What Mitch McConnell and Congressional Democrats Get Wrong about Entitlements

Sometimes, as parents often remind children in their youth, two wrongs don’t make a right. This held true on Tuesday, when Democrats erupted over comments by Senate Majority Leader Mitch McConnell (R-KY) on entitlement reform.

In returning to “Mediscare” tactics, Democrats made several false claims about entitlements. But so did McConnell, who blithely omitted what a Republican majority did earlier this year to worsen the country’s entitlement shortfall.

What McConnell Got Wrong

McConnell spoke accurately when he said in an interview that Medicare, Social Security, and Medicaid serve as the primary drivers of our long-term debt. He stood on less firm ground when he told Bloomberg that “the single biggest disappointment of my time in Congress has been our failure to address the entitlement issue.” Contra McConnell’s claim, Congress—a Republican Congress—actually did address the entitlement issue this year: they made the problem worse.

This Republican Congress repealed a cap on Medicare spending—the first such cap in that program’s history. It did so as part of a budget-busting fiscal agreement that increased the debt by hundreds of billions of dollars. It did so even though Republicans could have retained the cap on Medicare spending while repealing the unelected, unaccountable board that Democrats included in Obamacare to enforce that spending cap.

By and large, both parties have tried for years to avoid taking on entitlement reform. But Democrats included an actual cap on Medicare spending as part of Obamacare, and Republicans turned around and repealed it at their first possible opportunity. That makes entitlements not just a bipartisan problem—it makes them a Republican problem too.

What Democrats Got Wrong

But McConnell’s comments suggested just the opposite. He noted that, while entitlements serve as the prime driver of the nation’s long-term debt, any changes to those programs “may well be difficult if not impossible to achieve when you have unified government.” McConnell said the same thing in a separate interview with Reuters on Wednesday: “We all know that there will be no solution to that, short of some kind of bipartisan grand bargain that makes the very, very popular entitlement programs in a position to be sustained. That hasn’t happened since the ’80s.”

Even though Congress needs to start reforming entitlements sooner rather than later—even if that means one political party must take the lead—McConnell indicated he would do nothing of the sort. In fact, his comments implied that Congress would not do so unless and until Democrats agreed to entitlement reform, giving the party an effective veto over any changes. Yet Democrats, who never fail to demagogue an issue, attacked him for those comments anyway.

Actually, they haven’t “earned” those benefits. Seniors may have “paid into” the system during their working lives, but the average senior citizen receives far more in benefits than he or she paid in taxes, and the gap continues to grow.

Making a Tough Job Worse

In this case, two wrongs not only did not make a right, they made our country worse off. Like outgoing Speaker of the House Paul Ryan (R-WI), McConnell wishes to absolve himself of blame for the entitlement crisis, when he made the situation worse.

On the other side, Pelosi and her fellow Democrats continue the partisan demagoguery, perpetuating the myth that seniors have “earned” their benefits because they see political advantage in defending nearly infinite amounts of government subsidies to nearly infinite numbers of people. For all their love of attacking “science deniers,” much of the left’s politics requires denying math—that unsustainable trends can continue in perpetuity.

At some point, this absurd game will have to end. When it finally does, our country might not have any money left.

This post was originally published at The Federalist.

Rescissions Package Shows Washington’s Spending Problem

Talk about swampy: Republicans control the House, the Senate, and the White House, yet even token attempts to reduce spending cannot succeed.

Last week’s failure of a $15 billion package of rescissions (i.e., spending cuts) that the administration had proposed partly reflected the narrow Republican majority in the Senate. With Republicans’ one-vote margin, objections by Sens. Susan Collins (R-ME) and Richard Burr (R-NC) sank the measure in a 48-50 vote.

Health Care: Dems Demagogue, GOP Caves

Nearly half of the proposed savings, approximately $7 billion, in the rescissions package came from the State Children’s Health Insurance Program (SCHIP)—roughly $5.1 billion in unobligated balances, and $1.9 billion in child enrollment contingency funds for the current fiscal year that ends in September.

Liberals claimed the rescissions package would “gut” the contingency fund and “put the health of children at risk.” However, the Congressional Budget Office (CBO) last month noted that, with respect to the $5.1 billion in unobligated SCHIP balances, “authority to distribute the funds to states…expired in 2017.”

CBO also “projected that the rescission from the child enrollment contingency fund would not affect payments to states.” In sum, the budget office concluded that the $7 billion rescission “would not affect…the number of individuals with insurance coverage.”

Had Republicans stuck to their prior principles on SCHIP, much of the rescissions package would have proved unnecessary. Congress never would have authorized the funds in the first place, eliminating the need to rescind that spending. They did not. Collins voted against the package because of the SCHIP funds, while Sen. Lisa Murkowski (R-AK) voted to support it, but very begrudgingly.

Parochial Interests Clip the Other Vote

The other Senate Republican no vote came from Burr, a surprise opponent of the measure. Burr said he opposed the package’s $16 million reduction in funding for the Land and Water Conservation Fund.

Burr’s staff told the Washington Post they had not received assurances that Burr could receive a vote on an amendment striking the land and water reduction from the package, leading the senator to oppose the procedural motion to bring the package to the floor.

On the other hand, killing a $15 billion spending reduction package over literally 0.1 percent of its contents seems more than slightly absurd. With the federal debt at $21 trillion and rising, if Congress will not act on this package—buckets of unspent money lying around at agencies, like spare change under the proverbial couch cushions—when will it discover fiscal discipline?

All Dessert, No Spinach

The defeat of this rescissions package means another may not follow in short order. The administration wanted to propose reductions in spending from March’s omnibus legislation. But appropriators like Senate Majority Leader Mitch McConnell (R-KY) said that one party clawing back money included in a bipartisan budget deal might impede Congress’ ability to pass budget-busting legislation in the future. (Quelle horreur!)

The administration relented in the short-term, hoping to start a virtuous cycle of fiscal responsibility and set spending-reducing precedent they could build upon. Unfortunately, however, the administration failed to recognize the magnitude of this Congress’ bipartisan addiction to federal spending.

Sooner or later, Congress will end up passing spending reductions of a much larger scale than last week’s rescissions package. That they failed to start that task when they had an easy opportunity—the lowest of the low-hanging fruit—will make the spending reductions Congress ultimately enacts that much larger, and more painful.

This post was originally published at The Federalist.

The Absurdity of the Justice Department’s Obamacare Lawsuit Intervention

Last summer, I wrote about how President Trump had created the worst of all possible outcomes regarding one Obamacare program. In threatening to cancel cost-sharing reduction payments to insurers, but not actually doing so, the administration forced insurers into raising premiums, while not complying with the rule of law by cutting off the payments outright.

Eventually, the administration finally did cut off the payments in October, but for several months, the uncertainty represented a self-inflicted wound. So too a brief filed by the Department of Justice (DOJ) late last week regarding an Obamacare lawsuit several states brought in February, which asked the court to strike down both Obamacare’s individual mandate and the most important of its federally imposed insurance regulations.

It takes a very unique set of circumstances to arrive at this level of opposition. Herewith the policy, legal, and political implications of DOJ’s actions.

Let’s Talk Policy First

Strictly as a policy matter, I agree with the general tenor of the Justice Department’s proposals. Last April, I analyzed Obamacare’s four major federally imposed insurance regulations:

  1. Guaranteed issue—accepting all applicants, regardless of health status;
  2. Community rating—charging all applicants the same premiums, regardless of health status;
  3. Essential health benefits—requiring plans to cover certain types of services; and
  4. Actuarial value—requiring plans to cover a certain percentage of each service.

I concluded that these four regulations represented a binary choice for policymakers: Either Congress should repeal them all, and allow insurers to price individuals’ health risk accordingly, or leave them all in place. Picking and choosing would likely result in unintended consequences.

The Justice Department’s brief asks the federal court to strike down the first two federal regulations, but not the last two. This outcome could have some unintended consequences, as a New York Times analysis notes.

But repealing the guaranteed issue and community rating regulations would remove the prime driver of premium increases under Obamacare. Those two regulations led rates for individual coverage to more than double from 2013 to 2017, necessitating the requirement for individuals to purchase, and employers to offer, health coverage, the subsidies to make coverage more “affordable,” and the tax increases and Medicare reductions used to fund them.

I noted last April that Republicans have a choice: They can either keep the status quo on pre-existing conditions or they can fulfill their promise to repeal Obamacare. They cannot do both. The DOJ brief acknowledges this dilemma, and that the regulations represent the heart of the Obamacare scheme.

Legal Question 1: Constitutionality

Roberts held that, while the federal government did not have the power to compel individuals to purchase health coverage under the Constitution’s Commerce Clause, Congress did have the power to impose a tax penalty on the non-purchase of coverage, and upheld the individual mandate on that basis.

But late last year, Congress set the mandate penalty to zero, with the provision taking effect next January. Both the plaintiff states and DOJ argue that, because the mandate will not generate revenue for the federal government beyond 2019, it can no longer function as a tax, and should be struck down as unconstitutional.

Ironically, if Congress took an unconstitutional act in setting the mandate penalty to zero, few seem to have spent little time arguing as much prior to the tax bill’s enactment last December. I opposed Congress’ action at the time, because I thought Congress needed to repeal more of Obamacare—i.e., the regulations discussed above. But few raised any concerns that setting the mandate penalty to zero represented an unconstitutional act:

  • While one school of thought suggests presidents should not sign unconstitutional legislation, President Trump signed the tax bill into law.
  • Likewise, President Trump did not issue a signing statement about the tax bill, seemingly indicating that the Trump administration had no concerns about the bill, constitutional or otherwise.
  • While in 2009 the Senate took a separate vote on the constitutionality of Obamacare, no one raised such a point of order during the Senate’s debate on the tax bill.
  • I used to work for one of the plaintiffs in the states’ lawsuit, the Texas Public Policy Foundation. TPPF put out no statement challenging the constitutionality of Congress’ move in the tax bill.

Legal Question 2: Severability

As others have noted, a court decision striking down the individual mandate as unconstitutional would by itself have few practical ramifications, given that Congress already set the mandate penalty to zero, beginning in January. The major fight lies in severability—either striking down the entire law, as the states request, or striking down the two major federal insurance regulations, as the Justice Department suggested last week.

The DOJ brief and the states’ original complaint both cite Section 1501(a) of Obamacare in making their claims to strike down more than just the mandate. DOJ cited that section—which called the mandate “essential to creating effective health insurance markets”—13 times in a 21-page brief, while the states cited that section 18 times in a 33-page complaint.

But that claim fails, for several reasons. First, the list of findings in Section 1501(a)(2) of the law discusses the mandate’s “effects on the national economy and interstate commerce.” In other words, this section of findings attempted to defend the individual mandate as a constitutional exercise of Congress’ power under the Commerce Clause—an argument Roberts struck down in the NFIB v. Sebelius ruling six years ago.

Second, the plaintiffs and the Justice Department briefs focus more on what a Congress eight years ago said—i.e., their non-binding findings to defend the individual mandate under the Commerce Clause—than what the current Congress did when it set the mandate penalty to zero, but left the rest of Obamacare intact. The Justice Department tried to retain a fig leaf of consistency by taking the same position regarding severability that the Obama administration did before the Supreme Court in 2012: that if the mandate falls, the guaranteed issue and community rating provisions (and only those provisions) should as well.

However, the Justice Department’s brief all but ignores Congress’s intervention last year. In a letter to Speaker of the House Paul Ryan (R-WI) regarding the lawsuit, Attorney General Jeff Sessions noted that “We presume that Congress legislates with knowledge of the [Supreme] Court’s findings.” A corollary to that maxim should find that the administration takes decisions with knowledge of Congress’ actions.

But rather than observing how this Congress zeroed out the mandate penalty while leaving the rest of Obamacare intact, DOJ claimed that the 2010 findings should control, because Congress did not repeal them. (Due to procedural concerns surrounding budget reconciliation, Senate Republicans arguably could not have repealed them in last year’s tax bill even if they wanted to.)

Third, as the brief by a series of Democratic state attorneys general—who received permission to intervene in the case—makes plain, Republican members of Congress said repeatedly during the tax bill debate last year that they were not changing any other part of the law. For instance, during the Senate Finance Committee markup of the tax bill, the committee’s chairman, Orrin Hatch (R-UT), said the following:

Let us be clear, repealing the [mandate] tax does not take anyone’s health insurance away. No one would lose access to coverage or subsidies that help them pay for coverage unless they chose not to enroll in health coverage once the penalty for doing so is no longer in effect. No one would be kicked off of Medicare. No one would lose insurance they are currently getting from insurance carriers. Nothing—nothing—in the modified mark impacts Obamacare policies like coverage for preexisting conditions or restrictions against lifetime limits on coverage….

The bill does nothing to alter Title 1 of Obamacare, which includes all of the insurance mandates and requirements related to preexisting conditions and essential health benefits.

As noted above, I want Congress to repeal more of Obamacare—all of it, in fact. But what I want to happen and what Congress did are two different things. When Congress explicitly set the mandate penalty to zero but left the rest of the law intact, I should not (and will not) go running to an activist judge trying to get him or her to ignore the will of Congress and strike all of it down regardless. That’s what liberals do.

Too Cute by Half Problem 1: Legal Outcomes

The brief the Democratic attorneys general filed suggested another possible outcome—one that would not please the plaintiffs in the lawsuit. While the attorneys general attempted to defend the mandate’s constitutionality despite the impending loss of the tax penalty, they offered another solution should the court find the revised mandate unconstitutional:

Under long-standing principles of statutory construction, when a legislature purports to amend an existing statute in a way that would render the statute (or part of the statute) unconstitutional, the amendment is void, and the statute continues to operate as it did before the invalid amendment was enacted.

It remains to be seen whether the courts will find this argument credible. But if they do, a lawsuit seeking to strike down all of Obamacare could actually restore part of it, by getting the court to reinstate the tax penalties associated with the mandate.

This scenario could get worse. In 2015, the Senate parliamentarian offered guidance that Congress could set the mandate penalty to zero, but not repeal it outright, as part of a budget reconciliation bill. Republicans used this precedent to zero-out the mandate in last year’s tax bill. But a court ruling stating that Congress cannot constitutionally set the mandate penalty to zero, and must instead repeal it outright, means Senate Republicans would have to muster 60 votes to do so—an outcome meaning the mandate might never get repealed.

In June 2015, the Supreme Court issued a ruling in the case of King v. Burwell. In its opinion, the court ruled that individuals in states that did not establish their own exchanges (and used the federally run healthcare.gov instead) could qualify for health insurance subsidies. By codifying an ambiguity in the Obamacare statute in favor of the subsidies, the court’s ruling prevented the Trump administration from later taking executive action to block those subsidies.

In King v. Burwell, litigating over uncertainty in Obamacare ended up precluding a future administration from taking action to dismantle it. The same thing could happen with this newest lawsuit.

Too Cute by Half Problem 2: Legislative Action

Sooner or later, someone will recognize an easy solution exists that would solve both the problem of constitutionality and severability: Congress passing legislation to repeal the mandate outright, after the tax bill set the penalty to zero. But this scenario could lead to all sorts of inconsistent, yet politically convenient, outcomes:

  • Democrats attacking Republicans over last week’s DOJ brief might oppose repealing a (now-defanged) individual mandate, because it would remove what they view as a powerful political issue heading into November’s midterm elections;
  • Republicans afraid of Democrats’ political attacks might say they repealed a part of Obamacare (i.e., the individual mandate) outright to “protect” the rest of Obamacare (i.e., the federal regulations and other assorted components of the law) from being struck down by an activist judge; and
  • Some on the Right might oppose Congress taking action to repeal “just” the individual mandate, because they want the courts to strike down the entire law—even though such a job rightly lies within Congress’ purview.

As others have noted, these contortionistic, “Through the Looking Glass” scenarios speak volumes about the tortured basis for this lawsuit. The Trump administration should spend less time writing briefs that support legislating from the bench by unelected judges, and more time working with Congress to do its job and repeal the law itself.

This post was originally published at The Federalist.

Mixed Messages on Paul Ryan’s Entitlement Record

Upon news of House Speaker Paul Ryan’s retirement Wednesday, liberals knew to attack him, but didn’t know exactly why. Liberal Politico columnist Michael Grunwald skewered Ryan’s hypocrisy on fiscal discipline:

Ryan’s support for higher spending has not been limited to defense and homeland security. He supported Bush’s expansion of prescription drug benefits, as well as the auto bailout and Wall Street bailout during the financial crisis…Ryan does talk a lot about reining in Medicaid, Medicare, and Social Security, for which he’s routinely praised as a courageous truth-teller. But he’s never actually made entitlement reform happen. Congress did pass one law during his tenure that reduced Medicare spending by more than $700 billion, but that law was Obamacare, and Ryan bitterly opposed it.

For the record, Ryan opposed Obamacare because, as he repeatedly noted during the 2012 campaign, the law “raided” Medicare to pay for Obamacare. (Kathleen Sebelius, a member of President Obama’s cabinet, admitted the law used Medicare spending reductions to both “save Medicare” and “fund health care reform.”)

Compare that with a Vox article, titled “Paul Ryan’s Most Important Legacy is Trump’s War on Medicaid”: “[Paul] Ryan’s dreams are alive and well. Through work requirements and other restrictions, President Donald Trump could eventually oversee the most significant rollback of Medicaid benefits in the program’s 50-year history.” It goes on to talk about how the administration “is carrying on Ryan’s Medicaid-gutting agenda.”

Which is it? On fiscal discipline, is Ryan an incompetent hypocrite, or a slash-and-burn maniac throwing poor people out on the streets? As in most cases, reality contains nuance. Several caveats are in order.

First, Ryan’s budgets always contained “magic asterisks.” As the Los Angeles Times noted in 2012, “the budget resolutions he wrote would have left that Medicare ‘raid’ in place”—because Republicans could only achieve the political goal of a balanced budget within ten years by retaining Obamacare’s tax increases and Medicare reductions.” The budgets generally repealed the Obamacare entitlements, thus allowing the Medicare reductions to bolster that program rather than financing Obamacare. The budgets served as messaging documents, but generally lacked many of the critical details to transform them from visions into actual policy.

Second, to the best of my recollections, Ryan never took on the leadership of his party on a major policy issue. Former GOP House Speaker John Boehner famously never requested an earmark during a quarter-century in Congress. Sen. John McCain’s “Maverick” image came from his fight against fellow Republicans on campaign finance reform.

But whether as a backbencher or a committee chair, Ryan rarely bucked the party line. That meant voting for the Bush administration’s big-spending bills like the Medicare Modernization Act and TARP—both of which the current vice president, Mike Pence, voted against while a backbench member of Congress.

Third, particularly under this president, Republicans do not want to reform entitlements. As I noted during the 2016 election, neither presidential candidate made an issue of entitlement reform, or Medicare’s impending insolvency. In fact, both went out of their way to avoid the issue. Any House speaker would have difficulty convincing this president to embrace substantive entitlement reforms.

In general, one can argue that, contrary to his image as a leader on fiscal issues, Ryan too readily followed. Other Republicans would support his austere budgets, which never had the force of law, but he would support their big-spending bills, many of which made it to the statute books.

On one issue, however, Ryan did lead—and in the worst possible way. As I wrote last fall, Ryan brought to the House floor legislation repealing Obamacare’s cap on Medicare spending. This past February, that repeal became law.

Ryan could have sought to retain that cap while discarding the unelected, unaccountable board Obamacare created to enforce it. As a result, Ryan’s “legacy” on entitlement reform will consist of his role as the first speaker to repeal a cap on entitlement spending.

Primum non nocere—first, do no harm. Ryan may not have had the power to compel Republicans to reform entitlements, but he did have the power—if he had had the courage—to prevent his own party from making the problem any worse. He did not.

This post was originally published at The Federalist.

Paul Ryan Shares Responsibility for Republicans’ Obamacare Failure

On the last day of 2016, I sent the editing team at The Federalist a draft article that predicted events in the coming Congress. If those events came to pass, then it could publish, along with a notation indicating that I had written it months (or years) previously.

The piece described a scenario in which cross-pressures over repealing-and-replacing Obamacare led Paul Ryan to resign his speakership. Even then, before the 115th Congress officially convened, I envisioned conflicts between the “repeal” wing of the Republican Party and the “replace” wing, making success on health care unlikely and Ryan the likeliest “fall guy” in any such scenario. Even though Wednesday’s retirement announcement by the speaker officially rendered this outcome moot, I can’t help but reflecting on the prediction.

A Party Proves It Has No Idea How to Lead

A few months after I drafted that prediction, the worst-kept secret among Republican circles became the fact that House leaders didn’t start drafting health-care legislation until late January 2017, around the time of President Trump’s inauguration. On one level, the delay made some sense. After all, no one expected Donald Trump to win the presidency—not even Donald Trump.

But on the other hand, members and staff should have immediately sprung to work the morning after the election, to begin assembling options and drafting legislation. Congressional leaders had 72 days between November 9, 2016 and January 20, 2017 to develop both a coherent strategy and a bill. They certainly didn’t do the latter, and they probably didn’t do enough of the former. Those failures ultimately lie at Ryan’s feet.

Some may argue that congressional leaders’ initial support for a repeal-first approach—also called “repeal-and-delay,” for it would have postponed the repeal’s effective date to allow for enacting a replacement—justified the lack of action on a “repeal-and-replace” measure. After all, “repeal-and-replace” didn’t become the preferred option until the month of Trump’s inauguration. But Republicans were always going to need some type of “replace” legislation eventually, and delaying work on drafting that bill qualifies as legislative malpractice.

Hiding Your Heads In the Sand Isn’t a Plan, Guys

Once they did release their bill publicly, House Republicans didn’t hold hearings on the legislation before marking it up, leaving many members to defend their votes for legislation whose full implications they didn’t necessarily comprehend.

The fast timetable meant House leaders passed the bill in committee, and on the House floor, without final Congressional Budget Office scores. One staffer called this tactic a game of Russian roulette—a hope that final CBO scores would not blow up in members’ faces after they voted for the bill. These procedural shortcuts led to understandable concerns among the public about the rush to pass a bill, not to mention justifiable arguments of hypocrisy over how Republican critics of Obamacare’s lack of transparency used an even more secretive process.

Second, once they did draft a bill, time pressures contributed to Ryan’s initial take-it-or-leave-it strategy with his own conference. In part, House leaders’ talk of “binary choices”—“Either support the Republican plan as-is, or support Obamacare”—stemmed from their desire to pre-empt a rightward drift that might hinder the bill’s chances in the Senate. But it also came from their absurd prediction—which I called absurd at the time—that Congress could introduce, and pass, legislation remaking much of the nation’s health sector within six weeks.

The Party’s Mess Isn’t Ryan’s Fault, But Leadership Lack Is

To be clear, the Republican Party faced internal fissures on health care that Ryan could not have resolved by himself. Immediately after the election, I considered stalemate the likeliest option, and so it proved.

But had House leaders crafted a bill sooner, they could have 1) guaranteed a more open process, alleviating some member concerns and preventing bad headlines about the lack of transparency, or 2) discovered the intractable nature of the debate at an earlier stage in 2017, and pivoted away from health care sooner (perhaps to come back to it at some later date). Either option would have proved far preferable than the events of last spring and summer.

To sum up: House leaders’ failure to plan, and draft Obamacare legislation well in advance, led to members taking tough votes—votes that could cost members their seats in November—without either all the information they needed to make an informed choice or a process they could publicly defend. And it squandered the entirety of what little honeymoon President Trump had with voters last year.

In his first letter to the Corinthians, Saint Paul asked, “For if the trumpet give an uncertain sound, who shall prepare himself to the battle?” At the time when Republican Washington needed a path toward action on health care, another Paul proved to be a far from certain trumpet, with disastrous consequences for his party. It will stand as part of his legacy.

This post was originally published at The Federalist.

Is the CBO Director Breaking the Law to Help Paul Ryan Bail Out Obamacare?

Why would an ostensibly nonpartisan Congressional Budget Office (CBO) director violate the law and the word he gave to Congress only a few short weeks ago? Maybe because Paul Ryan asked him to.

In late January, I wrote about how the House speaker wanted CBO to violate budget rules to make it easier for Congress to pass an Obamacare bailout. At the time, House leadership aides dismissed my theories as unfounded and inaccurate speculation. Yet buried on page 103 of Monday’s report on the budget and economic outlook, CBO did exactly what I reported on earlier this year—it changed the rules, and violated the law, to make it easier for Congress to pass an Obamacare bailout.

The Making of a Budget Gimmick

Because of the interactions between the (higher) premiums and federal premium subsidies (which went up in turn), the federal government will likely spend more on subsidies this year without making CSR payments than with them.

Therein lay the basis of the budgetary gimmick Ryan and congressional leaders wanted CBO to help them accomplish. House staffers wanted CBO to adjust its baseline and assume the higher levels of spending under the “no-CSR” scenario. By turning around and appropriating funds for CSRs, thereby lowering this higher baseline, Congress could generate budgetary “savings”—which Republicans could spend on more corporate welfare for insurers, in the form of reinsurance payments.

The Problem? It’s Illegal

As I previously noted, the House’s scheme, and CBO’s actions on Monday to perpetrate that scheme, violate the law. Section 257(b)(1) of the Gramm-Rudman-Hollings Act (available here) requires budget scorekeeping agencies to assume that “funding for entitlement authority is…adequate to make all payments required by those laws.”

Following my January post, Rep. Dave Brat (R-VA) asked CBO Director Keith Hall about this issue at a House Budget Committee hearing. Hall noted that CBO had been treating the cost-sharing reductions “as an entitlement, so it’s”—that is, the full funding of CSRs in the baseline—“remained there, unless we get direction to do something different. We’re assuming essentially that the money will be found somewhere, because it’s an entitlement.”

In a separate exchange with Rep. Jan Schakowsky (D-IL) at the same hearing, Hall went even further: He said, “We’ve treated the cost-sharing reductions actually as an entitlement, at least so far until we get other direction from the Budget Committee.”

Then Comes the Flip-Flop

Yet Monday’s document on the budget outlook did exactly what Hall said mere weeks ago that CBO would not. A paragraph deep in the section on “Technical Changes in Outlays” included this nugget:

Technical revisions caused estimates of spending for subsidies for coverage purchased through the marketplaces established under the ACA and related spending to be $44 billion higher, on net, over the 2018–2027 period than in CBO’s June baseline. A significant factor contributing to the increase is that the current baseline projections reflect that the entitlement for subsidies for cost-sharing reductions (CSRs) is being funded through higher premiums and larger premium tax credit subsidies rather than through a direct appropriation.

In the span of a few weeks, then, Hall and CBO went from “We’re assuming essentially that the money [i.e., the CSR appropriation] will be found somewhere” to the exact opposite assumption. Yet the report mentions no directive from the budget committees asking CBO to change its scorekeeping methodology, likely because the committees did not give such a directive.

In analyzing the status of the Medicare trust fund, which CBO projects will become exhausted in fiscal year 2026, Footnote A of Table C-1 notes how the baseline “shows a zero [balance] rather than a cumulative negative balance in the trust fund after the exhaustion date”—because that’s what Gramm-Rudman-Hollings requires:

CBO may try to make the semantic argument, implied in the passage quoted above, that it continues to assume full funding of CSRs, albeit through indirect means (i.e., higher spending on premium subsidies) rather than “a direct appropriation.” But that violates what Hall himself said back in late January, when he laid out CBO’s position, and said it would not change absent an explicit directive—even though the budget report nowhere indicates that CBO received such direction.

It also violates sheer common sense that the budget office should assume “funding for entitlement authority is…adequate to make all payments” by assuming that the administration does not make all payments, namely the direct CSR payments to insurers.

Coming Up: An Embarrassing Spectacle

During his testimony before the House and Senate Budget Committees this week, Hall may make a spectacle of himself—and not in a good way. He will have to explain why he unilaterally changed the budgetary baseline in a way that explicitly violated his January testimony. He will also have to justify why CBO believes Gramm-Rudman-Hollings’ direction to assume full funding for “all payments” allows CBO to assume that Congress will not make direct CSR payments to insurers.

Conservatives should fight to expose this absurd and costly budget gimmick, and demand answers from Hall as to what—or, more specifically, whom—prompted his U-turn. If Hall wants to transform himself into the puppet of House leadership, and break his word to Congress in the process, he should at least be transparent about it.

This post was originally published at The Federalist.

Republicans Were Against Reinsurance Before They Were For It

House Speaker Paul Ryan (R-WI) made comments in a January radio interview supporting a “bipartisan opportunity” to fund Obamacare’s Exchanges, specifically through mechanisms like reinsurance.

How quickly the speaker forgets — or wants others to forget. Obamacare already had a reinsurance program, one that ran from 2014 through 2016. During that time, non-partisan government auditors concluded that, while implementing that reinsurance program, the Obama administration violated the law, diverting billions of dollars to insurers that should have gone to the United States Treasury. After blasting the Obama administration’s actions as the “Great Obamacare Heist,” and saying taxpayers deserved their money back, Republican leaders have for the past eighteen months done … exactly nothing to make good on their promise.

Section 1341 of Obamacare imposed a series of “assessments” (some have called them taxes) to accomplish two objectives. Section 1341 required the Department of Health and Human Services (HHS) to collect $5 billion, to reimburse the Treasury for the cost of another Obamacare program that operated from 2010 through 2013. The assessments also intended to provide a total of $20 billion — $10 billion in 2014, $6 billion in 2015, and $4 billion in 2016 — in reinsurance funds to health insurers subsidizing their high-cost patients.

Unfortunately, however, the “assessments” on employers offering group health coverage did not achieve the desired revenue targets. The plain text of the law indicates that, under such circumstances, HHS must repay the Treasury before it paid health insurers. But the Obama Administration did no such thing — it paid all of the available funds to insurers, while giving taxpayers (i.e., the Treasury) nothing.

The non-partisan Congressional Research Service and other outside experts agreed that the Obama administration flouted the law to give taxpayers the shaft. In September 2016, the Government Accountability Office (GAO) agreed: “We conclude that HHS lacks authority to ignore the statute’s directive to deposit amounts from collections under the transitional reinsurance program in the Treasury and instead make deposits to the Treasury only if its collections reach the amounts for reinsurance payments specified in section 1341. This prioritization of collections for payment to issuers over payments to the Treasury is not authorized.”

At the time GAO issued its ruling, Republicans denounced the Obama Administration’s actions, and pledged to fight for taxpayers’ interests: Multiple Chairmen — including the current Chairs of the House Ways and Means Committee and Senate Budget, HELP, and Finance Committees — said in a statement that, as a matter of “fairness and respect for the rule of law clearly anchored in the Constitution,” the Obama “Administration need to put an end to the Great Obamacare Heist immediately.”

Sen. John Barrasso (R-WY), Chairman of the Senate Republican Policy Committee, said that “the Administration should end this illegal scheme immediately.”

A spokesman for the House Energy and Commerce Committee said that, “We expect the Administration to comply with the independent watchdog’s opinion, halt the billions of dollars in illegal Obamacare payments to insurers, and pay back the American taxpayers what they are owed.”

Since all this (self-)righteous indignation back in the fall of 2016 — six weeks before the presidential election — what exactly have Republicans done to follow through on all their rhetoric?

In a word, nothing. No legislative actions, no hearings, no letters to the Trump Administration — nothing. Some experts have suggested that the Trump administration could file suit against insurers, seeking to reclaim taxpayers’ cash, but the administration has yet to do so.

In September 2016, outside analysts explained why the Obama administration prioritized insurers’ needs over taxpayers’ — and the rule of law: “I don’t think the Administration wants to do anything to upset insurers right now.” That same description just as easily applies to Republican congressional leaders today, making their promise to end the “Great Obamacare Heist” yet another one that has thus far gone unfulfilled — that is, if they ever intended to make good on their rhetoric in the first place.

This post was originally published at The Federalist.

Paul Ryan Flip-Flops on Fiscal Responsibility to Prop Up Obamacare

What a difference eight years makes. In February 2010, Rep. Paul Ryan (R-WI), then Ranking Member of the House Budget Committee, spoke at the White House health care summit decrying Obamacare as “a bill that is full of gimmicks and smoke-and-mirrors.” His comments became a viral sensation, so much so that the Wall Street Journal published a condensed version of his remarks as an op-ed. (Here’s the video.)

Reporters confirmed as much on Monday, when an article claimed that the Congressional Budget Office (CBO) believes appropriating funds for cost-sharing reduction payments (CSRs) for three years would save the federal government $32 billion, when compared to a scenario in which Congress does not appropriate CSR payments. Not coincidentally, the article noted that a separate bill by Rep. Ryan Costello (R-PA) — “which House leaders have embraced” — would create a $30 billion “Stability Fund” for insurers, purportedly paid for by the $32 billion in “savings” caused from appropriating CSRs.

The article doesn’t say so outright, but it’s not hard to figure out what happened behind the scenes:

  1. House Republican leadership directed CBO to score the fiscal effects of making CSR payments to insurers compared to not making the payments.
  2. House Republican leaders leaked results of the score to insurer lobbyists.
  3. Those insurer lobbyists then leaked the results to reporters — to claim their bill would generate “savings” for the federal government.

The end result sounds like a Broadway musical: “How to Spend $60 Billion in Taxpayer Funds without Really Trying.” If insurers have their way, Congress would spend roughly $30 billion in CSR payments for the next three years, and that $30 billion in spending would “save” another $32 billion — which Congress would turn right around and send to insurers, via the $30 billion “Stability Fund.”

Compare this maneuver to Obamacare — or, more specifically, Paul Ryan’s 2010 critique of Obamacare. At the White House health care summit, Ryan told President Obama in regard to Obamacare’s proposed reductions to Medicare: “You can’t say that you’re using this money to either extend Medicare solvency and also offset the cost of this new program. That’s double counting.” If claiming that Medicare savings both enhance Medicare’s solvency and pay for Obamacare constitutes double counting — and it does — then what exactly is jiggering the budgetary baseline solely to generate “savings” that Republicans can turn around and spend…?

There’s another problem too: The fraudulent “savings” are also illegal. As I previously noted, the Gramm-Rudman-Hollings statute requires CBO to assume full payment of CSRs — meaning the scenario that House Republicans asked CBO to score violates the statutory requirements.

Some might claim that, since President Trump stopped making CSR payments last October, a scenario in which CBO does not assume the federal government makes those payments represents a more realistic fiscal approach than that currently required by Gramm-Rudman-Hollings. To which I have one simple retort: If you don’t like the law, then Change. The. Law.

Ryan and House Republican leaders don’t want to change the Gramm-Rudman-Hollings law — just like they don’t want to pay for the insurer bailout. Such efforts would take time and effort, necessitate legislative transparency — as opposed to closed-door meetings and selective leaks to K Street lobbyists — and require difficult decisions about how to pay for new spending. Why make those tough choices now, when Republicans can just charge the tab for the insurer bailout on to the national credit card, and let the next generation pay the bill instead?

Congressional Republicans spent eight years decrying Obamacare’s fiscal gimmickry, and President Obama’s executive lawlessness. If they follow the example of the House Republican leadership, and engage in their own illegal budgetary gimmicks, they will have no grounds to complain about Democrats’ spending sprees or overreach. And they shouldn’t be surprised if no one believes their claims of fiscal responsibility come November 6.

This post was originally published at The Federalist.

The Binary Choice Paul Ryan Doesn’t Want to Face

This time last year, House Speaker Paul Ryan (R-WI) spoke to all who would listen about the health care legislation that Republican leadership crafted: “This is the closest we will ever get to repealing and replacing Obamacare. It really comes down to a binary choice.” Now, however, Ryan faces a binary choice himself — one that he and his leadership colleagues seem intent on deflecting.

Ryan can support an Obamacare bailout, or he can support the pro-life movement. He cannot support both.

The deafening silence emanating from Republican leaders on the life issue speaks volumes to both their knowledge of the problem, and their intent of how to handle it. Ryan desperately wants to bail out Obamacare, going so far as to promote a ridiculous budgetary gimmick that should make Ryan, in his former role as Budget Committee Chairman, laugh out loud in its absurdity.

If Republican leaders considered the life issue a red line they cannot, and will not, cross, to pass an Obamacare bailout, they would have said so months ago. By and large, they have not done so, instead issuing only mealy-mouthed statements that “we have been working on it.”

Such statements constitute, in plain English, a cop-out. When the issue presents a binary choice, as here, Congress has little to “work on”—the Hyde amendment either appears in the bill, or it doesn’t. A cynic might argue that the “we have been working on it” statement means that Republican leaders consider the life issue a political problem to game their way around, rather than a moral principle that they must uphold first, last, and always.

But executive action cannot trump the statute itself. Senate Majority Leader Mitch McConnell (R-KY) said the week Obamacare passed that the law “forces taxpayers to pay for abortions,” and only another law will change that dynamic.

As Congressman Jim Sensenbrenner observed in March 2010:

This bill expands abortion funding to the greatest extent in history. I have heard that the president is contemplating an executive order to try to limit this. Members should not be fooled. Executive orders cannot override the clear intent of a statute. … If an executive order moves the abortion funding in this bill away from where it is now, it will be struck down as unconstitutional because executive orders cannot constitutionally do that.

Republican leaders may also embrace the political tactic of a “headpat vote.” This gambit would bring to the floor two separate bills — one containing the Obamacare “stability” funding, and a separate, stand-alone bill codifying pro-life protections for that funding. While that concept might sound reasonable at first blush, the pro-life community would find the outcome unacceptable — the Obamacare funding would remain on a “must-pass” bill headed straight to the president’s desk, while the pro-life restrictions would die in the Senate by failing to get the 60 votes needed to break a filibuster.

This procedural gimmick would represent the worst of the Washington “swamp,” allowing Republican politicians to echo John Kerry in 2004 by taking both sides of an issue: “I actually voted for the $87 billion before I voted against it.” Moreover, it would demonstrate that, when the chips are down, Republican leaders view the life issue and community as something to be bargained away, or appeased through meaningless political tokenism, rather than as a moral imperative and matter of first principles.

In the end, the pro-life community has witnessed enough political double-talk, most notably by Democrats attempting to claim Obamacare does not fund abortion coverage, to see through any procedural gimmicks Republican leaders might propose. The question of whether Republicans support taxpayer funding of abortion coverage in Obamacare really does come down to a binary choice. Here’s hoping that Republicans choose the side of life.

This post was originally published at The Federalist.

Who Really Proposed the Obamacare Bailout in the Trump Budget?

Maybe it was Colonel Mustard in the conservatory with the revolver. Or Professor Plum in the library with the candlestick.

The story behind the Obamacare bailout proposed in last week’s budget has taken on a mysterious tone, akin to a game of Clue. My Thursday story focusing on the role played by White House Domestic Policy Council Chair Andrew Bremberg prompted pushback from some quarters about the actual perpetrator of the proposal. As a result, I spent a good chunk of Friday afternoon trying to gather more facts—and found definitive ones hard to come by.

As to the accuracy of my initial theory, people I trust and respect arrived at strikingly different views. However, I found surprising unanimity on one count: No one—but no one—wants to take credit for inserting the proposal to pay $11.5 billion in risk corridor claims. As someone told me: “You raise a valid question. If Andrew Bremberg didn’t insert the proposal into the budget”—and this person didn’t think he did—“then how did it get in there?”

Therein lies a huge problem. To call the inclusion of a $11.5 billion proposal in the president’s budget that no one in the administration seemed to know about, or wants to take credit for, a prime example of managerial incompetence would put it mildly. Either career staff inserted it in the budget, and the political staff did not have the antennae or bandwidth to understand its consequences and take it out, or a few political appointees and career staff hijacked the budget process, with most other individuals unaware of the situation until the budget’s public release.

To borrow a politically loaded phrase, someone—or a group of someones—colluded to get this language included in the budget. Its inclusion could cost federal taxpayers literally billions of dollars.

Why It Matters

By submitting a budget proposal to “request mandatory appropriations for the risk corridors program,” the White House completely undermined and undercut the arguments its own Justice Department had made in court a few short weeks ago, that the federal government owes insurers nothing.

In other words, whomever inserted this policy U-turn into the budget, just as the judges ponder a ruling in the insurer lawsuits, may have effectively “tanked” the government’s case. Either by leading to an adverse ruling, or by prompting the Justice Department to settle the case at a much higher cost, this move could cost taxpayers billions.

A Pro-Life Administration, Or Not?

Unfortunately, it gets worse. While the budget did include new funds for insurers, including the controversial risk corridors bailout described above, it did not include a single word proposing that such funds prevent taxpayer dollars from going to plans that cover abortion.

There’s a reason for the deafening silence: Republicans know that any legislation that funds insurers and provides robust pro-life protections will not pass. Democrats will object to its inclusion. Given the choice between passing up on an Obamacare bailout or abandoning their pro-life principles, Republicans have given every expectation that they will choose the latter course. (They shouldn’t bail out Obamacare regardless, but that’s a separate story.)

Regardless of who proposed these, it doesn’t take a detective to understand how a policy reversal that could cost taxpayers billions and a pending U-turn by Republicans to fund abortion coverage represent a major one-two punch against conservatives. But the mysterious origins and mangled management of the risk corridor proposal adds a further layer of insult to injury, a triple whammy of a tough week for the administration.

This post was originally published at The Federalist.