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[ 146 ] March 25, 2017 |


On Christmas eve 2009, the Senate voted to pass the Patient Protection and Affordable Care Act in what would be its final form, although nobody expected that at the time. Let me highlight some names on the yea side for you:

Max Baucus D Mont.
Evan Bayh D Ind.
Robert C. Byrd D W.Va
Kent Conrad D N.D.
Byron L. Dorgan D N.D.
Kay Hagan D N.C.
Tim Johnson D S.D.
Mary L. Landrieu D La.
Joseph I. Lieberman ID Conn.
Blanche Lincoln D Ark.
Claire McCaskill D Mo.
Ben Nelson D Neb.
Mark Pryor D Ark.
John D. Rockefeller IV D W.Va.
Jon Tester D Mont.
Jim Webb D Va.

It is ever more remarkable, in retrospect, that much of the discussion on the left following the passage of the ACA consisted of complaints about how Obama/Pelosi/Reid could “only” pass the ACA. This is, on one level, understandable, given that the ACA is unmistakably inferior to the baseline established by other liberal democracies. But this collection names should make clear than when evaluating the work of the Democratic leadership this baseline is irrelevant. The question is not why Obama/Pelosi/Reid couldn’t nationalize the American health insurance industry. The question is how they were able to get this rogue’s gallery — each and every one of whom had a veto — to agree to the most important progressive social welfare legislation passed since the Johnson administration. And note too that the only senator who is clearly more conservative than necessary to win election in the state is Holy Joe, who wasn’t the Democratic candidate but won because while the Democratic candidate would have been a better senator as a campaigner he made Martha Coakley look like FDR. (Webb is more conservative than you need to be elected statewide in Virginia now, but this was much less true in 2008.) The coalition that passed the ACA included three senators from the Dakotas, one each from Indiana and Arkansas, and two each from Montana and West Virginia. Glib “BE MORE LIBERAL!” exhortations don’t really help you to get liberal governing majorities in an institution that heavily favors conservative rural interests.

Comprehensive health care reform is brutally hard, as Truman and Johnson and Clinton can tell you. In addition getting the list of legislators above, the Democrats also needed to keep in the fold every liberal who was well aware that the ACA was substantially suboptimal. Senators like Bernie Sanders and Sherrod Brown deserve enormous credit for working to make the bill as it could be and then supporting it. The Republicans just completely failed with a more homogeneous coalition in the more top-down chamber. What the Democratic leadership pulled off in 2009 is remarkable, and we now know that it is an enduring accomplishment.



[ 195 ] March 24, 2017 |


He charmed. He threatened. He cajoled. It didn’t matter:

Trump fashioned himself as the master dealmaker. His senior aides described him as “an extremely good listener” and said his negotiating skills were the product of “total natural talent,” saying he could turn up the heat or the charm as needed.

But the negotiations over the bill’s substance took place mostly at the other end of Pennsylvania Avenue. Trump had amicable meetings with members of all stripes but found himself caught in the middle of factional House GOP dramas that have been simmering for years. As one member of the House Freedom Caucus described it: “We’re competing with Ryan. We like Trump.”


As the odds for success fluttered, Trump increasingly came to relish the fight, seeing the sprint for passage as a test of whether he could translate abilities from the boardroom to the Oval Office.

Among the lawmakers he courted most intensely was Rep. Mark Meadows (R-N.C.), the chairman of the House Freedom Caucus. Trump brought him to the Oval Office, called him regularly and directed White House chief strategist Stephen K. Bannon to call or text him daily. Last weekend, Meadows even journeyed to Mar-a-Lago, Trump’s private Florida club, to huddle with Bannon and other aides about the bill.

Meadows said his mantra in negotiating with Trump had been, “If this was about personalities, we’d already be at ‘yes.’ He’s charming, and anyone who spends time with him knows that. But this is about policy, and we’re not going to make it about anything else.”

For Meadows, a sticking point was essential health-benefit requirements under the current law for insurance companies, such as maternity and newborn care, and substance-abuse treatment, which he wanted removed and replaced with narrower rules.

Meadows and other Freedom Caucus members met with Trump and Pence at the White House on Thursday, but they left without a deal, even after Trump had worked with them for weeks — leaving Trump’s advisers exasperated with the ornery bloc.

It was not only the Freedom Caucus creating problems for Trump. A group of more moderate Republicans, known as the Tuesday Group, stood opposed to the bill, despite the president’s pleadings.

One such member, Rep. Leonard Lance (R-N.J.), attended meetings at the White House and praised Trump’s style, saying the president clearly “knows Jersey.” But, he added, the bill would harm his constituents who rely on Medicaid and there was nothing Trump could say to persuade him otherwise.

“He’s got this wit about him that I enjoy,” Lance said, “but I’m a ‘no’ vote.”

While there’s no reason to think that Trump is good at presidenting (or Ryan as good at legislating), and I’m as happy to make jokes about them as anyone, I see no reason to believe that this would have been any different with Rubio or Cruz or Jeb! in the White House. Both Republican factions have their own interests, the marginal votes weren’t there, that dat’s dat. Both sides liked Trump, and in the districts on the right margin Trump is popular. It just doesn’t matter. At bottom, presidents can’t get legislators to vote for stuff they really don’t want to vote for.

Since I’ve been often been critical of heighten-the-contradictions and all-or-nothing tactics, let me be clear that I strongly endorse such tactics when used by the right. I hope they’ll endorse more onanistic vanity voting too!

Will Sociopathic Clowns Be Able to Take Health Insurance From 24 Million People to Pay For Upper-Class Tax Cuts? An Open Thread

[ 151 ] March 24, 2017 |

ap_17075598434788“The leads are weak.” “Fuckin’ leads are weak? YOU’RE weak.”

The Upshot has an updated whip count. As of now, the state of play:

This isn’t to say that we should be too confident that it’s going down. The ACA looked dead many times. As a colleague observed, though, in American political history it’s much more common for comprehensive health care bills to look dead because they’re dead.

You Fucked Up — You Trusted Paul Ryan

[ 121 ] March 24, 2017 |


Trump is actually making an accurate political judgment here:

President Trump, the author of “The Art of the Deal,” has been projecting his usual bravado in public this week about the prospects of repealing the Affordable Care Act. Privately he is grappling with rare bouts of self-doubt.

Mr. Trump has told four people close to him that he regrets going along with Speaker Paul D. Ryan’s plan to push a health care overhaul before unveiling a tax cut proposal more politically palatable to Republicans.

He said ruefully this week that he should have done tax reform first when it became clear that the quick-hit health care victory he had hoped for was not going to materialize on Thursday, the seventh anniversary of the act’s passage, when the legislation was scheduled for a vote.

From Trump’s standpoint — that is, someone with little interest in public policy but very intense interest in his popularity — going along with Ryan’s preferred sequencing was obviously dumb. The correct approach would be to focus on white what unites the Republican conference — that is, upper-class tax cuts. So pass a round of upper-class tax cuts, and another round of tax cuts and breaks you can sell as an “infrastructure bill,” and then let Ryan and McConnell try to pass whatever wingnutty stuff they can. Ordinarily, agenda-setting is an area where the president has a lot of authority, but then most presidents have some idea what they’re doing and aren’t unfit for office on every level.

From Ryan’s perspective — that is, someone who really wants to slash federal spending on health care as much as possible and get tax cuts that are not only as large as possible but “permanent” — the sequencing made superficial sense. Early was the best shot at ACA repeal, and a lower tax revenue baseline would theoretically make it more a lot easier to pass a tax cut that doesn’t sunset. Having said that, even accepting his premises it was a dubious idea. Even if TrumpCare doesn’t pass he probably still won’t be able to pass a tax cut that doesn’t sunset because of the lack of Republican support for a large border-adjustment tax. And, in addition, there’s no such thing as a “permanent” tax cut, unless you think the Democratic Party will never take power in a decent economy again.

From Ryan’s own premises, if TrumpCare passes he will be “vindicated,” although the horrible effects the law would have on the country will likely make Trump a one-termer and could cost Ryan his majority as early as 2018. If it fails, the strategy was an unmitigated disaster for the party.

I Don’t See Any Method At All

[ 104 ] March 24, 2017 |


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.

Republican Health Care Policy in a Nutshell

[ 78 ] March 23, 2017 |


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?

[ 92 ] March 23, 2017 |


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

[ 84 ] March 23, 2017 |



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.


[ 86 ] March 23, 2017 |


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 |


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

  • 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 |


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 |


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.

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