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Extreme Vetting: Time’s Up

In December 2015, Republican primary candidate Donald Trump called for a “total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what the hell is going on.” The statement roused support from many voters, but concern from others. As a general election candidate in August 2016, in what was seen as an attempt to alleviate the concern without softening the support, Trump promised to implement “extreme vetting” procedures to keep out radical Islamists and their sympathizers.

One week into his presidency, Donald Trump issued Executive Order 13769, his first attempt to implement the anti-Muslim measures he had promised as a candidate. The executive order imposed a 90-day suspension on entry into the United States by nationals of seven countries – Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. The order imposed a 120-day suspension on all refugee admissions. And the order imposed an open-ended suspension on admission of refugees from Syria.

By then Trump knew not to call his order a “Muslim ban,” but several federal trial courts saw through the ruse and barred enforcement of the executive order’s provisions that suspended entry into the United States. On February 9, 2017, a federal court of appeals rejected Trump’s request for an emergency ruling allowing the executive order to remain in effect. A week later, the Trump administration notified the court of appeals that it intended to replace Executive Order 13769 with a revised order.

The Trump administration gave a lot more deliberation to revising the original order than it had given to writing the first one, which had been drafted without meaningful interagency input and had been issued without meaningful notice to immigration officials. The replacement order was issued on March 6, 2017, and it reflected a much greater level of attention to the factual and legal complexities involved in immigration. And whereas the first executive order was effective upon its issuance, the new executive order, Executive Order 13780, was to be effective ten days after its issuance, on March 16, to give immigration officials time to prepare for implementation and enforcement. There were many changes from the first to the second executive order, perhaps the best known being the omission of Iraq from the list of suspended countries based on concerns about how the Iraq ban might impair relations with that such an important military ally.

But despite the revisions, the new executive order remained, in intent and in effect, delivery on Trump’s campaign promise to ban Muslim immigration. A federal trial court in Hawaii broadly enjoined the critical sections of the new order, and a federal trial court in Maryland issued a narrower injunction. Two federal courts of appeals will hear oral arguments on Trump administration appeals in the two cases on May 15 and May 8, respectively.

Litigation tends to move quite slowly – even what is considered “expedited” litigation, as in these cases, can take many months, if not years, to resolve. Remember that both executive orders imposed 90-day suspensions on non-refugee entries from the specified countries and a 120-day suspension on all refugee entries. The rationale of the suspensions was that the federal government needed that time to ensure that vetting procedures are sufficient to identify and exclude people whose entry would pose a safety risk to Americans – the “extreme vetting” that Candidate Trump promised. The suspensions were presented as an interim step toward the final product, which was to be a new and improved system of enhanced vetting of refugee and visa applicants.

In the first executive order, Trump ordered his Secretary of Homeland Security to “immediately” begin a review and determination of the information needed to effectuate the new “extreme vetting” regimen. The Secretary was to report back within 30 days with a list of countries for which adequate information is not available, and the Secretary of State was then to give those countries 60 days to establish procedures for providing information deemed adequate by the United States. When the 60 days was up, the idea was, nationals from countries that complied would come off the list of banned countries. All of that was to be done by today, April 27, 2017 – 90 days after issuance of the first executive order.

None of the court rulings on Executive Order 13769 enjoined or even questioned the portions of the executive order that called for review and toughening of admissions standards and procedures. Furthermore, since those portions of the executive order constituted nothing more than instructions to the President’s direct subordinates, there was no need for an executive order to carry out that review. Therefore the fact that the first executive order was revoked by the second executive order in no way impeded completion of the contemplated 90-day period for development of “extreme vetting.”

But so far as has been publicly revealed, no 30-day report was issued, no request was made to countries determined to be providing inadequate information, no “extreme vetting” has been implemented, and no country’s suspension has been lifted.

Somewhat incongruously, Executive Order 13780 re-set the clock on both the suspensions and the development of an “extreme vetting” program. Instead of revoking only the portions of Executive Order 13769 that had been enjoined, the new executive order revoked it in entirety. It is as if no progress had been made, no work had been done, to develop the “extreme vetting” process during the 20 days that those portions of Executive Order 13769 were in effect.

Under the new executive order, the new 90-day suspension of non-refugee admissions from the six named countries expires on June 14, 2017, and the 120-day suspension on refugee admissions from all countries expires on July 14, 2017. Again, so far as has been publicly revealed, none of the interim reports called for in the new executive order have been issued. There has been discussion – but so far only discussion – of requiring applicants for admission to turn over their social media accounts to immigration authorities as part of the vetting process. The problems with such a requirement would be numerous, starting with the fact that the clearest and most immediate impact of such a requirement would be the deletion of any radical-sounding content from any social media accounts that applicants might actually have. (Do we seriously imagine that the widowed Syrian mother applying for refugee status after the murder of her husband maintains an active Facebook presence? Do we imagine that, after filing her application, she posts radical propaganda on her Facebook page during the 18 months or so that the existing application system takes?)

What I’m leading up to is that I think the suspension periods were fake, and were intended to be fake. They were not intended as interim steps on the road to extreme vetting, but as an end state unto themselves.

If the Trump administration was going to take 90 days to develop and implement “extreme vetting” procedures for visa-based entry to the U.S., the new procedures would be in place by now. The premise of Trump’s executive orders was that existing entry application procedures are inadequate to protect the safety of Americans, and that the inadequacies were so great and the danger so serious that immediate action was needed to protect us during the short time it would take to develop longer term protections.

Whatever the dangers created by the status quo, those alleged dangers continue unaddressed due to the courts’ injunctions against Trump’s executive orders. Trump’s attempts to contain the imagined threat were enjoined, leaving the supposedly deficient system in place for the indefinite future. Under those circumstances, if the Trump administration truly believed that the existing immigration system posed a serious and imminent threat to American security, the administration would have increased the urgency of its development of new vetting procedures after the injunctions were issued; obviously, the administration did not do so.

If the suspension periods were intended to be suspensions pending development of “extreme vetting” and not more permanent prohibitions, there would have been no need to re-set the “extreme vetting” deadlines in the second executive order. It is as if the 90-day and 120-day suspensions were the lynchpins of the executive orders, not the enhanced vetting that was supposed to come after the suspensions were over. It is as if the intention never was to enhance the vetting, only to reduce Muslim immigration. But then that’s what the courts have said, isn’t it?

Both executive orders expressly contemplated requests that governments make additional information available to American immigration authorities who vet applicants for entry to the United States. There is no way to know what the additional information might be, since the Secretary of Homeland Security has apparently issued neither 30-day report required by either executive order.

The second executive order makes explicit that the information requirements may vary by country. There is every reason to expect that, for countries from which Trump would prefer to have little or no immigration, the information requirements are likely to be considerable, maybe even impossible to satisfy. There is every reason to believe that the requests for additional information would be formulated to ensure non-compliance – either because the host country could not provide the information or because the request for the information would be too insulting to the host country’s rulers or populations.

The object here is not and never was to enhance the safety vetting of our immigration system; vetting is already extreme. The object here is to impair Muslim immigration. So the good news is that the courts have so far stood up to Trump’s gestures toward a Muslim ban, but the bad news is that Trump’s casting of those bans as 90-day and 120-day suspensions pending review of entry procedures was a sham. There was never any intention to resume anything close to previous levels of Muslim immigration, regardless of the particulars of the vetting process. The intention was to foster, and pander to, the popular anti-Muslim impulse that contributed to Trump’s nomination and election. That impulse remains, and Trump will continue to foster and pander to it.

I think the legal odds are against Trump’s executive orders in the appellate arguments scheduled for May 8 and May 15. Regardless, at those arguments and thereafter, judges need to ask some new questions:

If you believe that America is under imminent threat of attack by inadequately vetted immigrants, and if the 90-day and 120-day suspensions were intended to allow time to develop and implement adequate vetting procedures, are those procedures ready?

If they are ready, why are you continuing to fight for the 90-day and 120-day suspensions?

If they are not ready, doesn’t your failure to produce those procedures disprove your claim to believe that inadequate procedures has placed America under imminent threat of attack by inadequately vetted immigrants?


Paying the Piper

The average margin of victory in all of the 2016 elections for the House of Representatives was just over 37 percent. At the extremes, 17 members of the House ran unopposed and won 100 percent of the vote, and 17 were elected by margins of five percent or less.

Mid-term elections usually favor the party that does not hold the White House. This is true even when the president is popular, and Donald Trump is not popular. Three months into his presidency, Trump has consistently posted historically low approval ratings. Gallup’s tracking poll measured a slight up-tick for the President this week – to 40 percent approval. That puts Trump’s approval about half-way between George W. Bush’s 35 percent after Hurricane Katrina and Ronald Reagan’s 46 percent after Iran-Contra.

There is no obvious reason that Trump’s approval ratings should go up all that much in the near term. Military action often raises presidential approval ratings, but neither Trump’s 59-missile strike on a Syrian airbase, nor his mother-of-all-bombings in the Afghan mountains, nor his trash-tweeting of North Korea has done the job. Trump’s key domestic initiatives – Obamacare repeal, tax reform, and infrastructure revitalization – all seem to be dead in the water. Trump’s own supporters are starting to ask when all that winning is going to begin.

Nate Silver at posted a graph correlating presidential approval ratings with mid-term House election results. A party whose president runs a 40 percent approval rating can expect to lose about 40 House seats, with a margin of error just over 30 seats. Although there is a distinct correlation between presidential approval and mid-term election results, the size of the margin of error indicates that the correlation is relatively loose. Lots of other factors come into play – including, obviously, the appeal of the individual candidates.

In February, I commented that four special elections this Spring for House seats vacated by Republicans appointed to Trump’s cabinet will collectively serve as an early indicator for the 2018 mid-terms. As of yesterday, we have results in two of those special elections, and the news for Republicans is bad.

On April 11, Republican Ron Estes beat Democrat James Thompson by less than seven percent of the vote in a special election in Kansas. How is that bad for Republicans? Estes’s predecessor, Mike Pompeo (now the director of the CIA) won the seat by more than 31 percent last November. That means the district voted 24 percent more Democratic than it did just last November.

Voter turn-out is always lower in special elections, and turn-out in the Kansas special election was down by 56 percent. But the decrease was not even across parties – Estes took 62 percent fewer votes than Pompeo did; Thompson’s total was 32 percent lower than Pompeo’s last opponent’s. This “enthusiasm gap” suggests that Democratic voters are much more eager to rein Donald Trump in than Republican voters are to support him.

It is unlikely that the Democrats’ strong showing in Kansas reflected an unusually strong Democratic candidate. Estes was the incumbent Kansas state treasurer, having won re-election in 2014 by a margin of more than 35 percent. Thompson was a first-time candidate.

Similarly, yesterday’s special election in Georgia was a Democratic blow-out. Democrat Jon Ossoff lead a field of 18 candidates with 48 percent of the vote. In second place, Republican Karen Handel came in just under 20 percent. Unfortunately, Georgia’s special election rules provide for a run-off if no candidate gets to 50 percent. Ossoff and Handel will face off on June 20.

The seat in question has been held by Republicans since 1979, when Newt Gingrich ended a Democratic run that began before the Civil War. Tom Price, now the secretary of health and human services, won every election from 2004 to 2016. The best any Democrat ever did against him was in 2016, when Price dropped to 61 percent to 38 percent for Ronald Stooksbury.

As in Kansas, the Democrat is a first-time candidate, all of 30 years old, and the Republican is a former state-wide elected official – in Handel’s case, the Georgia secretary of state.

Turnout was good for a special election, reflecting a high level of voter enthusiasm. More than 192,000 votes were cast, compared with 210,000 in 2014, a mid-term election. And as in Kansas, the Republican voter drop-off was substantially greater than the Democratic voter drop-off.

The run-off is likely to become a national cause. National Republicans were slow to see the vulnerability of this long-time Republican seat, and they won’t make that mistake again. National Democrats, on the other hand, funded Ossoff’s campaign exceptionally well, and will surely do the same for the run-off.

Some of my liberal friends and acquaintances are frustrated that Democrats didn’t actually win the seats in Kansas and Georgia. A typical comment was that losing these special elections  constitutes a “very telling failure” by Democrats, demonstrating a need for major changes in the party’s ideology and direction. I don’t see it that way.

When I started out on the subject of these special elections, I said that it was likely that Republicans would hold all four seats, “barring something extraordinary.” The importance of the special elections, I said, is not likely to be who wins them, but “is likely to be what they reveal about popular reaction to the Republican Party now headed by President Trump.”

The Kansas special election produced a 24-point shift from Republican to Democrat compared to the 2016 election. The Georgia special election produced an 11-point pro-Democratic shift. Shifts of that magnitude reflect a dramatically negative reaction to the Republican Party now headed by President Trump. And although Congressional districts are not fungible, it’s likely that the pro-Democratic movement in these two districts is mirrored in a lot of other districts around the country.

So there is no question that these two special elections are nationally meaningful – the question is how meaningful. There is no way to project precisely from these two special elections to the 2018 mid-terms. All we can do is hypothesize.

I’ll start my hypothesizing by observing that Republicans won a 241-194 majority in the House last November. Therefore, assuming Democrats win no special elections for House seats before the mid-terms, Democrats in 2018 will have to take 24 Republican seats to win a majority.

As it happens, 75 Republicans won election in 2016 by margins of 20 percent or less (the shift in Kansas); 15 Republicans won by margins of 10 percent or less (the shift in Georgia). Thirty-nine Republicans won by 15 percent or less – so if we pretend that Democrats nationally could achieve a shift of about 15 points in their direction, Democrats would win almost exactly the 40 seats that Nate Silver projects for a president at Trump’s level of approval – more than enough for a majority in the House. Of course there are a number of reasons that the two special elections won’t be replicated nationally, an important reason being that the two special elections were by definition for open seats, whereas most 2018 races will involve incumbents.

Still, if you watch closely, you’re going to start seeing some House Republicans try to hedge their 2018 bets by showing some distance from Donald Trump. You saw it this week, at a town hall held by Iowa’s Republican Senator Joni Ernst, a Tea Party favorite. Ernst called on Trump to release his tax returns, criticized him for his weekly trips to Mar-a-Lago, and laid a very public foundation for future disagreements with Trump’s policy initiatives. (NAFTA, just for instance, has been very good to Iowa corn famers.)

One of the many big political surprises of 2016 was how easily and completely mainstream Republicans caved in to Donald Trump’s hostile takeover of their party.  Republicans in Congress went along, in pursuit of power rather than principle, and now they have to live with the consequences: the Republican Party is run by a narcissistic neophyte who can’t find a balance between toadying up to a nuclear armed dictatorship in Russia and Twitter-taunting a nuclear armed dictatorship in North Korea.

Eventually, Republicans will have to pay their piper. Come next year’s mid-terms, Republicans may find that they can’t afford the bill.


Special Elections, 2017

A few weeks ago, I told you about the upcoming special elections to fill vacant House seats. This is my first update.

There will be five of these special elections, the first being next Tuesday and the last being on June 20. One of the five vacant seats is traditionally Democratic, having been vacated by Xavier Becerra, who was appointed to be California’s attorney general. The other four seats are traditionally Republican, having been vacated by various appointees to Donald Trump’s cabinet.

A month ago, I said that the importance of these races is unlikely to be their outcome, because, I said, “barring something extraordinary, the incumbent party is likely to hold each of those seats.” Instead, I said, the importance of these races is likely to be what they reveal about popular reaction to the Republican Party now headed by President Trump. That is still true, although the chances of a Democratic pick-up, or even two, are greater than I thought last month.

In general elections, publicly available polling data in House races is pretty sparse, so seat-by-seat projections are essentially impossible. But special elections are, well, special – and enough polling data is publicly available to be meaningful.

The first seat up, California’s 34th District, will stay Democratic. The only question is whether any of the Democratic candidates can get to the 50 percent vote needed to avoid a runoff on June 6. The only published poll for the race, taken in mid-February, shows Democratic state Assemblyman Jimmy Gomez leading a large pack with 20 percent of the vote.

The second special election is in Kansas’s 4th District, on April 11. This was Mike Pompeo’s seat before he became the CIA director, and it has been Republican since 1995. The last time the seat was open, in 2010, Pompeo beat the Democrat by 22 percent of the vote. There’s no publicly available polling yet, but the thing to watch is whether the Republican nominee, state Treasurer Ron Estes beats civil rights attorney John Thompson by a Pompeo-like margin.

The third special election is for Georgia’s 6th District seat, on April 18, with a runoff on June 20 if no candidate takes a majority of the vote. (Early voting began yesterday.) This seat has been Republican since Newt Gingrich ended a century-and-a-half of Democratic control in 1979. It was most recently held by Tom Price, who is now Trump’s secretary of health and human services.

The leading candidates are Democrat Jon Ossoff, a documentary filmmaker and former Congressional aide, and Republican Karen Handel, former secretary of state and unsuccessful candidate for governor and senate. The two most recent polls have Ossoff way ahead of Handel – 40 percent to 20 percent in one, and 41 to 16 in the other. In an 18-way race, Ossoff probably won’t get to 50 percent on April 18. The Republicans who are trailing Handel are carrying a lot more votes in the polling than the Democrats who are trailing Ossoff. At best, the run-off will be close – the only run-off poll so far shows Ossoff leading Handel, 42 to 41, with 17 percent undecided.

Still, the last time the seat was open, Price ran unopposed and took 100 percent of the vote; his closest re-election win was his last one, in 2016, when he won by 23 percent. There is a very good chance that this one will be much closer. Democrats have poured money into this race; if Ossoff goes into a run-off, this race will become a national cause.

The fourth special election is in Montana’s state-wide House district, on May 15. The seat has been Republican since 1997, and was vacated by Ryan Zinke when he became secretary of the interior. The Republican nominee is Greg Gianforte, who ran a close race for governor in 2016, losing to the incumbent Democrat by less than 4 percent of the vote. The Democratic nominee is a political newcomer, country music star Rob Quist.

Quist was a Bernie Sanders supporter who favors a single-payer health care system, opposes privatization of federal land, opposes Trump’s Muslim ban, and is pro-choice. Trump carried Montana by more than 20 percent. But guess what? Quist is leading Gianforte in the only published poll, 48 percent to 41, with a Libertarian Party candidate taking 11 percent. The poll was taken almost two months before the actual voting, which means there is plenty of time for voter sentiment to change.

The last of the special elections is on June 20, in South Carolina’s 5th District, following party primaries on May 2, with run-offs on May 16 if needed. This is the seat vacated by OMB Director Mick Mulvaney, and it has been Republican since 2011, when Mulvaney ended a string of Democrats going back to Reconstruction. Mulvaney won election by 10 percent, and won re-election three times, each time by a larger margin: 12 percent, 18 percent, and 20 percent.

Party nominees have yet to be determined. The leading Republican candidates are two members of the state House of Representatives. On the Democratic side, no established politician had an appetite for the race; the three candidates are political neophytes. No doubt Republicans will hold the seat. The issue will be how well a Democratic newcomer does against an established Republican.

President Trump continues to run approval ratings at historic lows – 36 percent as of Sunday, according to Gallup. His health care bill died an ignominious death, and his Muslim bans are on indefinite judicial hold. Trump continues to pick undignified and irrelevant Twitter fights. Trump treats our allies with indifference, even hostility, but Vladimir Putin with admiration. His administration is under a counter-intelligence investigation by his own FBI – and by the intelligence committees in both houses of Congress. The Russia scandal clearly has legs, as reporters keep discovering previously undisclosed Russian interests of Trump associates. The Trump family’s conflicts of interests are unprecedented. Trump appointees shamelessly pursue regulatory initiatives that will directly benefit their personal finances.

Unless circumstances change quickly and decisively, this Spring’s special Congressional elections will constitute the first electoral backlash against Trump and his Republicans.


The Lesson Ryan Won’t Learn

For seven years, Congressional Republicans have been obsessed with the Affordable Care Act – that is, with their desire to repeal it. After Republicans took majorities in the House of Representatives in 2010 and in the Senate in 2014, each house voted almost innumerable times for bills that would repeal Obamacare. Republican unity was ensured by the certainty of President Barack Obama’s veto, which meant that voting for ACA repeal was an act of opposition to President Obama and not an act of policy-making. While Obama remained president, Obamacare repeal bills had no substantive connection to health care policy.

Now of course Donald Trump is president. But Obama’s presidency is still recent enough that repealing Obama’s signature legislative achievement still operates as an act of opposition to the former president, feeding conservatives’ deep psychological need to erase every legacy of the Obama presidency. But since President Trump will sign pretty much any bill that Congress sends him under the rubric of Obamacare repeal, Republicans are now responsible for the policy consequences of repeal.

Here is what it looks like when Republicans take responsibility for ACA repeal: 24 million fewer Americans would have health insurance in 2026 than under Obamacare. Not surprisingly, the Republican “repeal and replace” bill was enormously unpopular: just 17 percent of Americans want the Republican bill to become law. It’s hard to find any piece of legislation that unpopular – Obamacare itself never dropped below 37 percent. Even in the reddest of red states, Republican representatives and senators were met at town halls by firestorms of opposition to ACA repeal.

Faced with a humiliating loss in the House of Representatives, Speaker Paul Ryan today withdrew the ACA “repeal and replace” bill.

The most important thing to understand about the House bill was that it wasn’t about improving Americans’ health care. Obamacare opponents have dressed up their opposition with talk about the cost of premiums, deductibles and co-pays, but that wasn’t truly their concern. If costs were the true concern of conservatives, we’d have heard lots of discussion of questions like these: are costs higher under the ACA than they would have been without the ACA; are premiums going to rise every year as much as they did last year, or was that (as many economists believe) a one-time correction for the fact that premiums rose very slowly in all the previous years of Obamacare?

The hard-right Obamacare opponents dressed up their opposition with talk about “freedom” – their professed concern being that consumers should have the freedom to buy insurance that covers what they want to cover. There’s some appeal to the proposition that men shouldn’t have to pay for maternity insurance. But the idea that consumers should have the “freedom” to buy insurance that doesn’t cover hospitalization and emergency room care is hard to defend.

In fact, the best proof that the goal of ACA repeal was not to improve health care was in the deal that Trump and Ryan made with House conservatives earlier this week – the repeal bill was revised to eliminate the mandate that insurance policies cover “essential health benefits.” The ACA requires that health insurance policies cover ten essential health benefits: outpatient services, emergency room care, hospitalization, maternity, mental health and substance abuse services, prescription drugs, rehabilitative services, lab tests, preventive care such as vaccines, and pediatric vision and dental care.

Not covering these services would certainly make health insurance cheaper, just like auto insurance would be a lot cheaper if it didn’t cover car crashes. It would be cheaper, because it would be almost worthless.

ACA opponents love to repeat their mantra, “Obamacare is a failure.” The problem is, Obamacare is a success in several important respects.

First and foremost, at least 20 million more Americans have health insurance than before Obamacare. Republicans like to claim that deductibles and co-pays are so high that the insurance has little effect, and there is some truth to that for a small slice of the insurance pool: those who don’t have group insurance policies through their jobs, and whose income is just above the maximum to be eligible for federal subsidies. People in that position have little choice but to buy the cheapest possible individual insurance policies – and of course the cheapest policies provide the least benefits.

There are a number of possible solutions to that problem. But the Republican proposal to convert premium subsidies to tax credits and then slash them drastically is no solution.

Those who gained health insurance under the ACA are more financially secure than they would have been without it. Medical debt and medical bills in collection have declined. The reduction in unpaid medical bills has to be good for the health care industry as well.

To the extent that children and young adults have gained access to health care, the ACA constituted an important measure against inequality. Employment opportunity and financial security throughout life depend in very large part on access to health care and education in youth. Access to neither should depend on the accident of birth.

Incidentally, the ACA has reduced the federal deficit below what it would have been without the ACA. This is because the ACA has reduced the rate of growth of health care costs generally, including those health care costs paid by the federal government. Federal health care cost savings under the ACA have been greater than the federal costs of the ACA – which means that the savings have been considerable.

The ACA does have problems. The individual health care insurance market remains almost impossibly complex, confusing to all but the most expert among consumers. And American health care remains by far the most expensive in the world, without achieving anything close to the world’s best outcomes. (For example: Cuban life expectancy is essentially equal to ours, but Cubans pay 93 percent less for health care than Americans do.)

Despite the individual mandate and the tax penalty that backs it up, young, healthy Americans have not signed up for insurance in sufficient numbers to maintain a sound risk balance in the insurance pool. It’s fair to wonder how much of this is due to the constant trash-talking of the ACA by its opponents, now including the President of the United States. It’s also fair to wonder how much is due to the expectation that the now-predominant Republicans would repeal the individual mandate and the tax penalty.

Those speculations aside, the problem has a number of fixes, perhaps the simplest being to increase the tax penalties.

Finally, the state exchanges for individual health insurance policies have not sustained a desirable level of competition – hundreds of counties now have just one provider in the exchanges. It’s impossible to separate out the inherent effects of the ACA from the insurance companies’ expectation that the ACA was about to be repealed. In either event, there surely are fixes to this problem that don’t involve scrapping the exchanges altogether.

Medicaid expansion has been a huge success. Medicaid is easier to understand than the individual policy market, it is government-paid (not single-payer, like Medicare, but jointly federal- and state-paid, and largely state-administered). The ACA made Medicaid benefits available to more Americans – although 19 states opted not to take advantage of it.

The only problem with Medicaid expansion is that it costs money – federal tax money. And therefore ACA opponents proposed not only to prohibit more states from agreeing to expanded Medicaid, ACA opponents proposed to slash Medicaid funding and convert the remaining funding from payments for medical care to block grants to states.

Congressional opposition to the ACA has been largely ideological, not operational. Conservatives objected to the ACA’s expansion of federal authority, increases in federal taxes, and federal intrusion in to the free market. The opposition was not founded on concern for the quality or availability of health care.

Since their problem was ideological, Republicans didn’t even try to get Democratic support for their “repeal and replace” solution to that problem. (Republicans often accuse President Obama and Congressional Democrats of enacting the ACA without Republican support, but that wasn’t for lack of trying. Democrats tried hard, for more than 18 months, to work out a bill that Republicans would support. Only when it became clear that Republicans would support no bill that substantially expanded health care did Democrats go it alone.)

What Republicans have failed to appreciate is that their constituents aren’t as ideological as they are. Their constituents want affordable health insurance, and if “freedom” means the right to choose between health care and food, their constituents will gladly do without a little freedom.

The lesson that Republicans could learn from this “repeal and replace” debacle is that they need to re-focus from negating the Obama presidency to delivering for voters – and in this case, that means making health care better, cheaper, or both. Republicans could decide to work with Democrats – to improve competition in the state exchanges, for example.

But they won’t. Neither the Congressional Republican leadership nor President Trump is anywhere close to giving up the ambition of undoing the Obama presidency. Maybe the 2018 mid-terms will sober them up. But I’ll give you odds that today’s “repeal and replace” fiasco won’t do the trick.



Whole Lot of Nothin’

The House of Representatives Permanent Select Committee on Intelligence is supposed to be investigating the scope of Russian interference in the 2016 presidential election, whether Donald Trump’s campaign worked with the Russians, and the facts and circumstances of classified leaks to the press. The committee’s investigation has suffered some “scope creep,” and now also includes whether there was any basis for Trump’s allegation that then-President Barack Obama “had my ‘wires tapped’ in Trump Tower” before the election.

Today, the Republican Chairman of the House intelligence committee, Devin Nunes, announced at a press conference that members of the Trump transition team had been picked up “incidentally” in surveillance authorized by the Foreign Intelligence Surveillance Act court. His intention was to show that Trump’s allegation against Obama was well founded.

Trump immediately claimed that Nunes’s allegation vindicated his accusation of Obama. The right-wing Internet media quickly followed suit. But the Nunes allegation did no such thing.

“Incidental” capture of information about a person other than the target of the surveillance occurs when the person comes up in the course of surveillance of the actual target. Monitoring the communications of a target necessarily involves hearing or seeing communications of other people with the target – if you wiretap a target’s phone, you’ll hear both parties to all of the target’s conversations.

If a member of the Trump transition was “incidentally” picked up pursuant to a FISA warrant, that means either that the target of the warrant had a communication with the transition team member or that the name of the transition team member was mentioned during the communication, either by the target or by the person the target was talking to.

The monitored communication is transcribed for review by investigators. The name of anyone not a target – at least of any American not a target – that appears in the communication is supposed to be “masked.” “Masking” a name protects it from being read. If necessary to understand the communication more fully, the name can be “unmasked,” but supposedly only a few very high-ranking officials have the authority to order “unmasking.”

Nunes asserted that the Trump transition team member or members were picked up “incidentally.” Assuming that is correct, that means that Nunes knows that the people picked up were not themselves targets of FISA surveillance warrants. Nunes further claimed that the names were “unmasked,” implying that the names were properly “masked” in the original transcription, but “unmasked” at some later point.

One possibility is that the names were properly unmasked – Nunes offers only his own assessment that the names had no obvious intelligence value. The other possibility is that the names were improperly unmasked.

None of the scenarios implies in any way that President Obama “had [Trump’s] ‘wires tapped’ in Trump Tower.” That accusation was and remains a baseless lie.

First and foremost, Nunes’s own allegation is that Trump transition people were picked up “incidentally” in the course of legal, court-authorized surveillance of other people’s communications. Nunes’s allegation does not imply that anyone in the Trump transition, let alone Trump himself, was the target of surveillance.

Second, although Trump has tried to fuzz up his original accusation against Obama by saying that “wiretapping” refers to surveillance generally, his accusation was unavoidably specific that the surveillance occurred “in Trump Tower.” Nunes’s allegation explicitly related to surveillance of foreigners who were not part of the transition, and, presumably, were not in Trump Tower. (It would hardly help Trump’s case if targets of FISA surveillance warrants were using Donald Trump’s “wires” in Trump Tower.)

The Trump disinformation machine will spend the next few days furiously muddying the waters, claiming that this new information proves that the Obama Administration (no longer President Obama personally) was surveilling the Trump campaign (no longer Donald Trump personally). It is important that the mainstream media not fall into that trap.

There are other questions, though. If Devin Nunes thinks that his new information is relevant to Trump’s accusation against Obama – which is under investigation by his committee – why did Nunes share the information with the White House and not with the rest of the committee? The ranking Democrat on the committee, Adam Schiff, told MSNBC that he learned of Nunes’s allegation by watching Nunes’s press conference on TV.

Nunes indicated that he viewed the supposedly damning documents in a secure location, implying that they were shown to him by members of the intelligence community, which is part of the executive branch. Why would members of the executive branch bring to light material that allegedly supports statements by their president by showing them to a member of Congress, instead of to the President?

If the documents included names that had been improperly “unmasked,” was it legal and proper to show them to Nunes? If the committee is going to pursue leaks that occurred during the Obama Administration, in all fairness isn’t this also a leak, and shouldn’t the committee investigate it?

Most importantly, has Nunes fatally undermined the independence, integrity and credibility of the House intelligence committee’s investigation? The Trump campaign is the target of potentially the most important aspect of the investigation: whether the campaign in any way cooperated or coordinated with the Russian interference into our elections. An investigation that feeds information more quickly to its targets than to its own investigation team is not so much an investigation as it is a cover-up.

Nunes’s ability to conduct a credible investigation was already deeply suspect. He himself was a member of the Trump transition team. He has oddly insisted that his committee will not seek access to the Trump tax returns that could reveal the extent of Trump’s financial debts and obligations to Russian interests. He agreed to a Trump White House request that he speak to reporters to challenge a report about Trump campaign connections to Russia. He has declined to include former National Security Advisor Michael Flynn’s conversations with the Russian ambassador in the committee’s investigations, opining that by those conversations Flynn did our country a favor for which we should thank him, not investigate him. Nunes said that Flynn’s conversations occurred after the election, so were not relevant to the investigation. But Nunes’s allegations today explicitly concerned the Trump transition, not the Trump campaign, and therefore also post-dated the election – still, Nunes thought these allegations relevant to Trump’s claim that Obama wiretapped Trump Tower before the election.

To me, it is axiomatic that a Trump transition official cannot credibly lead an investigation into the Trump campaign. This would be true if the investigation concerned something relatively mundane, like campaign finance impropriety. But the subject of this investigation is anything but mundane. At a minimum, the investigation must determine the scope of our exposure to Russian influence over future elections, and if that means that the propriety of President Trump’s own election falls into question, so be it.

But even more fundamentally, the investigation must determine whether the campaign of one of our two major parties assisted, or even just knew about, Russian interference – whether, in short, a presidential candidate colluded with a hostile foreign power to corrupt an American presidential election. If so, this is Watergate plus treason – the most serious assault on American democracy since the Civil War.

A few Republicans have joined Democrats’ call for investigation of the Russian election interference and Trump campaign collusion by an independent, bipartisan commission along the lines of the 9/11 commission. Nunes’s actions today puts Republicans in Congress to the test – whether at the end of the day the security of our country and the integrity of our democratic institutions is ultimately more important to Republicans than the partisan advantages to be gained by continuing to downplay the Russian cyberwar against us.

Wildfire on the Great Plains

The southern Great Plains endured an unusually wet summer last year, followed by a very dry winter this year. That combination is dangerous – the summer rains thicken the growth of prairie grass, which the winter dries to kindling. By January, Kansas had already endured three large wildfires – a “large” wildfire being one that burns at least 300 acres of grassland.

On March 4, the Lawrence, Kansas, Journal-World ran a prophetic Associated Press article describing fire officials’ worry that the potential for wildfire this year was worse than last year, which saw record wildfire destruction in Kansas. The volunteer fire chief of Marquette, Kansas, told the Associated Press, “It’s really, really getting dry out there, but holy cow, there’s so much fuel out there on some of these pastures it’s just unbelievable. If we get the wrong wind, we could have some big problems.”

The “wrong wind” came sooner than the fire chief might have hoped. The next day, March 5, gusting winds fed a number of wildfires across Kansas. Over the next few days, wildfires set new records for destruction: more than 1,500 square miles of grassland were burned across Kansas, Oklahoma, Texas and Colorado, including the largest single wildfire in Kansas history – 861 square miles, versus the previous record of 488 square miles in 2016. Scores of homes and barns were lost, thousands of head of cattle killed, and seven people died – from the three Texas ranch hands who died from smoke inhalation and burns while trying to save their cattle, to the 63-year old Oklahoma woman who died from a heart attack while fighting the fire alongside her husband.

The worst devastation was concentrated in Clark County, Kansas. An estimated 85 percent of the county’s land was burned, and more than 3,500 head of  cattle were lost – first in the fire itself, then afterward as ranchers shot animals that were found alive but badly burned.

It is perhaps excusable, given all else that is going on just now – but still, perhaps not – that this story of devastation and loss has gotten so little attention in the national media. As far as I can tell from internet searches, the first national report of the wildfire came in today’s New York Times, two weeks after the fires raged through the plains.

But it’s not only the media who have paid little attention: the Trump Administration has been MIA. As lame as was George Bush’s response to Hurricane Katrina, he did inspect the damage two days after the hurricane hit New Orleans. A Kansas State University agricultural agent put it this way: “This is our Hurricane Katrina.”

The governors of Kansas, Oklahoma and Texas have declared states of emergency, but the federal government has not. Private aid has begun to flow, in forms from donations of hay to feed the cattle that survived the fire to donations of money to pay for the funerals of the dead ranch hands. But no federal aid has arrived.

The Times reports that devastated ranchers are eligible for assistance from the federal Department of Agriculture: up to $200,000 to replace a rancher’s burned fences; up to $125,000 for livestock losses. One Clark County rancher estimates that replacing 200 miles of burned fencing will cost him $2 million; the auction value of his lost cattle (that is, not including their breeding value) is another $1 million. “Like many ranchers,” the Times notes, this rancher insured his house and his ranch equipment, but not his livestock or his fence, because premiums would be “impossibly expensive.”

President Donald Trump’s budget outline for fiscal year 2018 calls for a 21 percent reduction in the Department of Agriculture budget. None of the aid programs that are now critical to southern plains ranchers are on the list of programs Trump proposes to eliminate, but they may well be on the list of programs Trump proposes to reduce.

Some of us believe in a vigorous federal government, not just in national defense and national security, but also in national health, education and welfare, and we’re willing to pay the taxes that are needed to sustain such a federal government. High on the list of the priorities of a vigorous federal government must always be disaster relief. When terrorists strike New York, when a hurricane devastates New Orleans, or when wildfires decimate Clark County, a vigorous federal government is quick to assist.

Even if the ranchers of Kansas can make good on their staggering financial losses, they are facing years of clean-up and restoration. Ranchers are facing what the Times called “an existential threat to a way of life that has sustained them since homesteading days” in the late 1800s.

It makes no difference that 83 percent of Clark County voters cast ballots for Trump. It is not relevant whether Clark County voters see a connection between a vigorous federal response to prairie fires and a vigorous federal response to urban problems. Ranchers on the Great Plains have suffered a terrible blow, and we should be able to count on our federal government to go to their aid.

Kansas ranchers are feeling forgotten by our federal government and by a president who ran on a campaign to remember our “forgotten men and women.” They’d like a little financial assistance, of course, but at this point even just a little recognition would be nice. Trump could pay a visit, one rancher suggested. Or he could mention the disaster in one of his tweets: “Two sentences would go a long way.”


The Texas State Girls Wrestling Champion is a Boy

You can blame North Carolina – they started it.

On February 22, 2016, the Charlotte, North Carolina City Council passed an ordinance that expanded protections against discrimination based on sexual orientation, and added new protections against discrimination based on gender identity. One provision of the ordinance specifically allowed students to use the bathroom that aligned with their gender identity instead of with their sex at birth. The ordinance was to become effective on April 1, 2016.

The North Carolina governor and legislature were not amused. The image they pandered to the public was of adult male sexual predators using the law to gain access to female restrooms in order to molest North Carolina’s girls. The notion has its comic aspect, since it logically depends on the premise that child molesters wouldn’t dare enter girls’ bathrooms without the cover of the Charlotte ordinance. Child molesters don’t care so much about felony rape laws, but they are apparently quite persnickety about the legality of their access to bathrooms.

Then-Governor Pat McCrory (since unseated by now-Governor Roy Cooper) got the North Carolina legislature to enact a bill called H.B. 2, mandating that the use of single-sex bathrooms in public buildings be determined by the sex recorded on a person’s birth certificate.

The law went considerably farther than that, for instance prohibiting North Carolina cities from taking measures to protect lesbian, gay and transgender people that exceeded North Carolina’s state laws on the subject. Since North Carolina law allows discrimination on the basis of sexual orientation or gender identity, H.B. 2 effectively repealed existing local protections and barred future protections as well. (For those interested in the reasons that H.B. 2 is unconstitutional, I refer you to the U.S. Supreme Court’s 1996 decision in Romer v. Evans. A state may not target one segment of its population by depriving them of the opportunity to lobby for, and win, municipal legislative protections.)

H.B. 2 was introduced, passed by both Republican-dominated houses of the state legislature, and signed by Republican Governor Pat McCrory, on a single day – March 23, 2016. Reaction was fast, and furious. Rock stars like Bruce Springsteen and Ringo Starr canceled concerts in North Carolina. Corporations canceled conventions in North Carolina. The National Basketball Association pulled its 2017 all-star game from the state. Apple, IBM, American Airlines, PayPal, Dow Chemical, Google, Bayer, and a host of other corporations strongly opposed H.B. 2. Five states and 37 municipalities banned non-essential travel to North Carolina on governmental business. (And really, when would travel to North Carolina ever be “essential” for governmental business?)

All told, reaction to H.B. 2 cost North Carolina thousands of jobs and tens of millions of dollars, contributing to McCrory’s narrow electoral loss last November.

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Growing up in the Dallas-Fort Worth area of Texas, young Mackenzie Beggs felt that she wasn’t really a girl. She told her friends to call her Mack, and she told her grandmother she was going to be a man when she grew up.

At 15 years old, Mack Beggs began the transition to male, which included taking testosterone supplements. Mack “fell in love” with the sport of wrestling, and tried to join his high school’s boys wrestling team. But the Texas regulatory body in charge, the University Interscholastic League, ruled that he had to join the girls team, since his birth certificate said he was a girl.

Mack is now 17 years old. Without detracting in any way from the discipline and rigor of Mack’s athletic training, there can’t be any doubt that his testosterone supplements gave him an edge against the girls he was forced to compete with. This week in Houston, Mack won the girls state-wide high school wrestling championship in his 110-pound weight class.

Many cheered Mack on, but some were remarkably bitter toward Mack personally. One wrestler’s mother was quoted in the Washington Post: “She’s standing there holding her head high like she’s the winner. She’s not winning. She’s cheating.” A local lawyer went to court to try to get Mack suspended from the competition – which, the lawyer acknowledged, was not the competition Mack had wanted to enter in the first place.

The lawyer naturally argued that Mack’s testosterone supplements gave him an impermissible advantage over his competitors. Testosterone use by Texas scholastic wrestlers is barred except for medical reasons. The lawyer argued that since the American Psychiatric Association had eliminated “gender identity disorder” from its catalog of mental disorders, Mack’s use of testosterone was not medical. The lawyer, who insists on referring to Mack as “she,” conveniently overlooked the fact that the APA replaced gender identity disorder with “gender dysphoria.”

The APA explicitly regards gender dysphoria as a mental disorder; one of the treatments is gender reassignment. Gender reassignment is what Mack Beggs is doing, and testosterone supplements are part of it. He tried to join the boys wrestling team, according to his gender identity, but was given a choice between wrestling girls or not wrestling at all.

I think we can start from the premise that you don’t get to have things both ways. If the rule is that all people forever belong to the sex recorded on their birth certificates, then it seems to me that the rule has to apply equally to bathroom use and high school wrestling team membership. If you’re uncomfortable with transgender females getting a gander at the girls in the female bathrooms, then you have to get comfortable with transgender males mashing their sweaty bodies against the bodies of female wrestlers. Conversely, if you’re not too keen on the body-mashing, then you need to get comfy with the bathroom gandering.

*          *          *

It has been widely reported that President Donald Trump revoked protections for transgender students adopted by former President Barack Obama. The New York Times, for instance, ran this headline: “Trump Rescinds Rules on Bathrooms for Transgender Students.” This reporting is incorrect.

The document that Trump rescinded was what is called a “dear colleague letter.” It was sent on May 13, 2016, jointly by the Department of Justice and the Department of Education, to advise state and local education officials around the country of the Obama administration’s interpretation of federal law – specifically how federal law applies to transgender students. The letter stated the administration’s opinion that Title IX of the 1964 Civil Rights Act requires that sex-specific educational facilities and services be open to students according to gender identity. The Trump administration says otherwise.

Neither the Obama administration nor the Trump administration is the arbiter of the scope and meaning of federal legislation; that role is reserved to the courts. Neither the Obama administration letter nor the Trump administration’s superseding letter determines anyone’s legal rights.

Title VII of the 1964 Civil Rights Act prohibits sex discrimination in employment. Title IX prohibits it in education. To me, the question is a relatively simple one: is sex an immutable characteristic that is fixed at birth, or is it possible for a person to change sexes? If it is possible to change sexes, then it seems inarguable to me that people are entitled to be treated according to their current sex.

Those who oppose transgender rights tend to assume that it is not possible to change sexes. So, for instance, the following statement is made in transgender rights litigation: “when Title IX was signed into law, neither Congress nor agency regulators and third parties believed that the law opened all bathrooms and other intimate facilities to members of both sexes.” In other words, transgender females are not really female, and transgender males are not really male; freeing them from the gender they were assigned at birth constitutes “opening all bathrooms and other intimate facilities to members of both sexes.”

Every single one of Mack Beggs’s female opponents this season, all 56 of them, lost to him – and the matches generally weren’t even close. The Post said Mack “cruised” to the state championship. In the championship tournament, he won by scores like 18-7 and 12-4. He won the championship bout by 12-2: he beat the best female high school wrestler in his weight class in the entire State of Texas by ten points. For the uninitiated, the scores of scholastic wrestling matches tend to look like the scores of baseball games: a ten-point win is a thumping big victory. I suppose we can ask Mack’s wrestling opponents whether Mack is really and truly still a girl.

I do have to note one irony: the irony of opponents of transgender rights pinning their case to the intentions of the authors of the 1964 Civil Rights Act. The Civil Rights Act as written and introduced into Congress did not cover sex discrimination. Southern Congressmen who opposed a federal prohibition against race discrimination amended the bill to add the prohibition against sex discrimination, expecting that the amendment would make the bill ridiculous, so the whole bill would be defeated. And in fact, the Congressional Record tells us that introduction of the amendment prompted laughter on the floor of the House of Representatives.

The authors of the sex discrimination provisions of the 1964 Civil Rights Act did not intend to prohibit sex discrimination at all. Looking to them to determine whether they intended the “sex” in “sex discrimination” to be determined by birth or by gender identity is disingenuous; it is absurd – and therefore, I must say, it is so fitting of the times in which we now live.



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