Second Try On Obamacare Repeal?

The Briefing, Vol. V, Issue 14-

This week:

  • Return on Obamacare repeal?
  • Hundreds of regulations Trump and Republicans could permanently abolish
  • Three key Dem senators pick their poison on Gorsuch

Outlook: It’s been only a week since their health care disaster, and already Republican leaders in Congress and the White House are already talking about bringing back health care reform. The White House and Speaker Paul Ryan’s earlier pose — suggesting they were just going to walk away and let Obamacare destroy itself — may have just been a bluff.

If Rand Paul can suddenly act optimistic about the prospects of Obamacare repeal, that suggests there’s a real chance. Paul was one of the fiercest critics of the original GOP effort and was always considered a “no” vote in the Senate.

After all the drama last month, a sudden and unexpected success on health care could breathe new life into Republican prospects going forward, as well as the party’s legislative agenda. And that’s something President Trump really needs at the moment. Recall that throughout his primary campaign, he managed to come back from setbacks again and again, leaving an impression with his many victories that the setbacks just didn’t matter or couldn’t have been as serious as anyone thought. What Trump needs right now, and hasn’t gotten yet, is a big legislative victory to help him and his party get past a rocky start of 2017. A lot is riding on his shoulders right now as he tries to negotiate, between threats to work with Democrats and promises of provisions that could get conservatives in the House Freedom Caucus interested.

Regulatory repeal: One area where Trump and the Republicans have been very active is regulatory repeal. Vice President Mike Pence got to cast his second tie-breaking vote this week on a Congressional Review Act resolution. It was an important piece of legislation — it repeals an eleventh-hour rule by President Obama that would have (in effect) prevented states for good from cutting off federal money to Planned Parenthood.

Under the CRA, Congress gets an effective veto over agency regulations that have been recently put into effect, and it gets it with a simple majority vote. One benefit of using the CRA process to roll back regulations, instead of simply doing it through the regulatory process, is that these repeals take effect immediately and do not require a Senate supermajority. But another is that when a rule is repealed via CRA, it isn’t just gone for now — it’s gone permanently. CRA repeal forbids the executive branch from issuing the same or any similar rule unless and until Congress passes a new law on the subject.

In this case, it means no future Democratic administration will be able to give abortionists an absolute right to federal money, as Obama attempted to do with his last-minute rule. But the benefits don’t stop there — CRA repeals can also prevent all manner of mischief by future Democratic administrations.

Several conservatives — including one of the former congressional staffers who originally drafted the CRA — have pointed out that although CRA can only be used on rules and regulations issued in the last 60 legislative days, CRA in some cases has an extended “statute of limitations” due to the neglect or disrespect of the bureaucracy toward Congress in certain cases. To be specific, agencies are required to send Congress a report on each new rule, regulation, and directive. If they fail to do so, then there is a consequence — the 60 day period actually begins whenever the rule is issued or whenever the report reaches Congress, whichever comes later. If there are older rules for which no report was issued, a report could be issued now, and a CRA repeal process initiated for that rule.

And it turns out there are hundreds of rules for which this is the case. The conservative group Cause of Action has compiled a list of 835 economically significant federal rules since 1996 (when the Congressional Review Act was passed) for which no report was ever sent to Congress. Of these, 283 were promulgated during the Obama administration, including 41 EPA rules and one HHS rule related to Obamacare’s requirements on medical loss ratios.

In theory, the Trump administration could at any time send a report for these regulations to Congress, which could promptly act to repeal them.

Not all of these rules are necessarily bad. Some might actually be favorable, and some might be better rewritten by the federal agencies than repealed under CRA. Also, there are limiting factors to consider, especially floor time in the Senate, because Congress can only work on one CRA resolution at a time.

Still, this would provide Republicans in Congress with a chance to pass substantive legislation during the election year, after the period when most major legislation is considered.

Such an exercise could be well worth it in the case of at least a few of these rules. For one thing, it would force left-wing and environmental legal groups onto the defensive for a change. But more importantly, the permanence of CRA repeal makes it a very powerful tool, and the need for only 51 Senate votes to pass it makes it a very useful one. At the pace he is going now, Trump will already be remembered for deregulation, but an aggressive use of the CRA to roll back older Obama regulations could allow him to do quite a bit more.

Senate 2018
Indiana: Democratic Sen. Joe Donnelly announced over the weekend that he will be voting to confirm Neil Gorsuch to the Supreme Court.

In making this decision, Donnelly will be attempting to bolster his reputation as a moderate in a state that President Trump carried easily last year. At the moment, Republican Reps. Luke Messer and Todd Rokita appear to be his two most likely challengers.

Missouri: Sen. Claire McCaskill, D, has taken the opposite tack, promising not only to vote against Gorsuch but also to filibuster him. Meanwhile, she is talking about the possibility of a primary being run against her from her Left, and reaching out to supporters of Bernie Sanders to remain united behind her. This is not the first time she’s said such a thing.

It is entirely possible that McCaskill has private polling showing her under threat from a primary. So far, there’s no public indication of such a thing happening. But McCaskill faces an electorate that voted almost exactly the same as Donnelly’s did in Indiana last November — for Trump, and by nearly 20 points.

She appears to be playing with fire. In its most recent 50-state survey in September, Morning Consult gave her a decent 46 percent approval rating. But it will be very interesting to see what the first polls in this race look like, especially after this announcement.

Montana: More Gorsuch news: Democratic Sen. Jon Tester will join McCaskill in her filibuster against him. Tester may just feel emboldened by the removal of his most formidable potential challenger, Interior Secretary Ryan Zinke, from the field. But this is also the sort of decision on his part that could help a less formidable Republican perform better against him.

Texas: El Paso-area Rep. Beto O’Rourke will indeed run for the Democratic nomination against Republican Sen. Ted Cruz. Cruz handily carried his home state in its Republican presidential primary, before President Trump carried it by a less-impressive-than-usual margin in November — by just nine points.

If Democrats ever had an opportunity to prove that the state is really shifting in their direction, this is the race where they should be able to do it.

  1. It’s one of only three (along with Arizona and Nevada) Senate races where Democrats have a serious pickup opportunity,
  2. Cruz has made his fair share of enemies on all ends of the political spectrum, and
  3. there will likely be some of the usual midterm backlash against the incumbent president and his party.

Yet Hillary Clinton’s 43 percent marked the best performance by a Democrat in a statewide race in at least four election cycles. In every recent statewide race, from railroad commissioner to governor, Democrats have hit a ceiling in the high 30’s or, in a few cases, the low 40s. So this is still quite the uphill battle for them.

House 2017:
Georgia-6: Republicans are in a justified panic over the state of the race to succeed HHS Secretary Tom Price in his now-vacant suburban Atlanta congressional district. That former congressional staffer and Democrat Jon Ossoff will finish first in the multiparty jungle primary is virtually guaranteed, but there are concerns now that he might just win the thing outright with a 50 percent majority. If he can be held below 50 percent, then he will face the best-performing rival (certain to be one of three Republicans) this summer.

Speaker Ryan’s SuperPAC is now getting involved with a $2.2 million ad buy to stop the bleeding. If President Trump’s working class appeal and style improved Republican performance throughout the Midwest, Georgia, the Atlanta area, and this district in particular served as an excellent example of where it did the opposite. In a low-turnout election with roughly 18 candidates running, Ossoff has a real chance.
Election day is April 18.