Last night was about healthcare

The country sent Donald Trump and the Republican Party a clear brush back pitch on November 7, 2017.  Democrats enjoyed their best election night in a half decade, winning high-profile governor’s races in New Jersey and Virginia, and making massive statehouse gains in states across the country.  It was a rout — a veritable “ass-kicking,” in the words of Connecticut senator Chris Murphy.

And the common thread of the night was Americans sticking up for their healthcare.

In Maine, nearly 60 percent of voters approved a referendum to adopt Obamacare’s Medicaid expansion, extending health insurance to 89,000 low-income residents.  The state’s intransigent troglodytic governor Paul LePage had ardently opposed expansion, repeatedly slandering Maine’s would-be Medicaid recipients as lazy leeching “able-bodied adults who can work and contribute to their own health insurance costs.”  The people of Maine just put LePage in his place, going around him to overwhelmingly approve healthcare for their neighbors.

Medicaid’s rousing victory in Maine is expected to inspire similar ballot initiatives in more non-expansion states in 2018.  These could include Utah, Idaho, Kansas, and other states that have held out against expanding Medicaid.

In Virginia, a tight governor’s race turned into an easy win for Democrat Ralph Northam.  This has roundly been read through the lens of Northam’s Republican opponent, supper lobbyist Ed Gillespie, who remade himself in the image of Trump be running on racial fear-mongering in an attempt to gin up the conservative base.  Voters in Virginia roundly rejected Trumpism on Tuesday.

But the results were also driven by voters’ concerns about their healthcare.  Nearly 40 percent of Virginia voters surveyed in exit polls reported that healthcare was their most important issue, far outpacing any other concern.

Democrats also made historic gains in Virginia’s House of Delegates.  As of Wednesday morning, Democrats had picked up an incredible 14 seats in the hundred-seat statehouse, pulling to a 48-47 lead with five races still being tallied or too close to call.

Winning a statehouse majority would extend Medicaid to 400,000 low-income Virginians.  Current Democratic governor Terry McAuliffe tried for years to expand the program, but the Republican-controlled House of Delegates blocked him at every turn.  A Democratic-led statehouse would allow Virginia to finally expand the program.  But even a House of Delegates with a slim Republican majority will feel incredible pressure to expand Medicaid in light of Tuesday’s sweeping election results.

These were state elections, but they were driven by national politics.  Donald Trump and Republicans in Congress relentlessly attacked the health security of millions of Americans for the vast majority of 2017.  Their party paid for it up and down the ballot on Tuesday.  Voters fought back to protect their care.

Before Tuesday, Republicans in Congress were toying with using their tax reform bill to take another stab at secretly gutting Obamacare by repealing the law’s individual mandate.  If Congress balks, Trump is poised to continue his administrative campaign to sabotage the law by readying an executive order unraveling enforcement of the mandate.  Either would strike a massive blow against ensuring affordable healthcare access under Obamacare.

Republicans go after healthcare at their own risk.  Tuesday’s electoral sweep follows on the heels of a surge of early sign-ups on Obamacare’s health exchanges despite Trump’s best attempts to thwart them.  The anti-Trump resistance flexed its muscle last night.  If Republicans train their fire on healthcare yet again, they will only fuel the greater storm gathering for November 2018.

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The parable of Donald Trump and the imaginary hospitalized senator

Congressional Republicans failed again to repeal Obamacare last week.  To rationalize yet another swing-and-a-miss, President Trump took a novel approach: he invented a hospitalized senator.  “We have the votes,” Trump falsely claimed to Fox and Friends, but “we don’t have enough time, because we have one senator who’s a ‘yes’ vote, he’s a great person, but he’s in the hospital.”

This appeared to be an odd spin on the plight of Sen. Thad Cochran, who was forced to publicly clarify that he was not actually hospitalized, but was home recuperating from a “urological issue.”  And of course, even with a healthy Cochran, the GOP still lacked 50 votes for its bill, with Sens. John McCain, Rand Paul, and Susan Collins all opposed.

Still, Trump’s fabrication of the hospitalized clinching vote is a fitting coda to the latest GOP healthcare failure.  After all, the entire battle against Obamacare has been founded on fantasy.

It was a fantasy that Obamacare was a tyrannical government takeover of the healthcare sector.  In reality, it was a modest step to patch up the holes in our ragtag mix of public and private coverage, meant to scoop up most of the people who fell through the cracks and were victimized by the old status quo.  Obamacare was such a centrist program that it left the GOP no room to maneuver rightward while still maintaining its popular coverage guarantee for people with pre-existing conditions.

It was a self-delusion that Obamacare was failing or caught in the throes of a death spiral, as Republican leaders like Speaker Paul Ryan like to claim.  Every indicator of insurer profitability showed that Obamacare’s marketplaces became a stable, safe place to sell insurance last year.  And every government study found that the marketplaces were on firm ground for the foreseeable future.  Even Trump’s own Health and Human Services department admitted that the marketplaces were in good shape–but that didn’t stop him from spreading the myth that Obamacare remains on the brink of collapse.

It was masochistic wishful thinking to believe that Obamacare was sowing ruin in the lives of American families.  For millions, the law was quite literally a lifesaver.  For the first time, people with preexisting conditions were guaranteed a right to affordable healthcare.  People who already had insurance could rest easy knowing that a costly illness or injury wouldn’t bankrupt them, thanks to the ban on caps on insurance coverage.  The repeal drive in particular revealed the immense popularity of Obamacare’s Medicaid expansion, and how much people had come to depend upon the law’s protections.

Certainly, Obamacare is not a perfect law.  But it was absurd to think that the GOP’s proposals would do anything to fix its flaws.  Mitch McConnell, Ryan, and other Republican leaders spent years ripping Obamacare for its high premiums and deductibles–and then turned around and embraced a series of bills that would make those problems much, much worse.

The conservative movement’s “alternative facts” problem well predates Trump.  But Trump undoubtedly made the problem worse, normalizing the acceptability of outright lies about policy proposals.  Trump’s shameless disregard for the truth made it okay for other Republicans to insist that their healthcare bills would cover everyone and lower premiums–when time after time, the exact opposite was true.  In the latest Republican run at Obamacare, it’s what made it okay for Bill Cassidy to lie that his bill guaranteed coverage for people with pre-existing conditions, even though it was clear that it left room for states to kick those very people off of their coverage.

It was this unbridgeable chasm between fact and fiction that ultimately doomed the repeal effort.  After being fed fantasies for seven years, average Fox News-ingesting conservatives–like Trump himself–came to believe that Obamacare really was a disaster and that their leaders had actual plans to do better.  But as Barack Obama warned Trump after the election, “Reality has a way of asserting itself.”  And the gap between healthcare reality and fantasy was massive, sucking the GOP’s repeal plans into the vortex in between.

It has long been clear that Republicans would be unable to produce effective healthcare legislation.  And it was predictable that this would all end with the GOP scampering away with a contrived excuse to preserve some dignity to fight another day.  That the best apparent excuse involved a non-decisive senator’s urological outlook speaks volumes about the shattered state of that dignity.

Republicans won’t soon give up the ghost of Obamacare repeal.  Fantasy or not, repeal has been the party’s central policy goal for seven years.  It’s much easier to keep taking potshots at universal healthcare and to fire off Hail Mary repeal bills than it is to rethink what it means to be a conservative in a governing party–particularly with a president void of core principles or long-term policy visions.  Right on cue, congressional Republicans are still leaving the door open to take yet another run at Obamacare in 2018, undeterred by their latest face-plant.

For the better part of a decade, Republicans have committed themselves to a policy mission premised on a series of fantasies. It’s no surprise that they’d conjure one more to excuse their failure—a way to cling to the illusion that they’ll grab the brass ring next time.

So they beat on, boats against the current, forever one healthy urinary tract away from the promised land.

Kamala Harris & the progressive healthcare message, take 2

In May, Democratic Senator Kamala Harris sat down with the Pod Save America guys for and laid out a somewhat jumbled four-part message on healthcare, vowing to: (1) protect Obamacare from then-active Republican repeal efforts, (2) empower government to combat prescription price gouging, (3) “look at the Cadillac Tax and deal with that,” and finally, (4) pursue a Medicare-for-All-type system.

observed at the time that Harris’s rough-draft answer showed that there was work to be done on honing the affirmative message communicating the progressive vision for healthcare.  Burying a tepid endorsement of Medicare-for-All behind Cadillac Tax repeal left much to be desired.

Harris has significantly tightened up her healthcare message.  On Wednesday, she announced that she would co-sponsor Sen. Bernie Sanders’s upcoming single-payer bill.  “I intend to cosponsor the Medicare for All bill,” Harris tweeted.  “Health care is a right, not a privilege.”

Harris is a probable 2020 contender for the presidential nomination.  While others have expressed support for single-payer, she is the first establishment Democratic to put her name on actual legislation.

This is yet another indicator that the center of gravity within the Democratic Party is swarming to the left.  Harris took some flack from the left for allegedly lacking progressive bonafides.  I argued that Harris and other prominent center-left Democrats are actually testaments to the left’s success in reshaping the party’s agenda.  Her unequivocal embrace of single-payer now adds to that success.

She endorsed the view that healthcare is a fundamental right.  This is a common rhetorical assertion among progressives.  But it has the benefit of uniting the party’s supposed rift between those prioritizing economic issues and others prioritizing social and identity issues.  “Healthcare is a right” presents universal coverage as an issue of both economic and social justice.

Still, there is reason to slow down the Democratic rush to sign on to single-payer healthcare.  Democrats may quickly find themselves on the wrong side of the public’s deep status quo bias toward healthcare–the same fear of change that stymied Republicans’ Obamacare repeal efforts this year.  The public may express support for a single-payer system as a way of voicing dissatisfaction with our current healthcare system.  But when the rubber hits the road, for many people, there’s just too much at stake in healthcare to venture too far away from the system they already know.

There are always painful tradeoffs in healthcare.  There are transitions that must be navigated, revenues that must be raised, and industries that must be displaced or accommodated.  By putting their names to legislation, Harris and other Democrats will be taking sides in those tradeoffs.  Medicare-for-All will no longer be an abstract wishful preference.  It will be real dollars and cents, legislative carve-outs and burdens.

The progressive healthcare vision is coming together in refreshingly bold terms.  But Harris and other Democrats need to make sure that they are prepared to stand by all that this entails.

How the Obamacare repeal fight could lead to bigger government

The Republican legislative charge against Obamacare appears to be dead for the time being.  But the GOP’s bedeviling ordeal to roll back the healthcare law may have already backfired. Progressives might come away from this fight seeing virtue in reaching for bigger government solutions for America’s social safety net.

Obamacare’s staying power is Exhibit A of how social insurance programs are inherently sticky.  Political scientist Paul Pierson has observed that conservatives perpetually fall well short of reversing the biggest expansions of the welfare state.  Ronald Reagan largely acquiesced to Medicare and Social Security—even though he had long opposed both programs as menaces to American freedom.  In the United Kingdom, Margaret Thatcher was stymied from unwinding Britain’s national healthcare system.

Pierson theorized that welfare state expansions last because they fundamentally reshape politics by creating strong interest groups of beneficiaries to defend these programs.  “[T]he emergence of powerful groups surrounding social programs may make the welfare state less dependent on the political parties, social movements, and labor organizations that expanded social programs in the first place,” Pierson argued.

That’s why the defense of Obamacare this year proved so potent.  The law’s Medicaid expansion created a new class of beneficiaries to advocate for the program, and who stood to become human carnage under any rollback.  And the law created a constituency of people who counted on government help to get affordable decent coverage, and others who depended on the law’s regulations to protect them from pre-existing conditions exclusions or lifetime caps on benefits.  Quite simply, Obamacare helped a lot of people—many of whom became passionate and highly credible advocates for the law in 2017.

So if Democrats can just heave a new social program over the finish line in Congress, that program can then generate its own defenders even if the political climate in Washington swings to the right.  In 2010, Democrats squeaked Obamacare into law, and then proceeded to lose both houses of Congress and the White House over the ensuing six years.  But by cultivating a new class of Obamacare beneficiaries, the law became remarkably resilient even as Democrats’ hold on power collapsed.

So what type of program should Democrats be trying to muster into law?  One that can withstand permanent conservative opposition.  One thing is clear from the Obamacare experience: Democrats will get no credit or Republican buy-in for adopting a moderate, market-centered approach for social insurance programs.  Obamacare’s health insurance marketplaces were designed as public-private partnerships, where the government relies on private insurers to help expand healthcare access.  Democrats famously poached this idea from former Republican presidential nominee Mitt Romney’s tenure as governor of Massachusetts.  Still, Republicans vehemently turned on their own idea simply because a Democratic president had embraced it.

But a moderate policy design without bipartisan support has turned out to be extremely vulnerable.  While Obamacare stands mostly intact in spite of fervent conservative opposition, the prospect of full or partial repeal of the law perpetually spooks insurance companies.  Insurers hike premiums or leave markets altogether, jeopardizing the ability of whole swaths of the country to meaningfully benefit from national health reform.  And of course, when a hostile administration is charged with running the program, there are countless levers it can pull to deliberately trigger an insurer stampede and to cause the program to fail.  Obamacare’s design leaves it at enormous risk under a saboteur-in-chief.

The solution is to bolster social programs with more robust government-run options.  Skittish Democrats built Obamacare around private insurers in order to avoid being tagged as executing a big government takeover of healthcare—but conservatives called it one anyway.  If Democrats are going to be branded as overreaching socialists either way, then they may as well come away with something stronger to show for it, rather than settling for a rickety structure dependent on the voluntary participation of bottom-line-driven private companies.

To be effective in the long run, most social insurance programs need public options.  For Obamacare, this might mean opening up Medicare, Medicaid, or other public insurance programs to scoop up those who are being underserved by the law’s private insurance expansion.  Or maybe it means transcending Obamacare altogether with a single-payer system.  Either way, buttressing Obamacare requires tilting the law’s center of gravity away from private insurance options and toward public ones.

After all, while the GOP may be licking its wounds for now, don’t count on its anti-Obamacare fever to ever truly break.  A few congressional Republicans may be ready to finally pursue pragmatic tweaks to make Obamacare work better.  But opposition to universal healthcare has been the central tenet of the Republican Party for nearly a decade.  It’s far more convenient for the GOP to continue launching salvo after salvo at the law than it is to rethink what it means to be a conservative.

Republicans were still coming after Social Security seventy years after its enactment, trying and failing to partially privatize the program in 2005.  Paul Ryan still dreams of dismantling Medicare fifty years after LBJ signed it into law—a dream built around the same public-private health insurance partnership that he and his party discredited under Obamacare.

If this history is any guide, there’s little use in hoping for a true truce over the pillars of the welfare state.  Instead, progressives must fortify them to withstand an interminable barrage.

The Senate healthcare bill might be unconstitutional

Senate Republicans just won’t let their healthcare bill die. But if the political process doesn’t kill it, the U.S. Constitution might. That’s because the Senate bill now imposes insurance market death spirals on any state that fails to step in to create its own positive health policy. That very well may be unconstitutional under the Tenth Amendment’s prohibition on coercing the states.

On Friday, the Senate’s Better Care Reconciliation Act (“BCRA”) took a Byrd Bath. That’s the process by which the Senate parliamentarian reviews a reconciliation bill to make sure each provision is related to the federal budget. Provisions that aren’t sufficiently related to spending get eliminated from the bill and cannot be passed by a bare majority reconciliation vote.

Unfortunately for the GOP’s already-floundering healthcare effort, the parliamentarian just knocked out some major provisions of BCRA. She ruled that a provision defunding Planned Parenthood requires sixty votes to succeed. And she ruled that a provision prohibiting federal tax credits from paying for abortion services requires sixty votes as well.

These are deep political blows to Republicans, making “passage almost impossible,” according to Rep. Mark Meadows. But perhaps the most devastating decision by the parliamentarian struck down the GOP’s six-month lockout proposal. This policy was meant to be a conservative replacement for Obamacare’s individual mandate. It would make anyone who failed to maintain continuous insurance coverage wait six months before signing up for insurance. This is meant to stabilize insurance markets by nudging healthy people to sign up or face a six-month penalty.

Without the six-month lockup provision, BCRA suddenly has no mechanism to stabilize insurance markets. This leaves Senate Republicans courting insurance market disaster. The GOP would leave in place Obamacare’s politically popular guaranteed issue and community rating requirements. Guaranteed issue means that insurers cannot deny coverage to people with preexisting conditions. Community rating requires insurers to offer coverage to sick people at the same price they offer to healthy people.

For insurance markets to remain stable under these regulations, they must have a broad risk pool with a substantial number of healthy people enrolled in coverage. That’s why the individual mandate to purchase coverage is so crucial, pulling healthy people into the market. Without any type of penalty for forgoing insurance, anyone can buy insurance at any time. This means that more healthy people will decide not to purchase insurance until they need it. With the healthiest people opting out of the market, costs go up for everyone else, leaving a sicker risk pool left over. The next healthiest group then drops coverage, making costs rise and the risk pool sicker still.

This is what’s known as an insurance market death spiral — a process that culminates in a moribund insurance market with few if any insurers willing to sell. And that’s exactly what would happen under either GOP healthcare bill. For Senate Republicans to press ahead with BCRA in its current form would be to deliberately inflict insurance market death spirals.

At the same time, the GOP bill loosens the requirements for states to obtain waivers from federal regulations. As Nicholas Bagley explained at Vox, “Under the Affordable Care Act, a state has to show that its alternative plan would allow it to cover as many people, with coverage as generous, without increasing federal spending. [. . .] [But] [u]nder the Senate bill, to get a waiver, a state doesn’t have to demonstrate anything about coverage. Instead, it just has to show that the plan won’t ‘increase the federal deficit.’”

This makes it significantly easier for states to obtain waivers from national healthcare rules. Indeed, as long as a state’s proposed plan doesn’t increase federal spending, the federal government is required to grant that state’s waiver request under BCRA.

So post-Byrd Bath, the Senate bill pairs disastrous, death-spiral inducing federal insurance market rules with a much more permissive process for states to obtain waivers from those very rules. From one vantage point, it appears that the Republican Congress could even be threatening a booby-trapped insurance market if states don’t take action to seek waivers to implement their own regulatory policies. That is, the GOP healthcare bill is so bad, it could only reasonably be meant to provoke state-based reform.

That’s where the Senate bill gets into constitutional trouble. The Supreme Court has read the Tenth Amendment to prohibit Congress from enacting legislation that coerces the states. The states are sovereign entities, and Congress cannot try to compel desired action from them through overly strong-arm tactics. For instance, when Obamacare threatened to cut off all pre-existing Medicaid funding from any state that declined to expand its program to cover the near poor, the Supreme Court held that this threat amounted to undue coercion. As Chief Justice John Roberts put it in NFIB v. Sebelius, this threat amounted to Congress pointing a “gun to the head” of the states. No reasonable state would have had any meaningful choice.

One could read BCRA as posing a similar threat to the states: adopt state-based health reform, or have your insurance markets destroyed by malicious federal regulation. Indeed, this promotes the conservative preference for federalism and state-level policymaking. Under BCRA, if state lawmakers want healthy insurance markets, they will need to take affirmative legislative action to enact market-stabilizing policies and to seek federal waivers to take steps to save their insurance markets.

This looks awfully coercive. If states don’t act, BCRA’s perverse regulatory regime destroys their insurance markets. BCRA thus becomes a way to compel state action.

But don’t take my word for it. There’s some indication that the Supreme Court considers the threat of insurance death spirals to be constitutionally problematic. In King v. Burwell, opponents of Obamacare argued that Congress had conditioned subsidies for individual insurance enrollees on each state’s decision to run an insurance marketplace. If so, that meant that Congress had threatened states with insurance market death spirals if they didn’t run their own exchanges: without subsidies, the individual mandate would be inoperative while guaranteed issue and community rating remain in effect (the same dynamic as under BCRA). Such a federal regulatory environment would have plunged insurance markets into death spirals in states that refused to comply with the wishes of Congress.

A coalition of law professors and non-profit organizations presented this problem to the Supreme Court in an amicus brief (on which I advised). And at oral arguments, multiple justices worried about the coercive effects of Congress imposing death spirals on the states. Justice Anthony Kennedy called it “a serious constitutional problem.” “The states are being told: Either create your own exchange, or we’ll send your insurance market into a death spiral,” he said.

Justice Sonia Sotomayor was similarly troubled by the coercive implications of the plaintiffs’ reading of the ACA. “If we read it the way you’re saying,” she said, “then we’re going to read the statute as intruding on the federal-state relationship, because then the states are going to be coerced into establishing their own exchanges.” (In its opinion, the court ultimately steered clear of any constitutional issues by locating an anti-death spiral constraint in the statute itself.)

Granted, these are the oral argument musings of just two of the Court’s nine justices. But one could imagine a state opposed to Obamacare repeal seizing on these hints from King v. Burwell to attack BCRA in court, pressing the Supreme Court to deal with the “serious constitutional problem.” For BCRA presents a unique perversion of the federal-state relationship: federal legislation so awful that it coerces any reasonable state into action.

The Senate’s healthcare bill was bad when it was introduced, and it got made worse after undergoing its Byrd Bath. The GOP’s healthcare effort is no longer just politically dire. It has now ventured into potentially unconstitutional territory. The same is true of the Senate’s alternative “repeal only” bill, which too would eliminate the individual mandate without bothering to supply any replacement.

The Senate is due to vote to begin debate on Obamacare repeal in a matter of hours. After the parliamentarian’s decision, the Senate’s bill currently lacks any meaningful way to protect insurance markets. If Senate Republicans press on with the bill in its current form, they will be assenting to inflicting grave harm on health insurance markets across the country. And they may be casting a bad vote for a bill that’s on the wrong side of the Constitution.

 

Note: This post is cross-posted at Medium.

Medicaid is once again a conservative piñata

Margot Sanger-Katz writes at the New York Times that the Republican healthcare bill is increasingly becoming a rollback of Medicaid:

“[T]he Medicaid caps have not drawn the same public outcry as other provisions of the law that would cut back on coverage more directly. Several Republican senators have expressed concerns about changes to Obamacare’s Medicaid expansion, which broadened the program to include more low-income adults in 31 states. [ ] Others worry about changes to private insurance subsidies that would make insurance less affordable to older, middle-class Americans. Fewer have spoken out about the cuts to Medicaid’s legacy beneficiaries. That means that, as the Senate works out final details, the forced diet for Medicaid is likely to stay in the bill.”

The GOP bill plans draconian cuts to the Medicaid program, both by unwinding Obamacare’s expansion of Medicaid coverage to people earning up to 138 percent of the poverty line, and by capping the amount that the federal government will chip in to cover people on “traditional” Medicaid.  These cuts jeopardize healthcare for people from all walks of life, including middle-class families with children with disabilities, or elderly people in nursing homes.  Nearly one hundred million Americans rely on Medicaid—our country’s largest health insurer.

But in the conservative war against Obamacare, Medicaid has always been a convenient target.  In the first hotly politicized court challenge to Obamacare in 2012, the Supreme Court upheld the law’s individual mandate, but weakened its Medicaid expansion by making it voluntary for the states.  Even liberal justices Stephen Breyer and Elena Kagan joined the Court’s conservatives in striking down the mandatory Medicaid expansion.  This preserved the individual insurance markets for the middle-class, while leaving public insurance coverage for the near-poor at the whims of state governments.

Conservative lawmakers seized on the “Red State Option” opened up by the Court to make their stand against Obamacare.  Nineteen states held out and refused free federal money to cover nearly all of the expansion.  Instead, conservative state leaders denied healthcare coverage to some 2.5 million people in order to claim a scalp from Obamacare.

Conservatives at the time trotted out half-hearted pretextual reasons for spurning the Medicaid expansion.  Some argued that they didn’t believe the federal government would maintain funding for Medicaid.  Others second-guessed Congress for running deficits and taking on new debts to extend healthcare to more people.

The irony, of course, is that until now, the federal government has never permanently reduced state funding for Medicaid—and has twice increased funding in the last twenty years.  (A small exception was in 1981, when President Reagan and Congress enacted a temporary Medicaid funding cut.)  It required a conservative takeover of Washington to bootstrap in the spurious fear of Medicaid cuts that their ideological brethren supposedly fretted over in the states.

What’s more, the concern-trolling of state conservatives over the federal debt is proving just as hollow.  Congressional Republicans are poised to slash Medicaid funding for the poor with one hand while doling out gargantuan tax cuts for the wealthy donor class with the other.  The net impact of squeezing Medicaid on the federal debt will be negligible at best.  Yet the silence from conservative fiscal hawks is deafening.

A second irony (really more of a tragedy) in the Republican healthcare ransacking is that Medicaid had been the most successful vehicle for Obamacare’s coverage expansion, helping cut the uninsured rate in the United States to never-before-seen lows.  The subsidized private insurance marketplaces have only reached half the size that the Congressional Budget Office expected when the law was enacted.  But Medicaid has outpaced expectations, signing up 40 percent more people than CBO expected—even though a couple million people have been blocked from signing up by conservative state governments.

Medicaid is an inherently institutionally vulnerable program because its traditionally thought of as a program principally for the poor.  Liberals like Bill Clinton have tried to refashion our perception of Medicaid over the years, pointing out (correctly) that it provides life-saving and valuable services for the middle-class, too.

Up until now, Medicaid’s protectors have been able to stave off the full conservative assault on the program.  But it’s not without its scars from the persistent attacks.  Seven years after Obamacare became law, conservatives are still hunting for enough scalps to claim a victorious repeal.  And now that they’re in power, Medicaid is their juiciest target.  Perhaps they really will live out the fantasies of Paul Ryan’s keg parties past.

Kamala Harris & the progressive healthcare message

Sen. Kamala Harris is the newly-elected junior senator from California, and one of the Democratic Party’s rising stars.  She recently sat down for a live taping of the popular podcast Pod Save America in San Francisco.  Jon Favreau asked Harris about what the Democrats’ positive message on healthcare should be.  Her answer is worth exploring, for it gets at substantive decisions that Democrats must reckon with as they chart a path forward in both immediate resistance and future governance.

First, Harris said that “step number one is not to eliminate” Obamacare, reciting the Congressional Budget Office’s projection that the Republicans’ repeal bill will throw 24 million people off of their coverage.  So far, so good—but that’s not a positive message, it’s a defensive one.

Next, she pivoted to talking about ways to improve Obamacare.  But she only mentioned allowing the government to negotiate prescription drug costs “so these prescription drug companies aren’t just taking such advantage of us,” and pointed to the Epi-Pen price-gouging scandal.

Sensing that this was a pretty thin positive message, Jon Lovett pushed her to name more things that Democrats should do to improve healthcare.  And Harris responded by pointing to…the Cadillac Tax.  “I think we need to look at the Cadillac Tax and deal with that,” Harris said.

Harris continued, offering some prolonged word salad of stammering qualifiers before endorsing a Medicare for All single-payer system as the vision of progressive healthcare.  “And then there is what we need to do around really at some point figuring out how at some level we are going to have a policy that is Medicare for All.  That would be the ultimate and great place to be, Medicare for All.”  Her pitch for Medicare for All won much applause from the crowd.

Harris declined to formally endorse the single-payer bill winding its way through the California legislature, saying, “I like the concept but we need to work out the details.”  She concluded that as a country, “We need to get to a place where it is not a function of your income that you have access to healthcare.”

It’s worth unpacking that answer.  Leading off her “positive message” on healthcare by talking about the Cadillac Tax is baffling to say the least.   The Cadillac Tax is an Obamacare provision that imposes an excise tax on the most expensive — and generous — health insurance plans offered by employers.  This is meant to both generate revenue for Obamacare’s coverage expansion, and to steer employers away from uber-comprehensive insurance plans that help drive up healthcare costs.  The tax is unpopular—liberals like Bernie Sanders and Hillary Clinton have joined conservatives and labor groups in pushing for its repeal—and has been routinely delayed by Congress.  It isn’t scheduled to take effect until next year.

Presumably, when Harris says that we need to “deal with” the Cadillac Tax, she means we need to repeal it.  But endorsing a rollback of a subsidiary part of Obamacare that will help pay for its coverage expansions won’t exactly stir progressive ambitions.

Harris ultimately got around to re-iterating that guaranteed healthcare for all is the long-term progressive vision, backing a government-run system.  She stood up for the principle that healthcare is a right that should not be dependent on one’s income.  And letting Medicare negotiate drug prices is a fine idea—one that Trump himself might be amenable to working with Democrats on.

But there’s a lot to work through in Harris’s support for Medicare for All as the party’s positive vision.  As I have written, there is both significant apprehension and large institutional hurdles surrounding single-payer healthcare that won’t be easily overcome.  There are other progressive policies—like a Medicare buy-in, a public option, and expanded Medicaid eligibility—that would make progress toward government-provided healthcare for all, without crumbling under the weight of intense public and stakeholder opposition.

So is Harris endorsing Medicare for All as an imminent solution?  If so, is she throwing out Obamacare and starting from scratch, or building on it with incremental reforms?  What do those reforms look like?  Does that make Medicare for All in fact just a long-term aspiration that maybe just might eventually obtain “at some level”?

In Harris’s defense, a podcast interview probably isn’t the venue to suss out these nuances.  But without these details, “Medicare for All” becomes little more than a slogan—an applause line for liberal crowds.  Maybe that’s the future of progressive health policy: campaign on “Medicare for All”, but enact “Medicare for More.”

Harris is also far from the only prominent Democrat to fumble a progressive healthcare message.  Sen. Cory Booker (another potential 2020 contender) recently gave a similarly mealy-mouthed answer on Medicare for All, which his office cleaned up as “one of those ideas that must be considered.”

Like Booker, Harris is a compelling and engaging politician, and has an exciting future as a Democratic leader.  Like many other prominent procedural or “rights-oriented” liberals, she seems much more at ease standing up for social justice than for economic justice.  And she’s hardly the first upcoming Democratic politician to give a jumbled answer on healthcare—Barack Obama famously fell flat at a healthcare forum early in his 2008 campaign for president.

But Harris’s answer is illustrative of a bigger problem for the Democratic Party.  Maybe Democrats have been too consumed with the fate to save what they’ve already accomplish to flesh out just exactly what comes next.  But in resisting Republican efforts to tear down Obamacare, it’s essential to explain just what exactly the Democratic alternative looks like.  If Harris’s positive message on healthcare is any indication, there’s more work to be done on figuring out just what the alternative will be.

TrumpCare dies another death

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An action shot of the House’s latest attempt to repeal Obamacare

As if trapped in a time loop, Republicans yet again pulled their Obamacare repeal bill after—yet again—failing to come up with the votes to pass it out of the House:

“An 11th-hour White House push to give President Trump a major legislative victory in his first 100 days in office broke down late Thursday as House Republican leaders failed to round up enough votes for their bill to repeal the Affordable Care Act.”

There is no mystery here: no matter how much they try to tweak their bill, there is no congressional majority to eliminate Obamacare’s coverage gains.  There is no majority in the House, and certainly not in the Senate.

The relentless push to repeal Obamacare that became party dogma in opposition has deflated under the reckoning of governance.  The puritanical faction of Republican true-believers that would follow through on the bluster of opposition simply does not constitute the majority needed to pass laws.

That’s because the core question is whether government will backtrack from its commitment to ensuring decent, affordable healthcare for everyone.  Another way of putting it is whether government will abandon the principle that those with the misfortune of illness are not second-class citizens and are entitled to security in health and wellbeing just like everyone else.

Stripped of its wonkery (of which I am happy to indulge), that’s what this debate comes down to.  The House’s first repeal attempt fell apart because it would have buried the poor and sick with outrageous new costs and thrown them off their insurance.  Its newest attempt faltered because it would subject Obamacare’s protections for the sick to a veto by the states, segregating some people with costly illnesses into theoretically (but not really) separate-but-equal insurance pools.

Republicans have not yet mustered the blind political might to execute either act of cruelty.  Enough of their party has hesitated in the face of retreating from the government’s duty to protect the sick.  Indeed, reports suggest that as many as 50 House Republicans secretly do not want any part of Obamacare repeal.

Which is not to say that the so-called moderates are eager Obamacare supporters.  When Obama’s veto shielded them from political responsibility—that is, before the GOP was firing “live rounds”—House Republicans passed bill after bill repealing Obamacare.  This empty gesture amounted to a statement of the ideological preferences of the moderates—a philosophical opposition to the idea of government guaranteeing healthcare.

But reality has asserted itself now that Republicans are in the seat of power.  Obamacare’s endurance comes from its fundamental principle that healthcare is a right.  It shifted the baseline on how our healthcare system operates, and shifted political dynamics accordingly.  These new political dynamics are what the GOP willfully didn’t see coming—and what are now coming home to roost, eroding the legislative muscle behind rescinding Obama’s greatest achievement.

One must wonder what the whole point of this latest exercise in futility was.  Why go through the doomed charade of negotiations between the House Freedom Caucus and the Tuesday Group given the raw math facing repeal?  Was it to pin blame on the moderates?  On the Senate?  For Paul Ryan—who a month ago admitted that “Obamacare is the law of the land”— and the House leadership to pass the buck to the rest of their caucus?  To throw a Hail Mary attempt to give Donald Trump the semblance of an achievement within his first 100 days in office?

Probably some combination of the above.  But whatever it was, the bigger mystery is just how many times Republicans will fall on their face before coming to terms with their unthinkable: that Obamacare is here to stay.

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.