A Rebuttal to George Will — And a Template for Congressional Republicans

Last week venerable conservative columnist George Will called for voting against Republicans this November to rebuke President Trump, provoking no small amount of commentary. Some focused on dissecting the flaws in his theory—it would create bad policy outcomes, particularly on judges (a point Will conceded), and could make the Republican Party even more dependent upon Trump and his acolytes.

Into this debate unwittingly stepped Politico earlier this week, with a profile of Pennsylvania’s junior senator, Republican Pat Toomey. Having just won re-election to a six-year term, Toomey faces three big political advantages: First, he will not have to face an anti-Trump wave this year. Second, he will not share the ballot with Trump in two years. Third, he won his 2016 re-election by nearly twice as many votes as Trump did. The way he opposed Trump’s trade policies provides a useful template for others within his party to dissent from the chief executive.

1. Pick Something Important

First, speak out on an issue you care about—one of significant national import. Toomey believes that a trade war President Trump’s tariffs prompted could spark a major economic downturn, and undo the effects of the tax legislation passed late last year. He notes that the tariffs, along with the threats of more to come, are “already doing real damage,” such as this week’s news about Harley-Davidson moving some manufacturing overseas.

Politico notes that Toomey’s newfound role as “Trump’s sharpest antagonist on trade policy” stems from “his passion on economic issues,” a passion I know well. I still remember absorbing the arguments he made in drafts of his book: If foreign countries want to invest in the United States—and bring down the cost of goods Americans consume in the process—why should politicians enact arbitrary obstacles to that growth?

That argument holds little weight with Trump, who generally sees conflict in zero-sum terms—a trade deficit with another country must mean America has lost to someone, somehow. But it’s already resonating with some Harley owners.

2. Mind the Separation of Powers

Second, remember the important role that separation of powers plays. Will’s column harrumphed at Congress’ supine status, stating that a Republican congressional minority “will be stripped of the Constitution’s Article I powers that they have been too invertebrate to use against the current wielder of Article II powers.” He cites Madison in Federalist 51: “Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.”

Into that breach stepped Toomey on trade. He has given floor speeches rightly pointing out that he and his colleagues “are not potted plants.” In an interview with Politico, he asserted the institutional prerogatives that Will thought Republicans had heretofore forgotten: “The Constitution is completely unambiguous….It is the authority of Congress to establish tariffs….We’ve given him [i.e., the President] a lot of authority, and I think that is authority that should reside with Congress.”

3. Disagree Politely

Third, agree to disagree agreeably. Toomey does not understate the impact of Trump’s policies on trade: “We’ve crossed the Rubicon,” he notes. But in Politico’s words, he disagrees “politely but pointedly.” No calls for public heckling of cabinet officials, in the vein of Rep. Maxine Waters (D-CA). No intemperate tweets, either.

On both the policy of free trade and the necessity of the legislative branch standing firm in its beliefs, Will agrees with Toomey. His column last week highlighted the thwarted efforts of Sen. Bob Corker (R-TN), Toomey’s partner, in their joint effort to prevent presidents from using national security reasons to impose tariffs unilaterally. Rather than focusing on the unsuccessful efforts of a senator departing Congress this fall, Will might do well to bolster the efforts of an earnest senator who will remain for four years more—and cultivate more like him.

I sympathize with Will’s plight about elections presenting bad, or at minimum sub-optimal, choices. During most of last year, when Republicans debated health care, many lawmakers focused more on the political goal of finding a bill that could garner enough votes to pass rather than achieving positive policy outcomes—lowering premiums, promoting health care freedom, and so on. Viewed through this prism, the midterm elections might appear a choice between a Republican Party with few coherent or decipherable principles and a Democratic Party fully embracing the wrong ones.

But an exemplar like Toomey, and the wisdom of scripture, suggest another possible outcome. In Genesis, God told Lot he would spare Sodom’s destruction to save ten righteous people in the city. Rather than waiting for electoral fire and brimstone to rain down on the licentious or sycophantic elements of the GOP in November, perhaps Will would do well to focus on highlighting the lawmakers like Toomey—Utah’s Sen. Mike Lee presents another obvious example—worth saving.

This post was originally published at The Federalist.

New Precedent Allows Congress to Dismantle (Some of) Obamacare

What does a ruling about automobile financing have to do with Obamacare? As it turns out, plenty.

This week the Senate acted to repeal a piece of regulatory guidance the Consumer Financial Protection Bureau (CFPB) issued back in March 2013. As a Politico report Wednesday noted, that precedent allows Congress to nullify other regulatory actions the federal government took years ago—including those on Obamacare.

1996 Law Allows for Expedited Process

Until this week, Congress has generally enacted CRA resolutions of disapproval following a change in administration, when one party controlled both houses of Congress and the presidency. In 2001, Republicans passed, and President George W. Bush signed, a resolution of disapproval negating an ergonomics rule promulgated in the waning days of the Clinton administration. Last year, the Republican Congress passed and President Trump signed 14 resolutions of disapproval undoing Obama administration actions.

Action on CRA resolutions of disapproval undoing Obama administration actions had largely ended last year. The CRA provides that Congress can consider resolutions of disapproval under expedited procedures only within 60 legislative days of the rule’s “submission or publication date.” Because the Obama administration’s final regulatory actions occurred early in 2017, the 60 legislative-day clock ran out last year—or so it appeared.

However, as the Heritage Foundation’s Paul Larkin has argued for many years, the CRA contains a big catch. According to the law, the expedited procedures apply for the 60 legislative days following “the later of the date on which” Congress receives a required report on the regulatory action, or the action is published in the Federal Register. If an administration never officially submitted a report to Congress, the 60 legislative-day clock never began, and the current Congress can still pass a resolution of disapproval under the CRA-expedited procedures.

Because the Obama administration did not consider the CFPB document a “rule,” it never submitted it to Congress, as required by the CRA. The 60 legislative-day clock never expired, because the Obama administration never started it by submitting the document to Congress. That meant the Senate could, and did, pass a resolution of disapproval negating the CFPB guidance this week, more than five years after CFPB first issued it.

Now Congress can do the same thing regarding Obamacare.

This Opens Lots of Doors for Obamacare Regs

To be sure, Congress cannot pass resolutions of disapproval regarding Obamacare rules that the Obama administration officially submitted years ago, which is most of them. But in some cases, the last administration may not have formally submitted sub-regulatory guidance, giving Congress an opening to repeal at least part of Obamacare’s regulatory structure.

I wrote early last year that the Trump administration should unilaterally revoke that guidance, but unfortunately, it has not done so yet. However, if the Obama administration never submitted that guidance to Congress, then Congress—using the precedent set this week—can pass a resolution of disapproval negating it. Alternatively, Congress can consider starting action on a resolution of disapproval, to get the Trump administration off the proverbial dime in revoking the guidance themselves.

The CRA precedent set this week also serves as a cautionary tale for the Trump administration, a warning to act thoroughly with its own regulatory actions. For instance, the guidance to state Medicaid programs issued earlier this year regarding work requirements likely meets the definition of a “rule” for CRA purposes. If the Trump administration never submits that action to Congress, a future Democratic administration and Democratic Congress could—and if given the chance, certainly would—act to undo the guidance, and thus the Medicaid work requirements.

But even as the Trump administration should act to cement its own regulatory legacy, Congress can act to negate portions of Obamacare through resolutions of disapproval. I know from experience that staff in Congress, and during the transition, compiled lists of rules that they can use CRA to target. During my time on Capitol Hill following Obamacare’s passage, staff kept a spreadsheet containing all the rules and notices the law generated—the source of the “Red Tape Tower” that used to appear around the Capitol.

This post was originally published at The Federalist.