would slash Medicaid spending by $1 trillion — nearly 25 percent — over the next decade. A similar plan offered by Paul Ryan in 2012 would have caused up to 20 million Americans to lose their coverage.

This leaves it to individual states to pick up the slack, but it’s far from guaranteed that they are willing or able to do so. Medicaid is already one of the costliest expenditures for states, consuming on average nearly 20 percent of their budgets (second only to K-12 education). Making up for a $1 trillion funding gap would be a stretch even during relatively good economic times. But during a recession, block granting would be a disaster. While the federal government can take on debt to finance deficit spending, almost every state is required to keep a balanced budget. When revenues dry up during a downturn, states take an axe to social spending to make up the difference. These cuts inevitably come disproportionately from low-income programs. So the end result of block-granting means Medicaid will get cut to the bone just when more and more people will need it.

Block-grant proponents want to give states more of a role to experiment with Medicaid. But just as some states may seize on new flexibility to experiment upward with better, more generous programs, others will ratchet Medicaid downward by providing stingier benefits. Those nineteen states refusing the federal Medicaid expansion in particular have political cultures deeply hostile to insuring the needy. In Texas, for example, childless adults are ineligible for Medicaid regardless of how poor they are, and even parents are “too rich” for coverage if they earn more than 18 percent of the poverty line — $2,118 a year.

Even though national Republicans package Medicaid block granting as an exercise in states’ rights, it’s not clear how many states want the privilege of taking the primary lead in running Medicaid. Even some Republican governors worry that block grants will reduce the effectiveness of their safety nets. Medicaid block grants could easily follow the pattern of welfare reform — another safety net program devolved to the states during years of economic growth that has since shriveled away due to chronic underfunding.

Instead of block-granting Medicaid to the states, a better course is to do the exact opposite: have the federal government assume full responsibility for Medicaid. This would eliminate harsh state-based eligibility restrictions like in Texas, and would guarantee coverage for all who qualify. Because the federal government can run budget deficits, it is better situated to protect the program during economic downturns. And federalizing Medicaid would relieve the states of a massive fiscal burden, freeing up money for education, infrastructure, tax cuts, and other state projects.

Putting Medicaid entirely in the hands of the federal government may also better tame the program’s costs. As Greg Anrig of the Century Foundations writes, “taking 50 separate state bureaucracies out of the picture would be a meaningful step in the direction of reducing confusion and wastefulness.” Congress and federal agencies would also be better able to experiment with cost-containment strategies without the states in the mix.

Federalizing Medicaid could also yield tax relief for low- and middle-income Americans. While new federal revenues would need to be raised, the states would be free to cut taxes. And because the federal tax code is more progressive than the states’, most of the new financing for Medicaid would come from the wealthy. The net result would likely mean lower taxes for most Americans.

Federalization is not a new idea, nor a partisan one. As Anrig points out, Ronald Reagan proposed federalizing Medicaid in 1982 in exchange for giving the states over other safety net programs. Even earlier, in 1979 Jimmy Carter proposed federalizing Medicaid as part of his health reform pitch.

On the campaign trail, Donald Trump promised that he would not cut Medicaid. That’s a promise he cannot keep while also block-granting the program. Instead of pawning Medicaid off on the states, the federal government should lift it off of their shoulders entirely. That would give the states real flexibility.

Note: This post is cross-posted at Medium.

The awe-inspiring and dispiriting United States of America

It’s a whole new world, and like most everyone else, I didn’t see it coming.  Coming to grips with what Trump’s America looks like and means will take a long, long time.  But my immediate, still-distraught reaction is up at Medium.  The concluding thoughts:

The last eight years have seen a remarkable amount of social progress. Marriage equality became a reality. The century-long quest for health reform came to pass, protecting millions from devastation by illness. We fought off economic catastrophe and have made steady gains ever since. We created millions of jobs and built a thriving renewable energy industry for the twenty-first century from the ground up. We made serious inroads to curtail environmental harm and combat climate change. We took steps to corral a financial sector that helped land the entire economy in peril.

Trump’s election jeopardizes many of these gains. But it does not erase the fact that we are a society capable of producing the achievements of the Obama years.

We have seen figures like Trump before in our politics — people like George Wallace, Strom Thurmond, Jesse Helms, and other poisonous demagogues. Never before have we allowed one to come close to our highest office, let alone win it. That is unprecedented in our history.

But so was electing a black president. This may seem confounding — after all, how could the country that twice elected Barack Obama elect Donald Trump?! But the United States is a baffling and frustrating place — at once both awe-inspiring and deeply dispiriting. Admirable progress over the ills of our history often gives way to reactionary backlash and retrenchment.

We have a long and storied history of taking one giant leap forward, only to follow it up with a gut-wrenching step back. Lincoln’s freeing of the slaves in 1863 and a decade of Southern Reconstruction gave way to nearly a century of Jim Crow, lynching, segregation, and violent white supremacy. The outlawing of segregated schools in 1954 triggered massive resistance to black and white children learning together. The Civil Rights revolution of the 1960s fed Richard Nixon’s silent majority and the ensuing limitations on civil and equal rights. That Barack Obama will now turn the White House over to the birther Donald Trump is tragically in keeping with the rhythms of American history.

Yet we can change these rhythms. Obama likes to quote Martin Luther King’s statement that the arc of the moral universe is long, but it bends toward justice. Tuesday’s jarring electoral result is a reminder that the moral universe bends only from the dogged persistence and faithful agitation of those refusing to give up the fight. Progress is not guaranteed, and advancement is not simply the natural course. Left alone, the moral universe quickly reverts back toward a darker past. When we ease up, it eases down.

But by fighting on, we hasten the day when our country’s government once again stands for hope, progress, and decency. So don’t look to Canada. Don’t give up on America, and don’t drop out of politics. Despair today. Then rejoin the fight.