Here are the four things you need to know before your coffee gets cold, the February 10, 2017 edition:
A three judge panel of the Ninth Circuit Court of Appeals in San Francisco ruled that the Trump Administration would not be able to stay a decision of a judge in Seattle that temporarily enjoined enforcement of the Administration’s Executive Order temporarily suspending immigration from terrorist hotspots overseas. Despite being a setback for both the Administration and for national security, the conclusion of the Court is not terribly surprising. The Ninth Circuit wasn’t, really, ruling on the merits of the case that is still pending in Seattle. Basically, the Administration was saying that the “Pause of the Pause” wasn’t something that Court could do. The Ninth Circuit said that it was fine. While it’s silly to think that the Court wasn’t considering the super-charged politics surrounding the case, it’s also a fairly narrow ruling that didn’t touch on the actual substance of the case that’s pending in Seattle.
Here it’s important to note that this isn’t legal advice or a legal opinion that I’m offering. Rather, this is just political commentary by someone who is looking at Courts and laws. The Administration has the option to appeal the decision of the Ninth Circuit to the Supreme Court (that breaks down on partisan issues: 4 left, 3 right, 1 center). Mr. Trump’s nominee to the Supreme Court, Judge Gorsuch, isn’t likely to be confirmed until at least late March, but more likely late April. With this in mind, the Administration will have to proceed on the merits of the case in the Federal District Court in Seattle (note: they would have had to do this anyway regardless of what the Ninth Circuit ruled, only now the case is being heard while there is no suspension of immigration from terrorist hotspots).
The Administration’s case on the merits is likely stronger than its case to stop the “Pause of the Pause.” However, it will likely take around a month before the Court in Seattle will be able to issue a ruling. Even if the Administration gets a favorable ruling, the enforcement of the ruling could be stayed on appeal to the Ninth Circuit. Regardless of the outcome in the District Court, it’s likely to come back to the Ninth Circuit for review. The Ninth Circuit would, at least from a cursory look at the case, have de novo review. So, it would get to look at the record and see if the District Court was right. Again, regardless of the outcome at the Ninth Circuit, there’s likely to be an appeal to the Supreme Court. This will likely reach the High Court after Judge Gorsuch has been sworn-in (and, yes, if you’re keeping score at home, the immigration pause from the Administration will have been itself paused for nearly five months at that point). Interestingly, this case will move quickly by legal standards, but if you’re someone concerned about national security, you may see this as a glacial pace.
There are a few “nuclear options” available to the Administration centered around other Executive Orders that would pause all immigration or revamping the Executive Order under consideration by the Court to fall in-line with the concerns of the States. It’s unclear how well these would be received, but, given the outrage after the initial Pause, one imagines more protests.
Early this morning, the Senate voted to confirm Georgia Congressman Tom Price as Secretary of Health and Human Services. Price, a physician, shares the goal of the Administration and the Republican Party that the Affordable Care Act (Obamacare) must be fundamentally changed (likely a full repeal and replacement).
To Secretary Price’s credit, he was proposing alternatives and fixes to Obamacare before the law was even passed. Prescient, Dr. Price realized that the law, as proposed, would collapse insurance markets and attempted to offer fixes. Of course, at that time, Democrats had majorities in both the House and Senate, so Dr. Price, Cassandra-like, was ignored. Now, with the unwieldy law spiraling the drain, premiums spiking, and insurers unable to compete in state markets, it’s up to Dr. Price to spearhead the Executive Branch’s reform efforts.
While Congress will be the major player in the repeal and replacement of Obamacare, Secretary Price actually will have more power over the law, initially. In his role as Secretary, Dr. Price will be charged with implementing the President’s Executive Orders over reducing regulations and stopping the enforcement of provisions that are considered onerous. It’s important to note that Congress delegated much of the regulatory power over Obamacare to the Secretary of Health and Human Services. This was decried as a major foul by civil libertarians at the time of the law’s passage who saw it as a massive shirking of responsibility by Congress and a big power grab by the unelected bureaucracy.
It remains to be seen what Republicans are going to actually do about Obamacare. There’s a fear in the Party that doing anything to upset the “frontloaded basket of goodies” will upset the same “average Americans” who elected President Trump. However, being able to see the eventual demise of the law being imminent (and that it will crash with Republicans in power) is also giving them significant pause. It’s also interesting to consider whether Obamacare was meant to fail and necessitate, in its failure, a move to a single-payer system (because that would be the easiest transition rather than repealing the law, frankly).
Maryland Senate Shenanigans
The Maryland State Senate, which is controlled overwhelmingly by Democrats, are forcing through legislation aimed at a partisan attack on the Trump Administration. Still smarting over their national electoral thumping in 2016, Democrats want to empower Maryland’s Attorney General to bring suit against the Administration whenever he deems appropriate. These actions typically require the consent of the Governor.
In their rush to force through this legislation, Democrats have run, roughshod, over the Republican minority. This caused the majority of the Republican caucus to walk out of the State Senate. However, because Democrats control such an overwhelming majority of the Senate, business still proceeded.
Even the most passive observer recognizes that such partisan antics by Democrats only seeks to enflame the tense dialogue going on in the country in our politics. It’s a shame that Maryland Democrats are using their majority to push for nakedly political resolutions rather than pursuing the common good. More importantly, given that Maryland is heavily reliant on the Federal Government, it seems, facially, irresponsible to take a course of action that could draw the ire of the proverbial hand that feeds the State.
Abe in DC
Japan’s Prime Minister, Shinzo Abe, will visit Washington DC today (and will travel with the President down to Mar-a-Lago—the “Winter White House.”). Despite Mr. Trump’s harsh tone with respect to Japan (“they’re killing us on trade,” etc.), the Prime Minister sees a strong chance of building an early bond with the Trump Administration. Revising bilateral trade agreements is something that both leaders are looking to set in motion, Abe also has the very real and pressing concern over Chinese aggression in the South China Sea. Expect to see a re-affirmation of the military alliance between Japan and the United States.
The presence of US troops at bases in Japan is a sore spot to many of Abe’s critics at home. This isn’t helped by Mr. Trump’s rhetoric that Japan (and other countries) should foot more of the bill for US protection. It’s an important part of the trip for Abe to be seen as representing Japanese interests while still making sure that the United States is committed to a secure Japan.
This will not be the first meeting between the two men. After the election, Prime Minister Abe came to New York to meet with then-President-Elect Trump.
Of course, there are more things going on in the world, but these should be enough to get your day started.