Anthony Kennedy Is Considering Retirement

CNN is reporting that sources close to 80-year-old Supreme Court Justice Anthony Kennedy are saying that Kennedy is mulling retirement, possibly even this year. Kennedy is the swing justice on many cases that pit the Court's four liberals against the four conservatives. In this respect, Kennedy has more influence on public policy than anyone except the president. And, given the general ineffectiveness of the current president, not to mention the fact that SCOTUS decisions can echo for decades (or more), he may actually have more influence.

In the landmark Obergefell v. Hodges case, which legalized same-sex marriage, Kennedy was the swing vote, making him a hero to liberals. He was also the key vote that overturned a challenge to Roe v. Wade in 1992. On other cases, however, he has sided with the conservatives. For example, he wrote the decision in Citizens United v. FEC, which opened the door to unlimited contributions to political campaigns. He also was the key vote in the 2000 5-to-4 decision to stop the vote counting in Florida and put George W. Bush in the White House.

If Kennedy were to hang up his robe, Donald Trump would get to nominate his successor and, with Republican control of the Senate, that nominee would almost certainly be approved. If Trump were to pick a rock-solid conservative like Neil Gorsuch, conservatives would control the Court for a generation or more. (V)

Problems with the ACA Repeal, Part I: GOP Governors

Governors can't vote on the health-care bill introduced in the Senate last week, but they can sure lobby their senators on it. No Republican senator wants to be in a situation in which the Republican governor of his state is very vocally and strongly against the bill and describing the pain it will inflict on the state's residents and then voting for it anyway.

The strong opposition of Gov. Brian Sandoval (R-NV) is no doubt one of the reasons Sen. Dean Heller (R-NV) came out against the bill last week (his own reelection being another one, of course). But this scenario is also playing out in other states as well. Gov. John Kasich (R-OH) is also strongly against the bill and is leaning hard on Sen. Rob Portman (R-OH) to vote against it. Also, Gov. Doug Ducey (R-AZ) is pressing both of Arizona's senators to vote "nay." Needless to say, if a Republican governor campaigns strongly against the bill and then one or both of the state's senators vote for it, there is going to be some friction at home, with the governor blaming the senator(s) for the thousands of state residents who will lose their health care. (V)

Problems with the ACA Repeal, Part II: The Opioid Crisis

Recalcitrant Republican governors aren't the only threat to the Senate's health-care bill. Another one is the opioid epidemic, which killed more Americans in 2016 (62,000) than the entire Vietnam War did (58,000). The Senate health-care bill allocates $2 billion to dealing with the opioid crisis, but at least two senators, Rob Portman and Shelley Moore Capito (R-WV) want the funding to be at least $45 billion, though public-health experts say even that isn't nearly enough.

Majority Leader Mitch McConnell (R-KY) cannot afford to lose Portman and Capito over this issue, since half a dozen other senators have problems with the bill as well. But he can't just buy Portman and Capito off by throwing money at the problem, because $43 billion is serious money and it has to come from somewhere. One source would be not eliminating all the taxes the ACA imposed on wealthy individuals, but since getting rid of these taxes is the whole point of the exercise for many Republicans, that won't fly. (V)

Problems with the ACA Repeal, Part III: Planned Parenthood

Opioids are not the only potential deal-breaker that Mitch McConnell has to deal with, of course. The other potentially incontrovertible issue is Planned Parenthood, which the senators who are moderate and/or female generally want to keep, and the senators who are conservative generally want to kill.

The problem here is that this is one of the handful of deal-breaker issues in American politics. Generally speaking, people in the U.S. are not single-issue voters, but this is one where many are (along with Israel, Social Security, climate change, and perhaps a couple of others). If Sen. Ted Cruz (R-TX) or Sen. Mike Lee (R-UT) backs down on Planned Parenthood, it won't be a momentary setback, or a moderate-level campaign issue. It will haunt them for the rest of their days in office, even if they vote a pro-life line the other 99% of the time. Cruz still sees a future U.S. president when he looks in the mirror. If he doesn't come through here, the evangelicals will be done with him, and that's the end of that. The moderates have the same problem, albeit in the opposite direction. If Susan Collins (R-ME) or Lisa Murkowski (R-AK) turns her back on Planned Parenthood, they will lose some female and/or moderate voters forever. Given the quirky nature of politics in their respective home states, that could be fatal to their re-election bids (in 2020 and 2022, respectively). In short, although Dean Heller would be the one most obviously risking political suicide by voting for Mitch McConnell's bill, a fair number of his colleagues may not be far behind. Which could mean, in turn, that no compromise is possible. (Z)

Problems with the ACA Repeal, Part IV: Elizabeth MacDonough

As long as we're examining the biggest hurdles that the Senate Majority Leader and his colleagues have to overcome, let's also make sure to mention Senate Parliamentarian Elizabeth MacDonough, who is in competition with Acting Solicitor General Jeffrey B. Wall for the title of "most powerful person in Washington that 99% of Americans have never heard of." Since the GOP does not have a filibuster-proof majority in the Senate, they have chosen to get their health care law through that body by using budget reconciliation. The good news for them is that reconciliation requires only the votes of 50 senators plus the vote of President of the Senate Mike Pence. The bad news is that it can be used only for items that substantively impact the federal budget (and even then, under some pretty strict limitations, which are outlined in the linked article).

This is where MacDonough comes in. A lawyer by training, it will eventually fall to her to meet with a gaggle of Democratic and Republican lawyers to review the AHCA (House) or the BCRA (Senate) or the reconciled hybrid of both bills. There are many nuances and subtleties in play, but the short version is that anything that MacDonough believes is a policy issue and not a substantive budget issue would be ruled out of order, and would not be passable using reconciliation. That could include provisions that allow states to opt out of Obamacare regulations, that defund Planned Parenthood, or that change the amount that insurers can charge, among others. And depending on what MacDonough rules out of order, it could throw the GOP's whole plan into jeopardy. For example, if the government slashes subsidies for insurers (probably allowable under reconciliation), but insurance companies are not allowed to charge more or to reduce coverage (probably not allowed), it could trigger the dreaded "death spiral" in one or more state insurance markets. Similarly, if she decides that defunding Planned Parenthood is more a policy issue than a budgetary one, it could cause conservatives to jump ship (see above).

Mitch McConnell does have some options for dealing with the MacDonough problem, but they aren't very good ones. One possibility is that he could fire her and replace her with a new parliamentarian. At best, this would look very bad, since MacDonough has been repeatedly praised from both sides of the aisle for being a fair and impartial arbiter. At worst it might not solve his problem, since the new parliamentarian might reach the exact same conclusions. Another possibility is that McConnell could go "nuclear" again, and abolish the legislative filibuster. This would be great for him in the short term, but he knows that once the legislative filibuster is gone, it's not coming back, and one of these days, the Democrats will again control the government. While Donald Trump tends to think only about 10 minutes ahead, McConnell is much more of a long-range thinker.

In short, McConnell probably needs to just hope that his lawyers are particularly effective at winning MacDonough over to their point of view. (Z)

Problems with the ACA Repeal, Part V: Death

And, finally, let's conclude this sequence with the grimmest issue of them all: The Obamacare replacement, if it becomes law, will cause people to die needlessly. That is inarguable, the incontrovertible consequence of millions of people being unable to afford or access healthcare.

Thus far, the Democrat who has made this point most forcefully is Hillary Clinton, who borrowed a line from the Center for American Progress when she tweeted:

Forget death panels. If Republicans pass this bill, they're the death party. https://t.co/jCStfOaBjy

— Hillary Clinton (@HillaryClinton) June 23, 2017

Hillary Clinton is probably not the best messenger here, given that she's still pretty unpopular. And the whole "death party" bit is a little hamfisted. But, as her reference to Sarah Palin's "death panels" line makes clear, this is a very potent line of attack if the Democrats approach it properly. Certainly better than constantly calling the new health care bill "mean."

Sometime soon, maybe Monday, the CBO will announce the financial costs of the BCRA, and will also tell us how many people will lose insurance under the plan (presumably, somewhere in the realm of 20 million). That information alone will be a useful cudgel for the Democrats to wield. But if DNC chair Tom Perez is smart, he will find a way to take it a little further, and would get a credible estimate of exactly how many people would die prematurely should the Obamacare replacement become law. As it so happens, there are people who do these exact calculations for a living—actuaries. If Democrats were able to deploy a talking point along the lines of, "The Society of Actuaries estimates that 2.7 million people with treatable conditions will not be with us in 10 years if the Obamacare replacement becomes law. Will you or your loved ones be among the unlucky ones?" then it could put Sarah Palin's death panels to shame. This is not likely to happen, of course, but even Hillary's "death party" line could make a real dent, particularly if the blue team repeats it enough.

Despite all these hurdles, don't count Mitch McConnell out. He is a master tactician and plays the game better than anyone else in Washington. If he has to, he will try to get recalcitrant senators on board with a bill they don't entirely like by offering them something sweet that is unrelated to the bill ("Hey, I talked to Charlie Koch yesterday and he said dropping $5 million in your PAC wouldn't be a problem at all"). (Z)

Trump Proposes Welfare Ban for Immigrants

Prospects are not good for the Muslim ban v2.0, or for the border wall. And while the Trump administration has been deporting people at a brisk rate, that's not really the kind of concrete accomplishment that lends itself to photo-ops, and bragging, and tweets, and the like. Thus, the President is searching for something he can actually enact so that he can point to it and tell supporters he has delivered on his anti-immigration promises. During his campaign rally in Iowa on Wednesday, The Donald floated a possible idea:

I believe the time has come for new immigration rules which say those seeking admission into our country must be able to support themselves financially and should not use welfare for a period of at least five years.

This proposal pleased the crowd, which responded with a thunderous round of applause. So, as a political matter, Trump may be on to something here.

There is one small problem, however. This idea is not new, having been around for decades. And the reason it has been around for decades is that it was proposed by Trump's best bud Newt Gingrich in 1996 and signed into law that same year by Bill Clinton. So, it's not so much that the "time has come" for immigrants to support themselves, it's that the time already came about 20 years ago. Back to the drawing board, it would seem. (Z)

FBI Is Investigating Jane and Bernie Sanders

Until she was forced out by the board, the wife of Sen. Bernie Sanders (I-VT), Jane O'Meara Sanders, worked at Burlington College. The college was nontraditional and had a rocky history. In 2004, Sanders became president and tried to turn the school around. In 2010, she had a plan to buy the last 33 acres of undeveloped real estate along Lake Champlain from the Roman Catholic Church, which needed the money to settle more than two dozen sexual abuse lawsuits. The agreed-on purchase price was $10 million.

The school didn't have $10 million, so it borrowed it. When the first repayment was due, the money wasn't there to pay. The college's board forced her out in 2011. Then things went from bad to worse, and in 2016, the college closed its doors after 44 years of operation.

That isn't the end of the story, though. In 2016, Brady Toensing, an attorney who chaired Donald Trump's campaign in Vermont, wrote a letter to the FBI alleging that Bernie Sanders pressured the bank that made the loan to Burlington College to do so. At the very least, this would be quite unethical, if the charge is true. The FBI is still investigating, but the real crunch will come when Trump nominates a U.S. Attorney for Vermont. Sen. Patrick Leahy (D-VT) and Gov. Phil Scott (R-VT) have recommended that Trump choose Assistant U.S. Attorney Christina Nolan. However, given Trump's strong desire to reward his supporters and punish his enemies, a possible candidate is...Brady Toensing, who would surely have a pretty good idea of the first case he might pursue. Jane Sanders has hired lawyer Rich Cassidy to represent her. Politico has a detailed story on the whole matter. (V)

Email a link to a friend or share:

---The Votemaster and Zenger