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I Don’t See Any Method At All

[ 2 ] March 24, 2017 |

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We almost take it for granted now, but it really is remarkable how nutty Republican lawmaking is:

That’s the fundamental insanity of running headlong toward a floor vote without a score from the CBO. A lot of pixels have been spilled on the basic hypocrisy of the procedural aspects of the AHCA. But the real issue here is about substance, not process. Making public policy is hard. The CBO is a tool to help make sure members of Congress understand what they’re doing. They are not using that tool, and consequently, they are flying blind — voting for a series of interlocking changes that will drastically impact tens of millions of people’s lives with no idea what is going to happen.

Most egregiously of all, at this point the tempo is apparently being dictated by Donald Trump’s personal pique at recalcitrant House members.

A president with no interest in the details of public policy is impatient with the idea that House members might care what the content of the bills they pass is, and has decided to make passing this law a test of personal loyalty to him.

That’s a ridiculous way to think about legislation in general. But it’s a particularly egregious way to think about this particular bill, since candidate Trump would have thoroughly denounced it. He promised — in the primary, in the general election, and even during the transition — to put forward a plan that covers everyone, lowers deductibles, and protects Medicaid. He then hashed out a bill that doesn’t do any of those things, and is now professing to be not just eager to pass a bill that defies all of his campaign commitments but furious at people who are skeptical of the merits. Meanwhile, even if it does pass, the bill would have to be substantially revised to have any chance in the Senate.

There’s simply no reason to be doing this. At best, House members will be taking a politically tough vote for an unpopular bill that doesn’t become law. At worst, it will somehow actually become law, and members will find themselves accountable for the catastrophic consequences they haven’t even bothered to try to understand. All out of misguided loyalty to a president who never supported these ideas and doesn’t appear to have any interest in the content of the legislation.

My only quibble is that I don’t think this is out of misguided loyalty to Trump. Rather, as Matt’s colleague observes the longer the process drags out the worse the chances become, precisely because the longer the process goes the less popular TrumpCare will be. Their best chance of passing something is now. I doubt that anything that can pass the House can get 50 votes in the Senate — but if you’re a fanatic bent on wrecking the American health care system it’s the best chance you’re going to have for a while.

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Republican Health Care Policy in a Nutshell

[ 77 ] March 23, 2017 |

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What a guy:

The good news is that nobody who might need a mammogram has ever been covered through a man’s health insurance. And probably Essential Health Benefits are all that kind of woman’s stuff, not things involving real people or anything.

You’d like to think Roberts is an outlier, but this is a fairly common Republican talking point. And this kind of obscene self-centerdness isn’t just for people who consider themselves conservatives. Tom Scocca’s response to Lori Gottlieb’s complaints that she had to continue to pay for maternity coverage after insurance (i.e. other people) had pad for her childbirth remains instructive:

Writing in today’s New York Times opinion section, the psychotherapist and Atlantic contributor Lori Gottlieb offers a shocking first-person account of why the Affordable Care Act is in so much political trouble: It’s because many Americans are too stupid and too selfish to understand how health insurance works, on the most fundamental level.

This is not what Gottlieb thinks she’s written. She thinks she’s written about how harsh and unfair Obamacare has turned out to be for ordinary insurance customers like her. As someone without employer-provided insurance, Gottlieb is facing “the cancellation of my individual P.P.O. policy and the $5,400 annual increase that I would have to pay for the Affordable Care Act-compliant option.”

Gottlieb describes this as “a serious burden on my family’s well-being,” and she is taken aback that when she complained about it on Facebook, only one person gave it a “like.” Many people—the “smug insured,” she calls them, a la Bridget Jones—expressed a complete lack of sympathy for her plight.

Maybe the reason that Gottlieb’s Facebook friends are not sympathetic toward her is that she is thoroughly unsympathetic. Under her new, intrusively excessive policy, she writes, “now if I have Stage 4 cancer or need a sex-change operation, I’d be covered regardless of pre-existing conditions.”

Yes, that’s right: the oppressive, thoughtless Obamacare rules require everyone to be covered even if they have such weirdo unlikely conditions as … cancer? As if!

What Gottlieb is discovering, belatedly, is how much it costs to buy real health insurance rather than fake health insurance. Cancer—this should be needless to say, yet it evidently is not—is a definitive example of why health insurance exists. The disease can strike, without warning, at any stage of life. Nobody sets aside money in the household budget as savings in case they might get cancer.

[…]

Why, the complainers ask, should the young and healthy be forced to pay for the health care of the old and sick? It might be the single dumbest argument about health insurance. This isn’t even the usual greedy antisocial libertarian line of complaint—well, I don’t have a kid, so why should my taxes pay for schools? There’s no need to invoke social unity or the common good: Young, healthy people are not a separate population from the old and unhealthy. They are the very same people, only at a different stage of life.

And cancer treatment and gender-reassignment surgery aren’t the only medical options that Gottlieb wants the freedom to decline. Another thing that’s driving up the price of her new Obamacare-mandated policy, she writes, is maternity care. “(Handy for a 46-year-old),” she sniffs.

Age is only part of the reason Gottlieb isn’t interested in paying for maternity coverage. The other part is that she has already had a baby. Until recently, she was enrolled in a plan that did provide maternity coverage, which allowed her to get other people—people who were paying higher premiums for the option of having a child, but who were not yet going through the expense of pregnancy and childbirth—to subsidize her own pregnancy and childbirth.

So once she’d collected the benefit, it was time to unload the costs onto the other suckers and get a new policy…

TrumpCare has a chance of passing because too many people think this way, even if “why would I care if insurance policies cover mammograms?” is more specifically Republican male.

Counterpoint: Should Dems KEEP THEIR POWDER DRY In Exchange For An Option To Buy Oceanfront Property in Louisville?

[ 91 ] March 23, 2017 |

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The crack Washington Post editorial staff has thoughts about what the Democrats should do about the Gorsuch nomination. After conceding that McConnell wouldn’t even give Garland a hearing, their bottom line is like David Broder lives:

The resulting standoff could end in three ways. First, a cloture vote could attract sufficient Democratic votes to reach the 60-vote threshold to stop a filibuster, which is unlikely. Second, Mr. McConnell could move to eliminate the filibuster on Supreme Court nominees, which would be deeply unwise and injure both parties in the long term. Third, the parties could strike a deal that would preserve the filibuster for the minority party in the case of future nominees while providing for an up-or-down vote on Mr. Gorsuch’s confirmation. That, not deepening the politicization of the judiciary, is the best path forward.

I see. So the Dems could agree to theoretically preserve the filibuster for Republicans to blow up later, in exchange for Republicans getting what they want now. This would prevent the “politicization of the judiciary.” Remember the Gang of 14? This would work equally well.

Needless to say, the judiciary is not “politicized” when a president rejected by a majority of the public nominates someone who takes immense self-satisfaction from using the logic of a mediocre junior high school debater to hold in favor of a company who fired a truck driver for not waiting to freeze to death because after all if the company offers you a choice to freeze to death you still have been offered a choice, this does not in any way “politicize the judiciary.” After all, he went to Harvard Law!

Dems Will Filibuster Gorsuch

[ 80 ] March 23, 2017 |

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Good:

As the Senate Judiciary Committee was hearing from witnesses for and against Judge Neil Gorsuch, his Supreme Court nomination was delivered a critical blow: Senate Minority Leader Charles E. Schumer (D-N.Y.) said he would join with other Democrats in filibustering Gorsuch — a move that would require at least 60 senators to vote to end debate on the nomination.

Republicans have vowed to change Senate procedures if Democrats do so to quickly confirm Gorsuch — but Schumer suggested they should focus instead on Trump’s nominee.

“If this nominee cannot earn 60 votes — a bar met by each of President Obama’s nominees, and George Bush’s last two nominees — the answer isn’t to change the rules. It’s to change the nominee,” he said.

Gorsuch “was unable to sufficiently convince me that he’d be an independent check” on Trump, Schumer said in a Senate floor speech.

Gorsuch is “not a neutral legal mind but someone with a deep-seated conservative ideology,” Schumer added. “He was groomed by the Federalist Society and has shown not one inch of difference between his views and theirs.”

#TeamSpine running tally here.

Will this stop Gorsuch? No. But it’s still unquestionably the right thing to do, and it an encouraging sign that Schumer could be a worthy heir to Reid.

Today in the NEW MCCARTHYSIM

[ 86 ] March 23, 2017 |

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I am deeply concerned that this will be a DISTRACTION from discussing the most important issue of out times, the fact that vanity awards given by Hollywood trade magazines are not awarded solely on merit:

The FBI has information that indicates associates of President Donald Trump communicated with suspected Russian operatives to possibly coordinate the release of information damaging to Hillary Clinton’s campaign, US officials told CNN.

This is partly what FBI Director James Comey was referring to when he made a bombshell announcement Monday before Congress that the FBI is investigating the Trump campaign’s ties to Russia, according to one source.
The FBI is now reviewing that information, which includes human intelligence, travel, business and phone records and accounts of in-person meetings, according to those U.S. officials. The information is raising the suspicions of FBI counterintelligence investigators that the coordination may have taken place, though officials cautioned that the information was not conclusive and that the investigation is ongoing.

In related news, Devin Nunes is a yutz.

Republicans Trying to Make TrumpCare Even More Reprehensible in Order to Pass It

[ 131 ] March 22, 2017 |

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The Freedom [sic to the power of 8 billion] Caucus is getting concessions that make already-disgusting legislation considerably worse:

Politico’s Josh Dawsey and Jennifer Haberkorn report that the White House is in negotiations with the House Freedom Caucus about getting the caucus’s hard-line conservative members to support the American Health Care Act, the Obamacare repeal package put forward by House Speaker Paul Ryan and backed by President Trump.

Key to the deal, they report, are changes to the law that would eliminate the Affordable Care Act’s “essential health benefits,” a list of 10 categories of procedure that all insurance plans offered to individuals or small businesses must cover. The 10 are, in the words of Healthcare.gov:

  • Outpatient care without a hospital admission, known as ambulatory patient services
  • Emergency services
  • Hospitalization
  • Pregnancy, maternity, and newborn care
  • Mental health and substance use disorder services, including counseling and psychotherapy
  • Prescription drugs
  • Rehabilitative and habilitative services and devices, which help people with injuries and disabilities to recover
  • Laboratory services
  • Preventive care, wellness services, and chronic disease management
  • Pediatric services, including oral and vision care for children

These provisions set a baseline, mandating that all offered plans meet a certain threshold. They can’t skimp out and not cover big things like emergency room visits or pregnancy or mental health. Particularly for previously undercovered areas like mental health and addiction services, which plans didn’t have to cover before the ACA, this provision was a huge deal.

As to the question of whether this could pass the Senate even thought these regulatory changes would seem to be inconsistent with the Byrd rule, well, a determined Senate majority can essentially do what ever it wants irrespective of internal procedural rules and norms. McConnell’s behavior so far would seem to suggest that said determined majority isn’t there, and it seems unlikely that an even wingnuttier and less popular bill would make things better. But it would be preferable if we didn’t have to find out.

Is the Kinderhook Kickback Constitutional?

[ 44 ] March 22, 2017 |

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A few people on Twitter have asked whether the provision secured by New York Republicans to end Medicaid reimbursements in New York for county expenditures outside of New York city is constitutional. The answer is that it’s very difficult to answer that question. I, personally, don’t see a serious constitutional issue but whether the Supreme Court would is a different question.

I can certainly see an argument that the Elmira Emolument* is inconsistent with the spending powers doctrine minted by John Roberts in Sebelius. The Watertown Wallet-Grab attempts to use Medicaid funds to force the state to change its policies concerning who is responsible for Medicaid spending. One could argue that this is an unconstitutional use of the spending power. But, of course, one could also argue that the Buffalo Bribe is more like the conditions placed on highway spending in South Dakota v. Dole, and does not rise to the level of being unconstitutionally “coercive.”

In other words, I can’t really answer the question of whether the Glens Falls Grift is unconstitutionally coercive because the Medicaid expansion holding Sebelius is ludicrously incoherent and unprincipled and offers no meaningful guidance to Congress. I would compare it to Potter Stewart’s legendary concurrence in Jacobelis except that the invocation of “hard-core pornography” gives Stewart’s standard more content than Roberts’s. The line between what is constitutionally and unconstitutionally “coercive” is completely unknowable. Well, not entirely — since this policy was passed by a Republican Congress is it overwhelmingly likely that the Republican Supreme Court will uphold it. But to paraphrase the Chief Justice, his opinion in Sebelius will have nothing to do with it. Hopefully the point will be moot.

*Although I like the various “kickback” metaphors, they’re actually far too kind to the New York Republicans, who didn’t exactly drive a hard bargain for what by all rights should be career-ending votes. I mean, say this for Ben Nelson — he tried to get more money for his state. At best, the Kinderhook Kickback would be neutral on net, and if Albany is forced to change its Medicaid disbursements because TrumpCare passes it’s entirely possible they would just put other mandates and/or reduce aid to the counties, making them no better off. Heckuva job!

Behold the Power of the BULLY PULPIT!

[ 172 ] March 22, 2017 |

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Oddly enough, Trump’s attempts to muscle Congress and sell TrumpCare to the public are not going terribly well:

Trump’s ownership of the bill is being widely praised by some Republicans. “He’s all in,” gushed Sen. Roger Wicker (R-Miss.). “It was the right thing for the president to take ownership of it,” enthused Rep. Patrick McHenry (R-N.C.). Meanwhile, other Republicans report that Trump has made an aggressive pitch to them for the bill, arguing that they will face a voter backlash in 2018 if they don’t deliver on their promise to repeal and replace the Affordable Care Act.

But NBC News reports that House Republicans are moving away from the bill:

Yesterday morning, we wrote that 17 House Republicans opposed or leaned strongly against the GOP health-care plan that’s scheduled for a vote Thursday. Then President Trump visited Capitol Hill and appeared to threaten GOP lawmakers …

After that visit, the number of Republicans opposing or leaning strongly against the legislation grew to 27, per NBC News’ count — when Trump and GOP leaders can’t afford more than 21 defections.

As the NBC First Read crew observes, it’s “clear that Trump’s arm-twisting hasn’t paid dividends — at least not yet.”

Meanwhile, a new Politico/Morning Consult poll finds that support for the bill has dropped six points among American voters nationwide, and more voters approve of Obamacare than of the GOP replacement:

Since the Congressional Budget Office released its cost estimate of the Obamacare alternative last week, showing steep coverage losses, the legislation’s approval rating has dipped six points, from 46 percent to 40 percent. Obamacare’s approval rating, on the other hand, sits at 46 percent, as it did in February.

Meanwhile, disapproval of the GOP bill has ticked up two points, for a total net swing against the bill of eight points. What’s more, the new Morning Consult poll shows that only 1 in 5 voters thinks it will decrease their health-care costs, while a plurality of 39 percent think they will increase.

I can imagine voting for this bill for ideological reasons. I can also imagine a House Republican voting for this under the assumption that it will die in the Senate. But any Republican who thinks that it’s better politically to pass this than not pass anything is a maroon. The less popular the bill becomes, the less chance it has of passing the Senate, where the odds are already long.

Still, though, Obama could totally have gotten a public option by threatening to primary senators who weren’t running for anything in states where he wasn’t popular.

McConnell Wants TrumpCare Killed Quickly

[ 122 ] March 22, 2017 |

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I’ve seen several people assume that if the House passes TrumpCare it will get through the Senate, because McConnell is promising to do so. Only McConnell is not saying that he has the votes, only that he wants TrumpCare off his calendar in a timely manner:

Trumpcare may or may not grind out enough votes to pass the House. In the Senate, it’s hopelessly short of the 50 votes it needs. Senate Majority Leader Mitch McConnell has laid out a wildly aggressive time frame, under which his chamber would essentially xerox the House bill and pass it into law within a few days — no hearings, no negotiations. A few weeks ago, I suggested the possibility that McConnell’s plan was not wildly aggressive but actually designed to fail. His latest comments make this scenario seem far more likely.

“We’re not slowing down,” McConnell told reporters Tuesday. “We will reach a conclusion on health care next week.” And while he is brimming with certainty about the speed of the process, he is hardly confident of its outcome: “We’ll either pass something that will achieve a goal that we’ve been working on,” he said. “Or not.”

The only possible way a health-care bill could pass the Senate would be a heroic feat of negotiation to bridge the chasm between Republicans who think the House bill provides too much care (Mike Lee, Rand Paul, Ted Cruz) and those who think it provides too little (a group numbering perhaps as many as a dozen, depending on how one interprets various fretting remarks). Republicans can lose no more than two votes in the upper chamber. What’s more, one of their senators, Georgia’s Johnny Isakson, is out indefinitely while recovering from back surgeries. Isakson’s absence in the short term cuts the GOP’s margin for error in half, which means — unless he rushes back faster than expected — a vote next week is all the more hopeless.

If McConnell has concluded that there’s no way he can get 50 votes for anything the House passes — and I haven’t seen any whip count suggesting that they’re even particularly close to 50 — all failing to “conclude” the process means is that it will drag on for a long time and still fail. And having TrumpCare linger will get in the way of voting on Gorsuch an tax cuts, which are almost certainly much higher priorities for McConnell than health care anyway.

Anyway, if McConnell starts saying he has the votes, be very worried. If he keeps saying he will “conclude” the process one way or another quickly, he wants TrumpCare dead and is telling the House to forget health care and get to work on a stand-alone upper-class tax cut.

TrumpCare Is Class Warfare

[ 68 ] March 22, 2017 |

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Some House wingers have their price for voting for what would already be one of the worst statutes ever passed by the United States Congress, and the price is making it even worse:

The “manager’s amendment” changing the legislation, which is set to be released Monday night by House leaders and expected to be adopted through a House Rules Committee vote before the full House votes on Thursday, includes new provisions cracking down on Medicaid beneficiaries. The changes would allow states to impose work requirements on able-bodied childless adults getting Medicaid, and to receive funding in a “block grant” that doesn’t rise at all with enrollment, which would likely amount to a still-larger cut.

The amendment would also eliminate federal funding for Medicaid beneficiaries making over 133 percent of the poverty line — a cut that would hurt states like New York that have generous Medicaid programs. And it would cut off states’ ability to join the Medicaid expansion immediately, before phasing out the expansion for states that joined before March 1 of this year.

The measures were reportedly adopted to win over House conservatives, like Republican Study Committee’s leader Rep. Mark Walker (R-NC), who vocally opposed the bill at first. Walker is now on board with the plan after securing the Medicaid changes. “The president asked us specifically: Would we support him on this American Health Care Act [with the increased Medicaid restrictions],” Walker told the Washington Post’s Mike DeBonis. “We all agreed, to a man.”

The original legislation was already a historic cut to aid for the poor. “No legislation enacted in recent decades cut low-income programs this much — or even comes close,” the Center on Budget and Policy Priorities’ Robert Greenstein told me when the CBO’s score was released. But the two new provisions — allowing work requirements and enabling states to take a block grant — are both major changes that will diminish access to Medicaid even further. They make a bill that already represented a historic cut to the health care safety net for poor Americans even more harmful.

The fact that the fate of the ACA may well rest on members of Congress who think TrumpCare is still insufficiently cruel to the poor is not terribly reassuring.

Will Donald Trump be a GAME-CHANGER Who Can BULLY PULPIT the OVERTON WINDOW?

[ 68 ] March 21, 2017 |

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I see Donald Trump is trying the same tactics people that some people are convinced would have led to a much better ACA but Obama Didn’t. Even. Try:

President Trump stormed Capitol Hill on Tuesday to sell the House Republican leadership’s plan to overhaul the health-care system, warning his party that not passing the legislation would yield a political crisis and sweeping electoral defeats.

The president addressed a closed-door meeting of House Republicans days before the measure is expected to come to a vote on the House floor.

Trump used both charm and admonishment as he made his case, reassuring skittish members that they would gain seats in Congress if the bill passed — and singling out Rep. Mark Meadows (R-N.C.), the chairman of the hard-line House Freedom Caucus, in front of colleagues.

“I’m gonna come after you, but I know I won’t have to, because I know you’ll vote ‘yes,’ ” Trump said, according to several Republican lawmakers who attended the meeting. “Honestly, a loss is not acceptable, folks.”

And you have to admit his political analysis is pretty shrewd:

“If we get this done, and tax reform, he believes we pick up 10 seats in the Senate and we add to our majority in the House,” said Rep. Chris Collins (R-N.Y.), the first member of Congress who endorsed Trump’s presidential bid. “If we don’t get it done, we lose the House and the Senate.”

Sure, seems plausible that passing a massively unpopular bill will be worth +10 in the Senate for the in party.

Anyway, I think Sean McElwee has the basic dynamic exactly right:

If the Freedom Caucus kills TrumpCare by voting no and attacking it from the right, it will hurt Trump and Ryan much more than it hurts them. I don’t think there’s much leverage to be used against them if they’re determined to stop the bill; the question is how determined they are.

Ryan’s best chance of passing a bill would be to make it even more wingutty and drop it on the Senate’s lap and let them kill it. But Ryan and Trump want something that can actually pass the Senate for a variety of reasons but most importantly because they’d prefer that the next round of upper-class tax cuts be permanent rather than having to sunset. But getting the House to pass anything that would have a chance in the Senate will not be easy, and hopefully it will fail.

Of course, we also have to hope that Donald Trump doesn’t try writing down the names of marginal House votes on index cards, because then we’d be totally doomed.

Today In For-Profit Law School Grifting

[ 3 ] March 21, 2017 |

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If I might be forgiven for violating the biblical proscription of horning in on thy co-blogger’s racket, Elie Mystal has a good story about colleges partnering with diploma mill law schools at the expense of their students:

This month, Bethune-Cookman, a historically black university in Daytona Beach, Fla., announced an “affiliation” deal with Arizona Summit Law School, a for-profit institution in Phoenix. A joint scholarship program will send Bethune-Cookman students and students from other historically black colleges to the law school. Other programs, including intensive LSAT prep classes, have been announced as part of the deal.

Bethune-Cookman doesn’t have a law school, so it makes sense that it would want to partner with an accredited institution. But there’s a problem: Arizona Summit, formerly known as the Phoenix School of Law, may be accredited, but only 25 percent of its graduates passed the Arizona bar exam on their first try last year.

That’s an embarrassing result for any school. To compare, the law school at Arizona State posted a 77 percent pass rate for first-time test takers of the same bar. Statewide, 64 percent of first-time test takers passed. In other words, Arizona Summit’s results weren’t even in the ballpark of respectability.

Arizona Summit can’t blame the aptitude of its students for its low bar passage rate. The median LSAT score at Arizona Summit is 143, which is on the low end, but about the same as the median score at Florida A&M University College of Law. Still, over half of Florida A&M law school graduates passed the Florida bar last summer. And Florida A&M charges about $14,000 in yearly in-state tuition, a fraction of the cost of Arizona Summit, which charges about $45,000 in tuition and fees per year. That doesn’t include the cost for Bethune-Cookman students to move from Florida to Phoenix.

Of course, as Diamond Steve Diamond has observed, if you oppose this rank exploitation of predominantly African-American students it’s because of your desire to restore Jim Crow.

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