Passing Losses On

“Take care to sell your horse before he dies. The art of life is passing losses on.”

Robert Frost said that. That’s all anyone remembers of his short 1946 comic poem “The Ingenuities of Debt” – but that’s not ingenious. That’s common sense, said ingeniously. You can’t sell what died on you, pretending it’s still alive. You can’t sell an idea that was once a wonderful idea but turned out to be really dumb. That’s now a dead idea. Sell the idea before it dies – that war in Iraq – and then move on. Stick someone else with the consequences. Pass the losses on. Wash your hands of the whole thing. Did I say that was a good idea? You must be thinking of someone else. That horse died long ago.

In 1961, Ronald Reagan argued that Medicare would end all freedom in America – but he was fine with it when he became president in 1980 – and no Republicans reminded him of what he had once said about it. They have talked about protecting and strengthening Medicare. Sure, they always propose cutting benefits and payments to doctors and hospitals, but they say that’s to “save” the program. They’re not dumb.

And there’s what President Eisenhower wrote to his brother in 1954:

Should any political party attempt to abolish social security unemployment insurance and eliminate labor laws and farm programs you would not hear of that party again in our political history. There is a tiny splinter group of course that believes you can do these things. Among them are a few other Texas oil millionaires and an occasional politician or businessman from other areas. Their number is negligible and they are stupid.

Eisenhower would never say that in public. He was a Republican. But he knew dead ideas when he saw them. Those ideas died in the thirties. His party sometimes made him grumpy.

And now the issue is Obamacare:

A federal judge’s ruling that the Obama health law is unconstitutional has landed like a stink bomb among Republicans, who’ve seen the politics of health care flip as Americans increasingly value the overhaul’s core parts, including protections for pre-existing medical conditions and Medicaid for more low-income people.

Perhaps an Associated Press wire story shouldn’t use the term “stink bomb” but that’s what this was, a late Friday afternoon bombshell, even if nothing changed:

While the decision by the Republican-appointed judge in Texas was sweeping, it has little immediate practical impact because the Affordable Care Act remains in place while the legal battle continues, possibly to the Supreme Court., the government’s site for signing up, was taking applications Saturday, the deadline in most states for enrolling for coverage next year, and those benefits will take effect as scheduled Jan. 1. Medicaid expansion will proceed in Virginia, one of the latest states to accept that option. Employers will still be required to cover the young adult children of workers, and Medicare recipients will still get discounted prescription drugs.

That didn’t help that much:

Republicans, still stinging from their loss of the House in the midterm elections, are facing a fresh political quandary after U.S. District Judge Reed O’Connor said the entire 2010 health law was invalid. Warnings about the Texas lawsuit were part of the political narrative behind Democrats’ electoral gains. Health care was the top issue for about one-fourth of voters in the November election, ahead of immigration and jobs and the economy, according to VoteCast, a nationwide survey for The Associated Press. Those most concerned with health care supported Democrats overwhelmingly.

That idea, that Obamacare was evil, was dead. That was the Republicans’ dead horse in this case, the one they should have sold long ago. They didn’t pass their losses on, but one guy was happy:

“On the assumption that the Supreme Court upholds, we will get great, great health care for our people,” President Donald Trump told reporters during a visit Saturday to Arlington National Cemetery. “We’ll have to sit down with the Democrats to do it, but I’m sure they want to do it also.”

He may be wrong about who wants to do what, and no one else was happy:

Economist Gail Wilensky, who oversaw the Medicare program for President George H. W. Bush, said the state attorneys general from GOP strongholds who filed the lawsuit really weren’t very considerate of their fellow Republicans.

“The fact that they could cause their fellow Republicans harm did not seem to bother them,” said Wilensky, a critic of President Barack Obama’s signature domestic achievement.

“The people who raised it are a bunch of guys who don’t have serious election issues, mostly from states where saber-rattling against the ACA is fine,” she added. “How many elections do you have to get battered before you find another issue?”

Wilensky hates Obamacare but she knows all about passing losses on, and she wasn’t alone:

Douglas Holtz-Eakin, top policy adviser to Republican John McCain’s 2008 presidential campaign, said he was struck by the relative silence from top Republicans after the ruling issued.

A prominent example: “The House was not party to this suit, and we are reviewing the ruling and its impact,” said AshLee Strong, spokeswoman for House Speaker Paul Ryan, R-Wis.

Republicans are “going to have to figure out what to do,” Holtz-Eakin said. “If it’s invalidated by the courts, it’s not ‘We’re going to do it our way.’ They’re going to have to get together with the Democrats in the House.”

They’re going to have to get together with each other too:

The GOP’s failed effort last year to repeal the law showed there’s no consensus within the party itself.

Trump tweeted Friday night that “Congress must pass a STRONG law that provides GREAT healthcare and protects pre-existing conditions.”

“Get it done!” he told Senate Majority Leader Mitch McConnell, R-Ky., and Rep. Nancy Pelosi, D-Calif., who is expected to be speaker in January.

But Trump had no plan of his own to offer in the 2017 “repeal and replace” debate.

So there was this:

The chairman of the House Ways and Means Committee, Rep. Kevin Brady, R-Texas, said that if the law is ultimately overturned, then members of Congress from both parties should start over, working together. He urged maintaining provisions such as protections for pre-existing medical conditions, no lifetime dollar limits on insurance coverage, and allowing young adults to stay on parental coverage until age 26.

Let’s start over and create the same thing? Why? Just rename the Affordable Care Act. Call it the Reasonably Priced Heath Maintenance Act and refer to it as Trump Treats, not Obamacare. No one will mind. But don’t mess with it. This judge was foolish.

The Washington Post’s Devlin Barrett reports on that:

A federal judge’s ruling declaring the entire Affordable Care Act invalid came under harsh attack Saturday from legal analysts who predicted higher courts will reject the rationale as a tortured effort to rewrite not just the law but congressional history.

It was a tortured effort:

The 55-page ruling late Friday from U.S. District Judge Reed O’Connor found the law invalid on the basis of the political and legal history of a few key provisions. O’Connor decided that once Congress repealed the tax penalty that enforced a mandate that most Americans get health insurance, the whole law became invalid.

Don’t count on it:

The political and legal fights surrounding the ACA tend to focus on the mandate and the requirement that insurance companies provide coverage to people with preexisting medical conditions. The 2,000-page law, however, covers a vast array of other health-care issues, touching almost every part of the health-care industry in the United States.

For that reason, if the ruling were to take effect, it could create major disruptions across the U.S. health-care system – affecting which drugs patients can buy, preventive services for older Americans, the expansion of Medicaid in most states and the structure of the Indian Health Service.

“There’s really no American that’s not affected by this law,” said Yale law professor Abbe Gluck, who filed an amicus brief with other lawyers in the Texas case.

Those are the practical considerations, but there is law too:

The judge’s ruling, she said, flouts settled legal doctrine and places key acts of Congress in reverse order.

By ignoring that Congress specifically declined to strike down the ACA in 2017 when it chose to alter only one portion of the bill, she said, the judge decreed that the 2010 Congress, which first passed the law, has more authority than the same legislative body in 2017.

“It’s absolutely ludicrous to hold that we do not know whether the 2017 Congress would have wanted the rest of the ACA to exist without an enforceable mandate, because the 2017 Congress did exactly that when it zeroed out the mandate and left the rest of the ACA standing,” Gluck said. “He effectively repealed the entire Affordable Care Act when the 2017 Congress decided NOT to do so.”

There is that, and general confusion:

President Trump and other Republicans have sent mixed signals on the ACA – asking the judge to end protections for people with preexisting conditions but insisting during the midterm elections that they would preserve those protections, and accusing Democrats of undermining them.

And now no one is happy:

Legal scholars who support the ACA quickly denounced the judge’s ruling; conservative lawyers also criticized it.

Ted Frank, a lawyer at the Competitive Enterprise Institute who is critical of the ACA, called the decision “embarrassingly bad” because “you’re twisting yourself into knots” to reach a particular conclusion.

Over the past two years, Frank said, he and other conservative lawyers have complained when district court judges did similar intellectual gymnastics to attack Trump administration initiatives. “It’s not appropriate in the other direction, either,” he said.

So this is going nowhere:

Nicholas Bagley, a University of Michigan law professor, predicted “a long slog” while the courts wrestle with O’Connor’s decision.

“I think this case is frivolous, and I think the judge’s opinion is about as naked a piece of judicial activism as I have ever seen; I don’t even think it is close,” said Bagley, who supports the ACA. “Like any lawsuit, you should take it seriously, but I don’t think this is an imminent or mortal threat to the Affordable Care Act.”

But it’s still there, and Matthew Yglesias adds this:

The Affordable Care Act was legitimized in the American political system three separate times. First, it was passed by two houses of Congress and signed into law by Barack Obama. Second, the Supreme Court ruled that contrary to conservative legal theories the individual mandate was a legitimate use of congress’ authority to tax. Third and most important, when congress considered Affordable Care Act repeal in 2017 they ultimately wouldn’t go for it.

Crucially, the kind of massive rollback of Medicaid that Paul Ryan said he’d been “dreaming of” since he was in college “drinking out of kegs” was a nonstarter in the Senate where many Republicans represented states that had benefitted from Medicaid expansion. So they ended up instead putting together a narrower “skinny” repeal bill that came close to passing but ultimately failed due to three GOP defections.

Then months later, with repeal having fallen by the wayside, Republicans passed a tax bill whose main purpose was to cut rich people’s taxes but which also reduced the mandate penalty to $0. Presumably if Republicans had wanted to vote for a bill that also repealed the ACA’s Medicaid expansion, rescinded its exchange subsidies, and undid its suite of regulatory changes they would have written a bill like that.

But they considered a bunch of bills that would have done some of those things back in 2017 and the senate rejected them. What they did instead was the tax bill.

That means that there’s a strange legal theory at play here:

Congress – having considered repeal and rejected it – then repealed the whole bill a few months later – by accident. Whoops!

The idea of striking down a law in this way is almost comically undemocratic.

And that, as Yglesias argues, is not Trump’s signature populism:

Trump has many of the mannerisms and much of the style of a plebiscitary dictator who wields demagogic rhetoric to turn the crowd against liberal institutions. But in a real world sense, Trump and his political allies are unpopular and people keep voting against them. They nevertheless wield vast political power, however, precisely because of institutions. The Electoral College, gerrymandering, and the maldistribution of senate seats allow the GOP to enjoy political power that’s disproportionate to their voting support. A tight-knit group of Federalist Society lawyers and judges allow conservatives to advance policy ideas that lack public support through the judiciary. When in doubt, they fib and hope Fox News will help them muddy the waters.

The case will, of course, wend its way up to higher courts where hopefully cooler, more humane heads will prevail. But whether they prevail depends not just on the law but on the political context. The rhetoric and practice of actual majoritarian populism – rather than simply assuming Chief Justice Roberts will do the right thing – is critical in moments like this.

That would mean that it’s time for someone to move on. You can’t sell a dead idea, but there is that other big deal idea too:

The White House and Democratic congressional leaders are at an impasse over negotiations to avoid a partial shutdown of the federal government at the end of the week, with both sides unwilling to budge from their positions on President Trump’s proposed border wall.

White House senior adviser Stephen Miller said Sunday that the administration would do “whatever is necessary to build the border wall,” including shutting down the government, even as polling suggests most Americans want Trump to compromise with Congress on the issue.

“This is a very fundamental issue,” said Miller, who has pushed to severely curtail immigration to the United States, on CBS’s Face the Nation. “At stake is the question of whether or not the United States remains a sovereign country.”

Others aren’t that worked up:

The White House has demanded $5 billion to partially pay for a wall along the Mexican border, a key campaign promise the Trump administration has yet to fulfill. Congressional Democrats have rejected that request, arguing the wall is wasteful and ineffective.

Border security is not an issue. That’s sensible, but the wall is a dead idea, as is the thought that a government shutdown is a good idea:

An NPR/PBS NewsHour/Marist Poll released earlier this month found 57 percent of the country wants Trump to “compromise on the border wall to prevent gridlock,” while 36 percent say he should not compromise on the wall “even if it means a government shutdown.”

That thirty-six percent may have to be ignored. Their number is negligible and they are stupid, as Eisenhower would say, so ignore them:

Congressional Republicans had been scrambling to find an alternative that would avoid a shutdown – such as a short-term funding measure to keep the government open for two or three more weeks. But the White House has signaled it wouldn’t support such a resolution, making it much more likely that spending for the government will lapse.

Even among Republican lawmakers, Trump’s wall proposal does not have universal support. When he said last week that he was willing to shut down part of the government over border security, some leading GOP lawmakers distanced themselves from his position.

Despite some backing for the wall among House Republicans, it was unclear whether Trump’s plan would even have enough votes to pass the GOP-controlled chamber.

He won’t get his wall, and he shouldn’t get his shutdown:

The consequences of a partial shutdown could ripple broadly across the U.S. economy, although economists caution that it would probably have to last more than a few days to drag on consumer spending.

“For businesses and consumers to cut back their spending, it would have to be an extended shutdown,” said Chris Rupkey, chief financial economist at MUFG. “We’ve seen this movie too many times.”

The shutdown could leave about a quarter of the government, as well as one-third of federal workers, without funding as the holidays approach. Federal agencies and senior officials are already beginning to prepare for that possibility.

And that may happen:

Senate Democratic leaders signaled Sunday they were not budging from their negotiating position of providing $1.3 billion for border security – and they called on Trump to yield in his demands for $5 billion for the wall.

“President Trump should understand – there are not the votes for the wall, in the House or the Senate. He is not going to get the wall in any form,” Senate Minority Leader Charles E. Schumer (D-N.Y.) said on NBC’s “Meet the Press.”

Schumer added that Trump “shouldn’t use innocent workers as hostage for his temper tantrum to sort of throw a bone to his base.”

And that doesn’t have to happen:

A top GOP senator voiced hope that a shutdown could be averted – contrasting with the hardline position Trump and Miller have taken. Sen. John Barrasso (R-Wyo.) said both short- and longer-term spending bills were possible but did not offer details of what a compromise that could please both sides should look like.

“There are people working on this to get to a conclusion so the government will remain open, which is what I believe the American people would prefer,” he said on “Face the Nation.”

Barrasso also emphasized that there are many means of securing the border that don’t amount to the kind of wall on which Trump has insisted.

“There are a lot of things you need to do with border security,” he said. “One is a physical barrier, but also the technology, the manpower, the enforcement, all of those things, and our current laws are in some ways an incentive for people to come to this country illegally, and they go through great risk and possibly great harm.”

No, Trump wants his wall. He didn’t take care to sell that horse before it died. But it did die, along with the idea that Obamacare is evil. There’s nothing left to sell. Let them both go. The art of life is passing losses on. Perhaps the nation can do that with this odd president too.


About Alan

The editor is a former systems manager for a large California-based HMO, and a former senior systems manager for Northrop, Hughes-Raytheon, Computer Sciences Corporation, Perot Systems and other such organizations. One position was managing the financial and payroll systems for a large hospital chain. And somewhere in there was a two-year stint in Canada running the systems shop at a General Motors locomotive factory - in London, Ontario. That explains Canadian matters scattered through these pages. Otherwise, think large-scale HR, payroll, financial and manufacturing systems. A résumé is available if you wish. The editor has a graduate degree in Eighteenth-Century British Literature from Duke University where he was a National Woodrow Wilson Fellow, and taught English and music in upstate New York in the seventies, and then in the early eighties moved to California and left teaching. The editor currently resides in Hollywood California, a block north of the Sunset Strip.
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1 Response to Passing Losses On

  1. Rick Brown says:

    I confess, Obamacare has always been confusing to me but I suspect it’s even more confusing to Republicans, who don’t seem to understand that when ACA was being devised, the planners came up with pieces that all fit together in such a way that, if you take away any one of the parts, the plan falls apart.

    For example, those planners knew they could always insist that insurance companies cover pre-existing conditions, but they also knew they couldn’t do that unless they allowed those companies to make enough money to pay for it. And that’s why they came up with a mandate that said everybody had to have insurance or else pay a penalty (originally a “fine”, but eventually, a “tax”) to cover it.

    So the Republicans, who are apparently not as good with money as everyone seems to think they are, ZERO OUT the penalty for the mandate, yet still insist on keeping the pre-existing conditions that the mandates pay for!

    And then some conservative judge comes along with his long-awaited ruling on a lawsuit filed by a number of state attorneys general. Here’s the background from the Wall Street Journal’s own reaction to his ruling:

    Recall that Chief Justice John Roberts joined four Justices to say ObamaCare’s mandate was illegal as a command to individuals to buy insurance under the Commerce Clause. “The Framers gave Congress the power to regulate commerce, not to compel it,” he wrote.

    Yet the Chief famously salvaged ObamaCare by unilaterally rewriting the mandate to be a “tax” that was within Congress’s power. Never mind that Democrats had expressly said the penalty was not a tax. Majority Leader Roberts declared it to be so.

    Enter Texas Attorney General Ken Paxton, who argues in Texas v. U.S. that since Congress has repealed the mandate, the tax is no longer a tax, and ObamaCare is thus illegal. Judge O’Connor agreed with that logic, and he went further in ruling that since Congress said the mandate is crucial to the structure of ObamaCare, then all of ObamaCare must fall along with the mandate.

    Okay, but think about this and tell me where I’m wrong:

    Since Roberts’ “tax” solution was in response only to whether we can “fine” somebody for not buying insurance, and since the Republicans zeroed out that fine/tax to nothing, then where’s the problem to which the word “tax” is the solution? Because of the fact that there’s no longer teeth in the mandate, there’s no longer any compulsion here, which is what brought up the question of constitutionality.

    Or am I missing something?

    On the other hand, the actual problem we’re left with seems to be that, without the “stick” with which to hit people who refuse to buy insurance, making sure most every American is in the pool, where will insurance companies find the money to pay for all this stuff?

    So no, you blockheads, ending the mandate didn’t make the Affordable Care Act unconstitutional, it just made the Affordable Care Act un-fucking-affordable!

    Or did it? Maybe not.

    According to Andrew Sprung at HealthInsurance.Org, who wrote “The GOP is still coming after your ACA coverage (whether you have a pre-existing condition or not)” back in September before the ruling of this past weekend:

    The [State Attorneys General’s] suit ignores the fact that the current Republican Congress deliberately zeroed out the penalty while not repealing the ACA, reflecting learned experience that ACA subsidies are enough to keep the ACA private plan marketplace functioning, albeit in impaired fashion, no matter what measures (other than repeal) Republicans take to sabotage it.

    In other words, maybe those subsidies called for by Obamacare will be enough to continue paying for coverage of pre-existing conditions?

    I do hope so, but I must admit I’m not greatly encouraged by any argument that rests of the “learned experience” of a gaggle of random Republican Congressmen.

    * * * * *

    But while I got you, let me change the subject to the upcoming “Trump Shutdown” of the government to pay for his stupid wall.

    Will there be a shutdown? I don’t know, but I do predict that he will fail to get his wall, and yet will still claim he succeeded.

    So you have Stephen Miller saying that the administration would do “whatever is necessary to build the border wall,” and I’m thinking, “Anything at all that’s necessary?”

    How about maybe rallying all those few Americans in favor of your wall, to roll up their sleeves, “put on overalls, bring hammers and saws and spare bricks and lumber and barbed-wire and whatnot, and meet us at the border, ready to put your sweat equity where your mouth is!”

    “(Oh, yeah, and don’t forget to bring money!”)


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