Why The Republicans Played Repeal Perfectly

The headlines today are about the claimed defeat for Republicans and, especially President Trump, when Paul Ryan pulled down the Obamacare Repeal Bill.

This is just wrong as the Republicans are playing this difficult game perfectly, they are Kasparov in this matter. I’ll explain why.

President Trump and many Republicans ran on the promise to repeal and replace Obamacare, which is collapsing. Obamacare is “owned” by the Democrats. It was passed without a single Republican vote and voters hate it. The Republicans absolutely had to take early action to repeal and replace this failed program but faced some very real problems due to the numbers required to pass repeal and replace and Senate rules that made it impossible t use budget reconciliation to pass it with 51 votes. Without reconciliation, it would take 60 votes to pass and the Democrats would block it. There are 52 Republicans in the senate, 46 Democrats, and 2 independents. ( who are really Democrats.)

The particular problem is the Byrd Rule below. The actionable section is in bold.


Under the Byrd rule, the Senate is prohibited from considering the extraneous matter as part of a reconciliation bill or resolution or conference report thereon. The definition of what constitutes “extraneous matter” is set forth in the Budget Act; however, the term remains subject to considerable interpretation by the presiding officer (who relies on the Senate Parliamentarian). The Byrd rule is enforced when a Senator raises a point of order during consideration of a reconciliation bill or conference report. If the point of order is sustained, the offending title, provision or amendment is deemed stricken unless its proponent can muster a 3/5 (60) Senate majority vote to waive the rule.

Subject matter – The Byrd rule may be invoked only against reconciliation bills, amendments thereto, and reconciliation conference reports.

Byrd rule tests – Section 313(b)(1) of the Congressional Budget Act sets forth six tests for matters to be considered extraneous under the Byrd rule. The criteria apply to provisions that:

  • do not produce a change in outlays or revenues;
  • produce changes in outlays or revenue which are merely incidental to the non-budgetary components of the provision;
  • are outside the jurisdiction of the committee that submitted the title or provision for inclusion in the reconciliation measure;
  • increase outlays or decrease revenue if the provision’s title, as a whole, fails to achieve the Senate reporting committee’s reconciliation instructions;
  • increase net outlays or decrease revenue during a fiscal year after the years covered by the reconciliation bill unless the provision’s title, as a whole, remains budget neutral;
  • contain recommendations regarding the OASDI (social security) trust funds.

Exceptions to the Byrd Rule – Section 313(b)(2) allows certain otherwise covered Senate-originated provisions to be excepted from the Byrd rule if the provisions are certified for exemption by the Senate Budget Committee chairman and ranking minority member, as well as the chairman and ranking minority member of the committee of jurisdiction. The permitted exceptions are:

  • a provision that mitigates direct effects attributable to a second provision which changes outlays or revenue when the provisions together produce a net reduction in outlays;
  • the provision will result in a substantial reduction in outlays or a substantial increase in revenues during fiscal years after the fiscal years covered by the reconciliation bill;
  • the provision will likely reduce outlays or increase revenues based on actions that are not currently projected by CBO for scorekeeping purposes; or
  • such provision will likely produce a significant reduction in outlays or increase in revenues, but due to insufficient data such reduction or increase cannot be reliably estimated.

Effect of points of order – The effect of raising a point of order under the Byrd rule is to strike the offending extraneous provision. If a point of order against a conference report is sustained, the Senate may consider subsequent motions to dispose of that portion of the conference report not subject to the point of order.

Waivers – The Byrd rule is not self-enforcing. A point of order must be raised at the appropriate time to enforce it. The Byrd rule can only be waived by a 3/5 (60) majority vote

Because of the limitations placed on legislation that can pass under reconciliation, the actual repeal and replace can’t be accomplished as desired by all Republicans.

the dilemma then is that a partial “repeal” can occur but it would not correct Obamacare’s major flaws, would cause damage, leave Republicans open to the charge that the problems were caused by them In short, they would own healthcare and its problems.

This is the particular problem the Republicans faced and they knew it. In short, they could not achieve true repeal and then replace with a program that works with the Byrd rule in place. So what were they to do?  Any attempt to partially repeal, Obamacare lite, for example, would result in a plan that was badly flawed, but the flaws would be seen as Republican flaws-a political death wish. The result of the non-vote on the American Health Care Act is that Obamacare is still the law of the land, is a disaster, and is owned by the Democrats.

The Republicans know that to have a proper healthcare law, the repeal and replacement of all of Obamacare is required to get there, they need either a 60 vote majority in the Senate or Democratic support.  That’s what they are playing for! If Obamacare continues to be a problem and it will, they will campaign in 2018 on that issue and hope to get a 60 vote Senate Majority. That’s actually a very desirable goal and the Democrats seem to be oblivious to the risk they are taking by opposing repeal and replace, and, for that matter, the Gorsuch nomination. the first indication that this is the Republican plan is that President Trump asked for Democratic help in the repeal, replace effort. The Democrats haven’t gotten back to him yet!!!

It’s a wonderful trap and there is no escape for his prey.

Robert’s Obamacare Decision and His Game Plan (part 2)

I have long ago stopped wondering if Chief Justice John Roberts was the smartest guy in the room. He is.

I have been dismayed, then confused, by some of his decisions on Obamacare issues and commented on the most recent one Here.

It occurs to me now that Robert’s has significantly enhanced the power of the legislature and the court must now, based on decisions with a liberal majority, support any legislative attempt to overturn or significantly reform Obamacare. He has already indicated that he thinks it is drafted in an “inartful” manner and has many problems.

As Roberts believes, if you don’t like it, elect people who will change it.

Robert’s ObamaCare Opinion and His Game Plan

Chief Justice Roberts wrote the majority opinion in King v Burwell or Obamacare case. He rewrote the plain language of the act to allow payments of subsidies to persons not actually eligible under a direct reading of the act. He idid so to keep the act working.

Robert’s has made a habit of correcting, as he calls it, “Inartful drafting.” He even admits that the Affordable Care Act is full of such language.

So what is his game plan?

I think this particular Chief Justice believes so strongly in the legislative process, that he feels compelled to correct and allow legislation, no matter how badly written, to remain in force and not be barred on constitutional grounds.

There is another, and I think, equally powerful argument to make and that is that Roberts is telling the American people, you elected these people, they passed this legislation and now you live with the consequences of your actions. If you want something else, elect someone else.

I really think that is it. It is deference to the legislature and a reminder to the people that elections are serious.

George Will joins me in this opinion as he wrote: “The decision also resulted from Chief Justice John G. Roberts Jr.’s embrace of the doctrine that courts, owing vast deference to the purposes of the political branches, are obligated to do whatever is required to make a law efficient, regardless of how the law is written. What Roberts does by way of, to be polite, creative construing (Justice Antonin Scalia, dissenting, calls it “somersaults of statutory interpretation”) is legislating, not judging.”

After this week, major political issues have been taken off the table to the relief of many Republicans who did not want to have to oppose same sex marriage in 2016 or have their majorities in the house and senate actually pass legislation that corrected the error in Obamacare. I just don’t think that would work well.

Will continues with “Thursday’s decision demonstrates how easily, indeed inevitably, judicial deference becomes judicial dereliction, with anticonstitutional consequences.” Read more http://www.jewishworldreview.com/cols/will062615.php3#5bTYGAVLkHwCmhip.99

I have to agree, however, I see long term benefits from Roberts’ Game Plan.  We’ll wait and see.

New Years Thoughts; A Big Welcome to 2014

Friends, There are 10 hours of 2013 left here in Minnesota and 2014 dawns soon. After tumultuous times, I have discovered the great wisdom in the statement “When a window is closed, a door opens,” and “If it doesn’t kill you, it makes you stronger,” (That Nietzsche fellow had a way with words.)  The door that is opening in 2014 promises to be very rewarding.

The benefits are numerous. In mid 2012,  I decided that Sima and I needed to play more tennis. I found the Reed Sweatt Family Tennis Center in Minneapolis, a year round facility and we now play intensely in a league. We are actually getting better. Tennis is a superb conditioning activity so I don’t need the very boring (and expensive) gym. Pushups are the perfect exercise. We are playing in mixed doubles tournaments and leagues and loving it and, as I said, we are getting better.

In business, I am now pursuing pure business activities. I had a situation where I led a client to a team for the fourth time, and he couldn’t close, for the fourth time. I decided that was not what I wanted to do, so I stopped doing it. Now, partners and I are pursuing financial, sports equipment, league operation changes, arena/stadium operation improvements and related stuff. This is fun!!! The partners, curiously, found me, so I think the karma is right.

It is still hard to believe that it is 2014. My daughters, born in 1989 and 1992, are bemused by the fact I can speak of stuff that I saw in the 1940’s. That is until I figured out that my daughter Caroline, 21, has the same relationship with FDR that I had with James Garfield, who was shot in 1881. That was 24 presidents ago. (This is heading towards a celebration of age.) I think being older has great benefits, (not in tennis, by the way) but in the way you consider life and the obstacles that arise. Age teaches that you keep your head about you and the skies clear; the new dawn of 2014 smiles on all of us.

I am please to inform you that they, Sima, Clark III, Natalie and Caroline, are all smarter than I am, but that age allows me to continue to fool them from time to time. Some reference to the Korean War or the Truman administration, or some reference to how the South came within a few hours of winning the Civil War in 1862, usually is sufficient, or they are just being kind. Now that I think about it, that must be the case.

So, tomorrow starts 2014 and I can’t wait. Tonight, I will set the clocks ahead to Atlantic time and go to bed early. Sima and I will celebrate the evening with a lobster dinner. By the way, I made the mistake of allowing her to learn that I was a very good cook. I got that way by being my mother’s sou chef  (A sou chef actually has some authority; I had none, but I like the sound of it!) for years. (How many 12 year old boys do you know can make a meringue by hand?) So I now am the chef. As daughter Natalie told me Christmas eve, “Make dinner!!” so I produced a rack of lamb, broccoli and sweet potato fries in 25 minutes. I actually enjoy that especially now that the rule, “If you make it, you don’t clean up” which has been in force for some years and used against me for decades, is now my favorite rule. Bon Appetit!

So as I ramble through the last hours of 2013, wondering how it became 2014 so fast, and how far that is from where I started, I am blessed to be making this journey with wonderful people, and I thank God for that. 

Obamacare’s Dismal Debut from “The Onion”

The Onion announces the launch of Obamare’s program on 35 floppy discs for a computer with at least 8mb of free Ram and a monitor with 320X200 resolution, “Or the program will not display well.” The government assured users, saysThe Onion,that the program could be loaded within 4 to 5 hours and if there was a problem users could just hit F1 for Help.

A link to the story is here and is a moment of humor derived from a stupendous government failure that has the potential to damage tens of millions, if not all, Americans.

Democrats have been instructed to stop using the term “Obamacare” and refer to the failed program as “the Affordable Care Act” so as not to besmirch Obama’s name by conjoining it to “the Affordable Care Act,” that, as the few people who have signed up have discovered, is not affordable.

This should help those people who still believe that Obamacare is about providing healthcare and who haven’t recognized that Obamacare is about controlling healthcare, while rationing its use. Stay well, as they say.