Inside the Federal Government’s Health IT Fiasco

Recent surveys of doctors show a sharp rise in frustrated physicians. One study last year analyzed a nearly 10 percentage point increase in burnout from 2011 to 2014, and laid much of the blame for the increase on a single culprit: Electronic health records. Physicians now spend more time staring at computer screens than connecting with patients, and find the drudgery soul-crushing.

What prompted the rise in screen fatigue and physician burnout? Why, government, of course. A recent Fortune magazine expose, titled “Death by 1,000 Clicks,” analyzed the history behind federal involvement in electronic records. The article reveals how electronic health records not only have not met their promise, but have led to numerous unintended and harmful consequences for American’s physicians, and the whole health care market.

Electronic Bridge to Nowhere

The Fortune story details all the ways health information technology doesn’t work:

  • Error-prone and glitch-laden systems;
  • Impromptu work-arounds created by individual physicians and hospitals make it tough to compare systems to each other;
  • An inability for one hospital’s system to interact with another’s—let alone deliver data and records directly to patients; and
  • A morass of information, presented in a non-user-friendly format, that users cannot easily access—potentially increasing errors.

The data behind the EHR debacle illustrate the problem vividly. Physicians spend nearly six hours per day on EHRs, compared to just over five hours of direct time with patients. A study concluding that emergency room physicians average 4,000 mouse clicks per shift, a number that virtually guarantees doctors will make data errors. Thousands of documented medication errors caused by EHRs, and at least one hundred deaths (likely more) from “alert fatigue” caused by electronic systems’ constant warnings.

Other anecdotes prove almost absurdly hysterical. The EHR that presents emergency room physicians 86 separate options to order Tylenol. The parody Twitter account that plays an EHR come to life: “I once saw a doctor make eye contact with a patient. This horror must stop.” The EHR system that warns physicians ordering painkillers for female patients about the dangers of prescribing ibuprofen to women while pregnant—even if the patient is 80 years old.

What caused all this chaos in the American health care market? One doctor explained his theory: “I have an iPhone and a computer and they work the way they’re supposed to work, and then we’re given these incredibly cumbersome and error-prone tools. This is something the government mandated” (emphasis added). Therein lies the problem.

Obama’s ‘Stimulus’ Spending Spree

In June 2011, when talking about infrastructure projects included in the 2009 “stimulus” legislation, President Obama famously admitted that “shovel-ready was not as shovel-ready as we expected.” Electronic health records, another concept included in the “stimulus,” ran into a very similar problem. Farzad Mostashari, who worked on health IT for the Obama administration from 2009-11, admitted to Fortune that creating a useful national records system was “utterly infeasible to get to in a short time frame.”

At the time, however, the Obama administration billeted electronic health records as the “magic bullet” that would practically eliminate medical errors, while also reducing health costs. Every government agency had its own “wish list” of things to include in EHR systems. Mostashari admitted this dynamic led to the typical bureaucratic problem of trying to do too much, too fast: “We had all the right ideas that were discussed and hashed out by the committee, but they were all of the right ideas” (emphasis original).

Meanwhile, records vendors saw dollar signs, and leapt at the business opportunity. As Fortune notes, many systems weren’t ready for prime time, but vendors didn’t focus on solving those types of inconsequential details:

[The] vendor community, then a scrappy $2 billion industry, griped at the litany of requirements but stood to gain so much from the government’s $36 billion injection that it jumped in line. As Rusty Frantz, CEO of EHR vendor NextGen Healthcare, put it: ‘The industry was like, ‘I’ve got this check dangling in front of me, and I have to check these boxes to get there, and so I’m going to do that.’’

The end result: Hospitals and doctors spent billions of dollars—because the government paid them to do so, and threatened to reduce their Medicare and Medicaid payments if they didn’t—to buy records systems that didn’t work well. These providers then became stuck with the systems once they purchased them, because of the systems’ cost, and because providers could not easily switch from one system to another.

David Blumenthal, who served as national coordinator for health IT under Obama, summed up the debacle accurately when he admitted that electronic health records “have not fulfilled their potential. I think few would argue they have.”

Electronic health records therefore provide an illustrative cautionary tale in which a government-imposed scheme spends billions of dollars but fails to live up to its hype, and alienates physicians and providers in the process. When the same thing happens under Democrats’ next proposed big-government health scheme—whether single payer, or some “moderate compromise” that only takes away half of Americans’ existing health coverage—don’t say you weren’t warned.

This post was originally published at The Federalist.

Democrats’ Single-Payer Health Care Bill Raises Serious Questions

On Tuesday, the House’s Democratic majority will hold its first formal proceedings on single payer legislation. The House Rules Committee hearing will give supporters an opportunity to move past simplistic rhetoric and answer specific questions about H.R. 1384, the House single payer bill, such as:

Section 102(a) makes “every individual who is a resident of the United States” eligible for benefits, regardless of their citizenship status. But in September 1993, Hillary Clinton testified before Congress that she opposed “extend[ing]” benefits to “those who are undocumented workers and illegal aliens,” because “too many people come [to the United States] for medical care as it is.” Do you agree with Secretary Clinton that single payer will encourage “illegal aliens” to immigrate to the United States for “free” health care?

Section 102(b) prevents individuals from traveling to the United States “for the sole purpose of obtaining” benefits. Does this provision mean that foreign nationals can receive taxpayer-funded health care so long as they state at least one other purpose—for instance, visiting a tourist site or two—for their travels?

Section 104(a) prohibits any participating provider from “den[ying] the benefits of the program” to any individual for any of a series of reasons, including “termination of pregnancy.” What if the nation’s more than 600 Catholic hospitals—which collectively treat more than one in seven American patients—refuse to join the government program because this anti-conscience provision forces them to perform abortions and other procedures in violation of their deeply-held religious beliefs? How will the government program make up for this lost capacity in the health care system?

Section 201(a) requires the Secretary of Health and Human Services (HHS) to compile a list of “medically necessary or appropriate” services that the single payer program will cover. Does anything in the bill prohibit the Secretary from including euthanasia—now legal in at least eight states—on that list of covered benefits?

Section 401(b) requires HHS to compile an “adequate national database,” which among other things must include information on employees’ hours, wages, and job titles. Will America’s millions of health care workers appreciate having the federal government track their jobs and income? Why does the bill contain not a word about employees’ privacy in this “adequate national database?”

Section 611 creates a system of global budgets to fund hospitals’ entire operating costs through one quarterly payment. But what if this lump-sum proves insufficient? Will hospitals have to curtail operations at the end of each quarter if they exceed the budget government bureaucrats provide to them?

Section 614(b)(2) prohibits payments to providers from being used for any profit or net revenue, essentially forcing for-profit hospital, nursing home, hospice, and other providers to convert to not-for-profit status. Coming on top of the bill’s virtual abolition of private insurers, how much will this collective destruction of shareholder value hurt average Americans’ 401(k) balances?

Section 614(c)(4) prohibits hospital providers from using federal operating funds to finance “a capital project funded by charitable donations” without prior approval. Does this restriction—preventing hospitals from opening new wings funded by private dollars—demonstrate how single payer will ration access to care, by limiting the available supply?

Section 614(f) bars HHS from “utiliz[ing] any quality metrics or standards for the purposes of establishing provider payment methodologies.” Does this prohibition on tying any provider payments to quality metrics serve as confirmation of the low-quality care a single payer system will give to patients?

Section 616 states that, if drug and device manufacturers will not agree to an “appropriate” price for their products—as defined by the government, of course—the HHS Secretary will license their patents away to other companies. But the average pharmaceutical costs approximately $2.6 billion to bring to market. How many fewer drugs will come to market in the future due to this arbitrary restriction on innovation?

Section 701(b)(2)(B) sets future years’ appropriations for the program based in part on “other factors determined appropriate by the [HHS] Secretary.” But this month, Nancy Pelosi filed suit against President Trump’s border emergency declaration, after she claimed that the declaration “undermines the separation of powers and Congress’s [sic] power of the purse.” How does allowing an unelected executive branch official to determine trillions of dollars in appropriations uphold Congress’ “power of the purse?”

Section 901(a)(1)(A) states that “no benefits shall be available under Title XVIII of the Social Security Act”—i.e., Medicare—two years after enactment. How does abolishing the current Medicare program square with the bill’s supposed title of “Medicare for All?”

If single payer supporters can answer all these queries at Tuesday’s hearing, many observers will only have one other question: Why anyone thought the legislation a good idea to begin with.

This post was originally published at Fox News.

Medicare Trustees Report Exposes Sanders’ Socialist Delusions

Many of the left’s policy proposals come with the same design flaw: While sounding great on paper, they have little chance of working in practice. Monday brought one such type of reality check to Sen. Bernie Sanders (I-VT) and supporters of single-payer health care, in the form of the annual Medicare trustees report.

The report once again demonstrates Medicare’s shaky financial standing, as the retirement of 10,000 Baby Boomers every day continues to tax the program’s limited resources. So why would Sanders and Democrats raid this precariously funded program to finance their government takeover of health care?

Medicare’s Ruinous Finances

Before even dissecting the report itself, one major caveat worth noting: The trustees report assumes that many of the Medicare payment reductions, and tax increases, included in Obamacare can be used “both” to “save Medicare” and fund Obamacare. In practice, however, sheer common sense suggests the impossibility of this scenario—as not even the federal government can spend the same dollars twice.

The last trustees report prior to these Obamacare gimmicks, in 2009, predicted that the Medicare Part A (Hospital Insurance) Trust Fund would become insolvent in 2017—two years ago. To put it another way, under a more accurate accounting mechanism, Medicare has already become functionally insolvent. Obamacare’s accounting gimmicks just allowed politicians (including President Trump) to continue to ignore Medicare’s funding shortfalls, thus making them worse by failing to act.

Even despite the double-counting created by Obamacare, the Part A Trust Fund faces significant obstacles. Monday’s report reveals that the trust fund suffered a $1.6 billion loss in 2018. This loss comes on the heels of a total of $132.2 billion in trust fund deficits from 2008 through 2015, as payroll tax revenues dropped dramatically during the Great Recession.

Worse yet, the trustees report that trust fund deficits will continue forever. Deficits will continue to rise, and by 2026—within the decade—the Trust Fund will become insolvent, and unable to pay all of its bills.

Replacing One Decrepit Program with an Even Worse One

In 2003, House conservatives included this mechanism in the Medicare Modernization Act, which requires the trustees to make an annual assessment of the program’s funding. If general revenues—as opposed to the payroll tax revenues that largely cover the costs of the Part A program—are projected to exceed 45 percent of total program outlays, this provision seeks to prompt a debate about Medicare’s long-term funding.

Compare this provision, which triggers whenever general revenues (i.e., those not specifically dedicated to Medicare) approach half of total program spending, with single payer. As these pages have previously noted, here’s what Section 701(d) both the House and Senate single payer bills would do to Medicare:

(d) TRANSFER OF FUNDS.—Any amounts remaining in the Federal Hospital Insurance Trust Fund under section 1817 of the Social Security Act (42 U.S.C. 1395i) or the Federal Supplementary Medical Insurance Trust Fund under section 1841 of such Act (42 U.S.C. 1395t) after the payment of claims for items and services furnished under title XVIII of such Act have been completed, shall be transferred into the Universal Medicare Trust Fund under this section.

Both bills would liquidate both of the current Medicare trust funds—and abolish the current Medicare program—to pay for the new single-payer plan. But how do Democrats propose to pay for the rest of the estimated $32 trillion cost of their program? Sanders referenced a list of potential tax increases (not drafted as legislative language), but the House sponsors didn’t even bother to go that far.

This post was originally published at The Federalist.

How Robert Francis O’Rourke Sabotaged Obamacare

On Monday night, the Wall Street Journal reported that former U.S. representative Robert Francis O’Rourke had underpaid his taxes for 2013 and 2014. When O’Rourke released his tax returns Monday night, the Journal contacted an accountant, who noticed the error:

O’Rourke and his wife, Amy, appear to have underpaid their 2013 and 2014 taxes by more than $4,000 combined because of an error in the way they reported their medical expenses, according to tax returns the couple released Monday evening.

They took deductions for those costs without regard to the limit that only allowed that break for medical and dental expenses above 10% of income for people their age. Had they not taken the nearly $16,000 in medical deductions, their taxable income would have been higher.

But why did they over-report their medical expense deduction? If you’re curious, go and fetch a copy of the Consolidated Print of the Patient Protection and Affordable Care Act. Why, lookie what we have here:

SEC. 9013. MODIFICATION OF ITEMIZED DEDUCTION FOR MEDICAL EXPENSES.

(a) IN GENERAL.—Subsection (a) of section 213 of the Internal Revenue Code of 1986 is amended by striking ‘7.5 percent’ and inserting ‘10 percent’.

(b) TEMPORARY WAIVER OF INCREASE FOR CERTAIN SENIORS.— Section 213 of the Internal Revenue Code of 1986 is amended by adding at the end the following new subsection:

‘(f) SPECIAL RULE FOR 2013, 2014, 2015, AND 2016.—In the case of any taxable year beginning after December 31, 2012, and ending before January 1, 2017, subsection (a) shall be applied with respect to a taxpayer by substituting ‘7.5 percent’ for ‘10 percent’ if such taxpayer or such taxpayer’s spouse has attained age 65 be- fore the close of such taxable year.’

However, seniors could report at the lower 7.5 percent level for 2013 through 2016. In 2013 and 2014, Robert Francis reported at the lower 7.5 percent level, even though he and his wife aren’t seniors. Oops.

Several things come to mind upon reading this news, the first being one word: SABOTAGE. Democrats frequently like to claim that the Trump administration is “sabotaging” Obamacare. But by failing to pay an Obamacare-related tax increase, Robert Francis quite literally did just that—he sabotaged the law, failing to fund its entitlements by failing to pay his newly increased tax bill.

Second, did Robert Francis ever bother to READ Obamacare? Sure, he wasn’t a congressman when the bill passed, because he wasn’t a congressman for long, but one would think a member of Congress would bother to educate himself about such an important, and visible, piece of legislation. I talked several times with my mother, a senior who uses the medical expense deduction, about the import of this provision on her taxes. But then again, I actually bothered to read the bill.

More to the point, this episode once again reveals how Democrats want to bequeath to the nation laws that they do not understand. Recall that Max Baucus (D-MT), then the chairman of the Senate Finance Committee and a main author of Obamacare, said he didn’t need to bother reading the bill because he hired “experts” to do it for him. Except that one of those supposed “experts” admitted four years later that, on the law’s employer mandate, “we didn’t have a very good handle on how difficult operationalizing that provision would be at that time.” A government too big to manage—that’s liberals’ greatest legacy.

As James Madison reminded us in Federalist 51, “In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed, and in the next place oblige it to control itself.” Maybe Robert Francis should think about that the next time he’s out on the campaign trail—or writing that check for back taxes to the IRS.

This post was originally published at The Federalist.

Analyzing the Trump Administration’s Proposed Insurer Bailout

The more things change, the more they stay the same. On a Friday, the Trump administration issued a little-noticed three paragraph statement that used seemingly innocuous language to outline a forthcoming bailout of health insurers—this one designed to avoid political controversy prior to the president’s re-election campaign.

Republicans like Sen. Marco Rubio (R-FL) quite rightly criticized President Obama for wanting to bail out health insurers via a crony capitalist boondoggle. They should do the same now that Trump wants to waste billions more on a similar tactic that has all the stench of the typical Washington “Swamp.”

Explaining the President’s Drug Pricing Proposal

At present, drug manufacturers pay rebates to PBMs in exchange for preferred placement on an insurer’s pharmacy formulary. PBMs then share (most of) these rebates with insurers, who pass them on to beneficiaries. But historically, PBMs have passed those rebates on via lower premiums, rather than via lower drug prices to consumers.

For instance, Drug X may have a $100 list price (the “sticker” price that Manufacturer Y publicly advertises), but Manufacturer Y will pay a PBM a $60 rebate to get Drug X on the PBM’s formulary list. It sounds like a great deal, one in which patients get the drug for less than half price—except that’s not how it works at present.

Instead, the PBM uses the $60 rebate to lower premiums for everyone covered by Insurer A. And the patient’s cost-sharing is based on the list price (i.e., $100) rather than the lower price net of rebates (i.e., $40). This current policy hurts people whose insurance requires them to pay co-insurance, or who have yet to meet their annual deductible—because in both cases, their cost-sharing will be based on the (higher) list price.

The Policy and Political Problems

The administration’s proposed rule conceded that the proposed change could raise Medicare Part D premiums. The CMS Office of the Actuary estimated the rule would raise premiums anywhere from $3.20 to $5.64 per month. (Some administration officials have argued that premiums may stay flat, if greater pricing transparency prompts more competition among drug manufacturers.)

The rule presents intertwined practical and political problems. From a practical perspective, the administration wants the rule to take effect in 2020. But the comment period on the proposed rule just closed, and the review of those comments could last well beyond the June 3 date for plans to submit bids to offer Part D coverage next year.

The political implications seem obvious. The administration doesn’t want to anger seniors with Part D premium increases heading into the president’s re-election bid. And while the administration could have asked insurers to submit two sets of plan bids for 2020—one assuming the rebate rule goes into effect next year, and one assuming that it doesn’t—doing so would have made very explicit how much the change will raise premiums, handing Democrats a political cudgel on a hot-button issue.

Here Comes the Bailout

That dynamic led to the Friday announcement from CMS:

If there is a change in the safe harbor rules effective in 2020, CMS will conduct a demonstration that would test an efficient transition for beneficiaries and plans to such a change in the Part D program. The demonstration would consist of a modification to the Part D risk corridors for plans for which a bid is submitted. For CY2020, under the demonstration, the government would bear or retain 95% of the deviation between the target amount, as defined in section 1860D-15(e)(3)(B) of the Social Security Act (the Act) and the actual incurred costs, as defined in section 1860D-15(e)(1) of the Act, beyond the first 0.5%. Participation in the two-year demonstration would be voluntary and plans choosing to participate would do so for both years. Under the demonstration, further guidance regarding the application process would be provided at a later date.

To translate the jargon: Risk corridors are a program in which the federal government subsidizes insurers who incur large losses, and in exchange insurers agree to give back any large gains. I explained how they worked in the Obamacare context here. However, unlike Obamacare—which had a risk corridor program that lasted only from 2014-2016—Congress created a permanent risk corridor program for Medicare Part D.

It all sounds well and good—until you look more closely at the announcement. CMS says it will “bear or retain 95% of the deviation…beyond the first 0.5%.” That’s not a government agency sharing risk—that’s a government agency assuming virtually all of the risk associated with the higher premium costs due to the rebate rule. In other words, a bailout.

Déjà Vu All Over Again

The use of a supposed “demonstration project” to implement this bailout echoes back to the Obama administration. In November 2010, the Obama administration announced it would create a “demonstration project” regarding Medicare Advantage, and Republicans—rightfully—screamed bloody murder.

They had justifiable outrage, because the added spending from the project, which lasted from years 2012 through 2014, seemed purposefully designed to delay the effects of Obamacare’s cuts to Medicare Advantage. Put simply, the Obama administration didn’t want stories of angry seniors losing their coverage due to Obamacare during the president’s re-election campaign, so they used a “demonstration project” to buy everyone’s silence.

In response to requests from outraged Republicans, the Government Accountability Office (GAO) conducted multiple reviews of the Medicare Advantage “demonstration project.” Not only did GAO note that the $8 billion cost of the project “dwarfs all other Medicare demonstrations…in its estimated budgetary impact and is larger in size and scope than many of them,” it also questioned “the agency’s legal authority to undertake the demonstration.” In other words, the Obama administration did not just undertake a massive insurer bailout, it undertook an illegal one as well.

The current administration has yet to release official details about what it proposes to study in its “demonstration project,” but, in some respects, those details matter little. The real points of inquiry are as follows: Whether buying off insurance companies and seniors will aid Trump’s re-election; and whether any enterprising journalists, fiscal conservatives, or other good government types will catch on, and raise enough objections to nix the bailout.

Congress Should Stop the Insanity

On the latter count, Congress has multiple options open to it. It can obtain request audits and rulings from GAO regarding the legality of the “demonstration,” once those details become public. It can explore passing a resolution of disapproval under the Congressional Review Act, which would nullify Friday afternoon’s memo.

It can also use its appropriations power to defund the “demonstration project,” preventing the waste of taxpayer funds on slush funds and giveaways to insurers. Best of all, they can do all three.

Republicans objected to crony capitalism under Democrats—Rubio famously helped block a taxpayer bailout of Obamacare’s risk corridor program back in 2014. Here’s hoping they will do the same thing when it comes to the latest illegal insurer bailout proposed by CMS.

This post was originally published at The Federalist.

Single Payer Wouldn’t Make Health Care a “Right”

In talking about his single-payer bill, which he reintroduced in the Senate on Wednesday, Sen. Bernie Sanders often claims that “I want to end the international embarrassment of the United States of America being the only major country on earth that doesn’t guarantee health care to all people as a right and not a privilege.”

But his legislation would do no such thing. Understanding why demonstrates the inherent drawbacks of his government-centered approach to health policy.

In our own country, low reimbursement rates in many state Medicaid programs can make finding doctors difficult. One 2011 study found that two-thirds of specialist physicians would not accept Medicaid patients, whereas only 11 percent of patients with private insurance could not obtain appointments. Patients with Medicaid also had to wait an average of three weeks longer for an appointment for the few doctors who would see them.

Medicaid suffers from so many access problems that one former director of a state program called a Medicaid card a “hunting license,” because it “gave you a chance to go find a doctor.” That’s the only “guarantee” the Sanders bill actually provides—the guarantee you can try to go find care, not a guarantee you can receive it.

But “access to a waiting list is not access to care.” So ruled four Canadian justices in a landmark 2005 ruling, Chaoulli v. Quebec. In that case, Canada’s Supreme Court overturned Quebec’s ban on private health insurance, finding that it “interfere[d] with life and security,” because “the government is failing to deliver health care in a reasonable manner.”

Indeed, delays and long waits for care plague Canada’s single-payer health system. One study found that approximately 3 percent of the nation’s population remained on waiting lists for care in 2018. From physician referral to the start of treatment, waiting times averaged five months—double that for orthopedic surgery cases.

Government-run health care systems traditionally attempt to contain costs by limiting the available supply of care. Britain’s National Health Service (NHS) follows the same approach as Canada’s single payer system. So patients wait for care there, also.

Consider what happened just last year, when the winter flu outbreak created a national “crisis”: The NHS had to cancel tens of thousands of operations, emergency rooms resembled “Third World” conditions, and ambulances waited for hours to unload patients—because hospitals had no place to put them.

The language in Sanders’ legislation demonstrates how, instead of making health care a “right,” single payer would instead increase demand for care—demand the system could not fulfill. To add insult to injury, the Sanders bill would ban private health insurance—the same type of ban Canada’s Supreme Court struck down—here to the United States, giving patients little way out of a clogged government health system.

Promises aside, Sanders’ “guarantee” of coverage would quickly turn into a guarantee that patients would wait, and wait, for care. The American people deserve better.

This post was originally published at The Federalist.

Nancy Pelosi Violated Her Oath of Office

At their swearing in, members of Congress take an oath to “support and defend the Constitution of the United States.” Few members would openly admit to violating that oath. Nancy Pelosi just did.

In filing a lawsuit against Donald Trump’s border emergency late last week, the House speaker claimed that “the House will once again defend our democracy and our Constitution, this time in the courts.” But the facts demonstrate that the last time the House defended the Constitution in the courts, Pelosi actively worked to undermine that defense of constitutional principles.

Lawsuits, Then and Now

The complaint Pelosi filed last week claims that, in using the National Emergencies Act to redirect funds towards border security, President Trump violated both underlying statutes and Congress’ constitutional duty to appropriate funds. Unfortunately, however, as I pointed out at the time of the border declaration, it did not represent the first time the executive has violated both statutes and Congress’ appropriations power.

The text of Obamacare did not contain an appropriation for cost-sharing subsidies, which offset discounts on co-pays and deductibles provided to low-income individuals. The Obama administration requested funds for those subsidies, just as Trump requested funds for border security. In both cases, Congress turned down those requests—and in both cases, the executive concocted legal arguments to spend the funds anyway.

But when the House of Representatives sued in 2014 seeking to block President Obama’s unconstitutional appropriation of funds, did Pelosi—who claimed last week to “defend our democracy and our Constitution”—support the complaint? Quite the contrary. In fact, she filed two legal briefs in court objecting to the House’s suit, and claiming that Obamacare implied an appropriation for the cost-sharing subsidies.

Abrogating Congress’ Institutional Prerogatives

In a word, no. In the Obamacare lawsuit, she not only attacked House Republicans’ claims regarding the merits of their case, she attacked the House’s right to bring the claim against the executive in court.

When it comes to whether the House has suffered an injury allowing it to file suit, compare this language in the House’s lawsuit against Trump: “The House has been injured, and will continue to be injured, by defendants’ unlawful actions, which, among other things, usurp the House’s legislative authority,” with Pelosi’s claims in her brief regarding the Obamacare lawsuit:

Legislators’ allegations that a member of the executive branch has not complied with a statutory requirement do not establish the sort of “concrete and particularized” injury sufficient to satisfy Article III’s standing requirements….

[Permitting the House’s suit] would disturb long-settled and well-established practices by which the political branches mediate interpretive disputes about the meaning of federal law, and it would encourage political factions within Congress to advance political agendas by embroiling the courts in innumerable political disputes that are appropriately resolved using those long-established practices….Allowing suit in this case undermines, rather than advances, [Members’ institutional] interests—inevitably subjecting Congress to judicial second-guessing never contemplated by the Framers of the Constitution and compounding opportunities for legislative obstruction in ways that could greatly increase congressional dysfunction.

Also compare Pelosi’s language when talking about remedies available to the House with regards to Trump: “The House has no adequate or available administrative remedy, and/or any effort to obtain an administrative remedy would be futile,” with her claims that House Republicans had all sorts of options available to them to stop President Obama’s unconstitutional payments, short of going to court:

Concluding that there is standing in this case is…completely unnecessary given alternative and more appropriate tools available to legislators to object to executive branch actions that they view as inconsistent with governing law….

To start, legislators may always challenge executive action by enacting corrective legislation that either prohibits the disputed executive action or clarifies the limits or conditions on such action….Further, Congress has other means to challenge disputed interpretive policies, including many that do not require the concurrence of both houses. For example, Congress can hold oversight hearings, initiate legislative proceedings, engage in investigations, and, of course, appeal to the public.

Put Principle over Politics

I find Trump’s border security declaration troubling for the same reason I found the Obamacare payments troubling: they usurp Congress’ rightful constitutional authority. I took some solace in knowing that several congressional Republicans—not enough, but several—voted against the emergency declaration, while many others who voted with the president nevertheless expressed strong misgivings about the move, as well they should.

Compare that to congressional Democrats, not a single one of whom aired so much as a peep about Barack Obama “stealing from appropriated funds,” to use Pelosi’s own words regarding the Obamacare lawsuit. Would that more elected officials—both Republicans and Democrats—put constitutional first principles above partisan affiliations and political gain.

This post was originally published at The Federalist.