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I often dream about the Supreme Court. Don’t try to psychoanalyze me–just go with it. Last night I dreamt that I was sitting next to Justice Breyer, and showing him the galleys for Unraveled. The first thing he did was the “Washington read.” He quickly flipped to the index to see how many times his name was mentioned. I can’t tell you how many people did this for Unprecedented, and told me–complained, really–that their names weren’t listed enough. I expect similar complaints this go-around, because Cambridge does not index the names of authors in the footnotes.

In any event, after checking out his own name, Breyer flipped to the other justices to see how many times they were listed in the index. I remember telling him that because Justice Thomas doesn’t ask any questions, he’s not in the book very often. I also remember seeing a typo in the manuscript–which I am positive is actually there–but I have no recollection of what it was. I’ll see it once the book is published.

Well Justice Breyer, in case you were trying to contact my subconscious, here are your entires in the index of Unraveled.

Breyer, Stephen G. (Justice), 6, 294

King v. Burwell and, 479
on Medicaid expansion, 546
NFIB v. Sebelius and, 122–123
nomination of, 487–488
religious freedom rulings and, 254, 306, 308
Supreme Court budget hearings and, 418
on Supreme Court building, 515
Wheaton College ruling and, 310
Zubik v. Burwell and, 505–508, 516–517, 521, 523, 534

And here is Justice Thomas’s far-more paltry index listings:

Thomas, Clarence (Justice), 78, 123, 229, 250, 343, 442, 479, 481

on Medicaid expansion, 546
nomination of, 486–487
Zubik v. Burwell and, 521

By far, the Justice with the most mentions in this Obamacare book is (shocker) the Chief:

Roberts, John (Chief Justice), xxiii

Cruz and, 465–467
defunding proposals for ACA and, 25
on former chief justices, 432–433
on Garland nomination, 492
individual mandate in ACA and, 91, 116–117, 190, 344, 346
on judicial nominations, 230–231
King v. Burwell and, 387–388, 399–402, 433–435, 437–444, 465–467
on Medicaid expansion, 546
nomination of, 465–467, 487–488
religious freedom rulings and, 255–257, 261, 264, 293–294, 303
Scalia’s death and, 479–482, 520
Supreme Court rulings on ACA and, 59–60, 75, 77–78, 130, 251, 270, 291–292, 560
tax credits in ACA and, 122–123
Verrilli on, 518
Zubik v. Burwell and, 503, 508, 510, 512–514, 521, 524–527

 

In Unraveled, I develop the theme of the political cost of Obamacare. No–not the never-ending efforts of Republicans to repeal the ACA. Rather, what were the costs to the Democrats, and our polity at large, of forcing through this massive transformation of our society on a straight party line vote.

The Washington Post analyzes several of these “What Ifs?” in a series on President Obama’s legacy. The story begins in 2009, as his closest advisors urged him not to focus on Health Care right away.

The debate roiled Democrats, including some inside the administration, from the earliest days of the presidency. At the time, the nation remained beset by the economic turmoil sparked by the 2008 global financial meltdown, and many wondered whether health-care reform should be the top priority.

“I begged him not to do this,” former chief of staff Rahm Emanuel told a reporter in 2010, airing his preference for a hard focus on jobs and the economy even after the passage of the stimulus bill.

On Capitol Hill, many Democratic lawmakers, aides and consultants wondered — openly and not — about the political costs of the dogged pursuit of health-care reform. The costs were to be measured not only in congressional seats but in policy priorities.

However, by focusing on the ACA with majorities in both houses, the President put aside other major policy goals:

What would this mean for other major items on the Democratic agenda, ones requiring major outlays of presidential political capital? What about cap-and-trade, union “card check,” the Dream Act or the Employment Non-Discrimination Act — each one a major priority for key parts of the Democratic base?

None of those bills would pass the 111th Congress, even though for the first time in more than 40 years one party held the presidency and dominant majorities in both houses of Congress.

I distinctly remember in 2010 talks about the President turning to cap-and-trade, card check, and the Dream Act once health care was done. Didn’t happen.

As a result of the ACA, many Democrats lost their seats:

The GOP leveraged Obamacare into massive political gains, and they didn’t end with the profound Democratic losses in the 2010 midterms. By the last year of the Obama administration, his party had lost 14 Senate seats, 68 House seats, 12 governorships and hundreds of state legislative seats.

One academic paper suggested that the Obamacare vote alone cost the Democrats roughly 25 House seats — the difference between a historic landslide and two more years in the majority.

The Senate remained under Democratic control until 2015, but a Republican House majority, with an ascendant cadre of hard-line tea party conservatives unwilling to compromise, meant that Obama’s progressive agenda was a dead letter two years into his presidency.

And the rest of his presidency focuses on keeping the government funded:

Card check and cap-and-trade were out. A series of high-stakes fiscal cliffhangers were in, starting with a showdown over a potential U.S. credit default that ended in a deal forcing years of spending cuts that reined in Obama’s domestic ambitions.

Rather than take a Clintonian move to the middle, instead Obama turned to his pen and phone.

Fifteen years earlier, President Bill Clinton took his own midterm lumps and proceeded to make a centrist peace with new GOP House Speaker Newt Gingrich (Ga.), cutting deals on welfare reform, crime and other bills. With the exception of a brief and unsuccessful attempt at a fiscal “grand bargain” in 2011, Obama did not seek compromise at a Clintonian scale — the gulf between his progressive agenda and a hard-right House majority was too wide, and seemingly unbridgeable.

When he did seek to push a controversial priority though Congress — notably, seeking to expand firearm background checks — he lost. Instead, he shifted his efforts away from a branch of government he did not control to the one he did. His domestic legacy would be written in policy memos and the obscure pages of federal agency rulemakings.

The Keystone XL pipeline would not be built; power plants would emit less carbon dioxide; investment advisers would adhere to higher standards; and environmental regulators would have new authority over U.S. waterways. The Obama administration did those things by itself over the loud objections of the Republican Congress.

I’ll have an entire chapter on this theme in the book–stay tuned.

Starting in September, I will be traveling across the country to discuss Unraveled. I have events scheduled in New York, New Jersey, Virginia, D.C., Illinois, Arizona, Texas, Massachusetts, Alabama, Pennsylvania, Georgia, and other places. If you are interested in hosting me for an event, please drop me a line. I am on sabbatical during the fall semester, so I have far more flexibility than usual to schedule events. (Believe it or not, this will be my fifth year teaching). I hope to see you soon!

 

One of the themes I develop in Unraveled focuses on how the ACA’s elimination of limits on spending, combined with the never-ending series of special signup periods, have allowed people to utilize huge amounts of health care in a very short time, and cancel coverage when they’re done.

The New York Times today provides some examples:

Highmark defended its request by saying it was paying out more in claims than it was receiving in premiums. Jeff Scheib, the vice president in charge of actuarial services at Highmark, offered a statistic to illustrate the problem. Continue reading the main story “There were close to 250 individual A.C.A. policyholders in Pennsylvania who incurred over $100,000 each in claims and then canceled coverage before the end of the year,” Mr. Scheib testified. “This behavior drives up the cost to insure the entire pool, because people use insurance benefits and then discontinue paying for coverage once their individual health care needs have been temporarily met.” ….

At a hearing in Helena, Mont., Monica J. Lindeen, the state insurance commissioner, asked Blue Cross and Blue Shield why it was seeking an average rate increase of 62 percent for 2017, after receiving an increase of 22 percent this year.

“Cost is what’s really driving our rate increases,” said Michael E. Frank, the president of Blue Cross and Blue Shield of Montana.

“For every dollar we brought in last year, we paid out $1.26 for medical care,” Mr. Frank said. “In the first six months of this year, we have already paid $4.17 million in medical costs for the top 10 individuals. That’s $70,000 a month for those individuals.”

As we move towards the fall, when rates are finalized, I will be writing much more about this topic. The greatest threat to the ACA is no longer the Republican Party, or the Supreme Court, but the law itself. Now that it has survived the first two chapters in this trilogy, Obamacare will have to stand on its own feet.

Over the next month, the New York Times will release a six-part series on “the sweeping change that President Obama brought to the nation, and how the presidency changed him.” Part I focuses on Obama as the regulator in chief. I encourage you to read the entire piece, as it is thorough compilation of many of the themes I’ve developed since this blog launched in 2009. But I want to draw attention to one paragraph that embodies the largest misconceptions about our age of gridlocked government.

The new rules built on the legislative victories Mr. Obama won during his first two years in office. Those laws — the Affordable Care Act, the Dodd-Frank Act and the $800 billion economic stimulus package — transformed the nation’s health care system, curbed the ambitions of the big banks and injected financial support into a creaky economy. But as Republicans increased their control of Capitol Hill, Mr. Obama’s deep frustration with congressional opposition led to a new approach: He gradually embraced a president’s power to act unilaterally.

What’s wrong with this passage? This sentiment has been repeated so many times that it must be true, right? The conventional narrative is wrong. For starters, the authors write “Republicans increased their control of Capitol Hill” as if there was some sort of hostile invasion. Rather, every year the President was in office, Democrats lost control of federal and state offices nationwide. The President’s policies were rejected the electorate. The only reason why Dodd-Frank and the ACA could pass was due to the sixty-vote bloc in the Senate. Since Democrats lost the filibuster-proof majority in the Senate, the President’s legislative agenda has gone nowhere. And that’s why the President has had to turn to executive power. The Times offered this quote which sums up the dynamics quite well.

“It’s certainly true that we learned by about the third year that the answer to every challenge isn’t going to be legislative,” said Cecilia Muñoz, now director of Mr. Obama’s Domestic Policy Council.

This is largely the theme of my forthcoming piece in the Harvard Law Review, Gridlock.

But there is another cost to using executive action as a countermeasure to gridlock–it stultifies that intransigence. Here is a preview of the Epilogue of Unraveled:

Beyond forgoing opportunities to advance other legislative agendas – such as immigration or environmental reform – the decision to force the ACA on a party-line vote was a contributing factor to the stultifying gridlock during the final six years of the Obama presidency. The “one-term president” com- ment was indeed made by Senator Mitch McConnell, but not in early 2009. Rather, he said it on the eve of the midterm elections in October 2010, six months after the ACA passed. McConnell linked his opposition to Obama’s re-election with the GOP’s goal of eliminating Obamacare. “If our primary legislative goals are to repeal and replace the health [care] bill,” he said, “the only way to do all these things it is to put someone in the White House who won’t veto any of these things.”

In July 2016, President Obama lamented the “hyperpartisanship” surrounding healthcare reform. He wrote that “through inadequate funding, opposition to routine technical corrections, excessive oversight, and relent- less litigation, Republicans undermined ACA implementation efforts.”7 The President’s criticism is well-founded, but ignores his own role in institutionalizing this gridlock. It was hubristic to think that after enacting a monumental law, without any bipartisan buy-in, opponents would simply fall in line. As history played out, Republicans had no problem undermining a law they had no part in enacting and felt no attachment to. Senator Max Baucus, chairman of the Finance Committee that drafted the healthcare bill, “fret[ted]” about the ACA’s origin. “It is my belief,” he said in December 2013, “that for major legislation to be durable, sustainable, it has to be bipartisan. I mean, one party can’t jam legislation down the other party’s throat. It leaves a bitter taste.”8

The article closes with a quote from then-Professor Elena Kagan:

“We live in an era of presidential administration,” Elena Kagan, a Harvard law professor since appointed by Mr. Obama to the Supreme Court, wrote in a 2001 paper that reviewed the expansion of the regulatory state.

Both Mrs. Clinton and Mr. Trump would most likely face significant congressional opposition to their major campaign promises. To sidestep Congress, they now have the legacy of Mr. Obama. Mr. Podesta, now Mrs. Clinton’s campaign chairman, said the appeal of taking action without Congress is hard to resist.

My next article, which should be ready by the end of this month, challenges the core of Kagan’s article that courts should give greater deference to actions undertaken by high-level executive branch officials. I contend at a minimum, such actions are not entitled to more deference, and in reality, should warrant greater skepticism. It is titled, Presidential Maladministration.