Eliminating the Filibuster (Cont.)

by Christoper E. Condeluci, Principal and sole shareholder of CC Law & Policy PLLC in Washington, D.C.

Political “Retribution” – Every Action Has It’s Equal Opposite Reaction

In my last update, I was going to give you some past examples of how Senate rules were changed by the majority party, which set a “precedent” that the opposing party relied on when they became the majority party. I even wrote out these precedential examples in an early draft of my update, only to delete them because my updates are already too long. What are these precedential examples??
- Analysis: First, when the Democrats controlled the Senate (and the White House) in 2013, Senate Majority Leader Reid (D-NV) eliminated the filibuster, BUT ONLY for Federal nominees (like Department Heads, Assistant Secretaries, and other Executive Branch officials that require Senate approval) and also Federal judge nominees (like Federal District and Appeals Court judges). It was argued that the Republican minority was using the filibuster to “block” President Obama’s ability to run his Administration and also to “block” President Obama’s Constitutional duty to fill vacancies on the court. Sooooo, the Senate Democrats changed the rules ONLY requiring 51 votes in these limited cases. Fast forward to 2017, when Republicans re-gained the majority in the Senate (and moved into the White House). In order to get now Justice Gorsuch approved in the Senate, Senate Majority Leader McConnell eliminated the filibuster for Supreme Court nominees. It was argued that the Democratic minority would use the filibuster to “block” President Trump’s Constitutional duty to fill vacancies on the Supreme Court. Sooooo, the Senate Republicans changed the rules ONLY requiring 51 votes in the case of Supreme Court nominees, which not only helped with Gorsuch’s approval, but also Justice Kavanaugh’s approval (and will be used again for the next Supreme Court nominee). In my personal opinion, there has been WAAYYYY too much political “retribution” going on over the last 2 decades. I see NO reason to go into detail on every example of political “retribution” that has occurred just in the last decade, because the examples I gave above are perfect cases-in-point. AND, these examples go back to the heart of my point of BE CAREFUL WHAT YOU WISH FOR. What I mean is this: It is well-accepted that the reason Senate Republicans nuked the filibuster for Supreme Court nominees is because the Senate Democrats nuked the filibuster first. The first nuking of the filibuster set a “precedent” that Republicans were happy to draw on for their own political “retribution.” It is also well-accepted that the Senate Democrats actions of first nuking the filibuster did NOT work out too well for them (because the politics shifted and Republicans were able to use the “precedent” Democrats created against them). In early 2017, Senator Schumer (who could be Majority Leader Schumer soon) even publicly stated that he regretted nuking the filibuster for Federal nominees in 2013 (over what I believe was the fear that “every action has it’s equal opposite reaction”). Importantly, these examples go to the heart of what is going on today as we all speculate on whether the filibuster will be ELIMINATED for ALL legislation – AND – how a new Democratic Senate may respond to Senate Republicans confirming a Supreme Court nominee before the upcoming election (or shortly thereafter). What I mean is, if the Republicans successfully get a new Justice onto the Supreme Court before the election (or shortly thereafter) – and if Democrats re-take Washington, DC in the upcoming elections – there is going to be a WHOLE LOT OF political “retribution” going on. Soooo, I say to Republicans, BE CAREFUL WHAT YOU WISH FOR. Your actions will NO DOUBT motivate Democrats to make good on their insistence on ELIMINATING the filibuster for ALL legislation, and even “packing the Court.” But I also say to Democrats – BE CAREFUL WHAT YOU WISH FOR – at least in the context of ELIMINATING the filibuster for ALL legislation. Because come 2024 or 2028, Republicans could be back in the majority. And the whole cycle of political “retribution” could rear-its-ugly-head yet again, and the actions taken to ELIMINATE the filibuster ENTIRELY could quite possibly haunt the Democrats similar to how their actions in 2013 led to events that they were powerless to stop in 2017, 2019, and again in waning months of 2020.

Last Comment on the Filibuster – “Compromise”

I recognize that in my last update, I tried to defend the filibuster by suggesting that ELIMINATING it would go against the intent of the Founders of our country. BUT, that’s not necessarily what I what I was trying to say. What I was trying to do was make a connection between (1) the fact that the Founders structured the Senate in such a way to protect the rights of the minority party and (2) the fact that the filibuster – in and of itself – protects the minority party in the Senate from getting “rolled” by the majority party (which happens ALL the time in the House).
- Analysis: Let me try to briefly re-focus my comments by citing a passage from a critique of my last update that I received: “Within the context of our two party system, the filibuster’s existence has served to block action and reaction, to promote dialogue in the center, and to encourage compromise. All, in my view, good things.” I cannot AGREE MORE!! Again, my comments about the Founders’ intent was an attempt to illustrate that the Senate was created to act as a “bi-partisan” body. Again, a body that is NOT based on majority rule and the “hot tempers of the House” (as the Founders put it). AND, I was also trying to establish that the filibuster serves – in my opinion – a very important purpose: To get the majority party to “compromise” with the minority party (instead of running all over the minority party). Importantly, in many cases throughout our history, the filibuster was used in this beneficial way. That is, the use of the filibuster yielded patience and compromise in the Senate, which is something the Founders always hoped for. MAKE NO MISTAKE, I also recognize that the filibuster has NOT been used for purposes of yielding patience and compromise. Instead, the filibuster has been used by the minority party for “political purposes” to “block” actions that the majority party in the Senate (and the President at the time) wanted to take. Sooooo, there are 2 sides of the coin here on the filibuster. And, depending on which side of the coin you feel is better or worse than the other, guides you on whether you think the filibuster should be ELIMINATED or MAINTAINED. The compromise-guy-in-me likes the filibuster because it has been proven to yield patience and compromise. And by ELIMINATING the filibuster, I believe that you snuff out compromise and you fundamentally change how the Founders wanted to Senate to operate. However, there are A LOT of people out there who are frustrated over the fact that the filibuster has been used in a negative way, and therefore, they want to GET RID of it. Believe-you-me, I can totally see why you hold that position.

Health Care Policy Update

Everyone Is Talking About the Litigation Involving the Affordable Care Act

I am sure you have been reading news articles about how the Supreme Court vacancy “puts the Affordable Care Act in even more danger than it has ever been in the past.” I am NOT saying that I disagree. BUT – at the same time – I think that the possible outcomes of the litigation are getting a bit over-blown (I explain why below). BUT first, I think we can all agree on this: BOTH parties are trying to use the litigation – and the Supreme Court vacancy – to add to their “messaging” on health care.
- Analysis: Take for one the Biden campaign. The Biden campaign has already stated that it plans to revive the debate over “pre-existing conditions,” which worked VERY well for the Democrats in 2018. BTW, it’s the right “political play.” The Biden campaign also plans on hitting the oft-used phrase of “30 million people will lose their coverage” when the “now conservative” Supreme Court strikes down the ACA (assuming President Trump’s Supreme Court nominee is approved). The Trump Administration is also getting into the mix by “messaging” that the President will protect people with pre-existing conditions if the ACA is struck down by the Supreme Court. Just yesterday, President Trump issued an Executive Order (EO) in an effort to confirm his commitment on protecting people with pre-existing conditions. The EO also speaks to other hot-button health care-related issues like “surprise medical billing” and prescription drug costs, while also re-hashing ALL of the actions the Trump Administration has taken on health care over the past 3 ½ years (which even opponents of this Administration have to admit is actually a fairly long list). Note, we will talk more about the President’s EO in my next update because – notwithstanding my belief that the ACA litigation is being over-blown – I want to focus on the Supreme Court right now. So what might happen to the ACA if President Trump’s forthcoming Supreme Court nominee is approved by the Senate?? My short answer: I think the ACA is going be around for a while. Here’s my long answer, which I will compartmentalize into specific “buckets”:

Bucket #1 – The Supreme Court only has 8 Justices come Nov. 10^th when oral arguments are held: If the 9^th Supreme Court Justice is NOT on the bench by Nov. 10^th, that Justice CANNOT be a part of the final ruling. If only 8 Justices are a part of the final ruling, there could be a 4 – 4 tie. If there is a 4 – 4 tie, the ruling at the Appeals Court level will stand. As you may recall, the Appeals Court said the “individual mandate” penalty tax was unconstitutional. BUT, the Appeals Court punted on whether the entire ACA was unconstitutional and instructed the District Court to re-litigate the question of the ACA’s overall constitutionality (in particular, the question of whether the “individual mandate” penalty tax is severable from the ACA, which if it is NOT severable, then the entire ACA falls). Under this scenario, the entire judicial process would start over, and the legal question on the ACA’s overall constitutionality will NOT be answered until the question makes its way to the Supreme Court in 2 to 3 years from now. Hence my short answer that I believe the ACA is going to be around for a while, at least under Bucket #1.

Bucket #2 – The Supreme Court has 9 Justices on the case: Under this scenario, President Trump’s forthcoming nominee is on the bench by Nov. 10^th. BUT, this scenario also assumes that even if the nominee is NOT on the bench by Nov. 10^th, I believe that Chief Justice Roberts will schedule another round of oral arguments on this case once the 9^th Justice is confirmed, so a total of 9 Justices can be a part of the final ruling. This happened at least in 1 instance when the Supreme Court was waiting on Justice Kavanaugh’s confirmation (i.e., Roberts re-heard oral arguments so there could be 9 Justices).

Sub-Bucket #2A – A Majority of the 9 Justices “remand” the question of the ACA’s overall constitutionality: When the Supreme Court rules, typically it is a FINAL ruling that everyone has to accept. In other words, absent Congress overturning a Court decision through subsequent legislation that changes the statute – and absent a future Supreme Court overturning its own decision – a Supreme Court decision CANNOT be changed. However, the Supreme Court is permitted to “remand” a particular case back to the lower courts. In other words, the Supreme Court does NOT necessarily issue a final ruling. Rather, the Supreme Court tells the lower courts to re-try the case. It’s not out of the realm of possibility that this happens in this case. For example, let’s assume that at least 5 Justices rule that the “individual mandate” penalty tax is indeed unconstitutional. Here, the Court would then turn to the question of whether the “individual mandate” penalty tax is severable from the rest of law or not (and if it is NOT severable, whether this means that the ACA is also unconstitutional). Let’s assume that the Supreme Court does what the 5^th Circuit Court of Appeals did, and the Supreme Court says that the District Court needs to answer this question before the Supreme Court can. Under this scenario, the ACA is going to be around for a while because, as stated above, the judicial process starts all over again.

Sub-Bucket #2B – A Majority of the 9 Justices rule that the “individual mandate” penalty tax is indeed severable: You have heard people talk about this scenario. In this case, at least 5 Justices rule that the “individual mandate” penalty tax is indeed unconstitutional, requiring the Court to opine on whether the “individual mandate” penalty tax is severable from the rest of law or not. We know that Justice Thomas and Gorsuch do NOT like severing defective provisions from a law because they argue that the Court is “re-writing the statute.” Justice Alito also appears to subscribe to this principal, although Justice Alito recently seemed to support severability. But let’s just assume there are 3 Justices who are NOT on the side of severing the “individual mandate” penalty tax from the ACA. Let’s also assume that President Trump’s newly confirmed Supreme Court Justice joins Justice Thomas, Gorsuch, and Alito. That would make 4. HOWEVER, we now know that Justice Kavanaugh is on the OTHER SIDE of this argument, believing that the Court should try to “save” as much of a statute as possible by severing a defective provision WITHOUT taking down the ENTIRE law. AND, we already knew the Chief Justice Roberts is on the side of severability, famously saying that the Court should use “a scalpel rather than a bulldozer” when it comes to determining whether a defective provision of a statute renders the entire law unconstitutional. We can further assume that Justices Breyer, Kagan, and Sotomayor will be on the side of saving the ACA. That makes 5, and you know what that means: The ACA is going to be around for a while under this scenario.

Sub-Bucket #2C – A Majority of the 9 Justices rule that the “individual mandate” penalty tax is constitutional: Here, the Supreme Court will NEVER need to turn to the question of whether the “individual mandate” penalty tax is severable from the rest of law or not. The ACA is going to be around for a while. There are some other scenarios that I can talk through like a majority of the 9 Justices rule that the “individual mandate” penalty tax is unconstitutional, and they rule that the ACA’s pre-existing condition protections and guaranteed issue are ALSO unconstitutional because these provisions are so inextricably linked with a defective provision of the ACA (i.e., the “individual mandate” penalty tax). Under this scenario, the ACA’s Medicaid expansion and Medicare-related changes are going to be around for a while. However, Congress and whoever is President in 2021 will have to figure out what to do about the private insurance markets. Last comment: All is fair in love and politics. Sooooo, I am NOT surprised that the Trump Administration is trying to blunt attacks that the Republicans are going to take away pre-existing condition protections by issuing things like a “messaging” Executive Order. AND, I am NOT surprised that the Biden Administration – along with Congressional Democratic Candidates – are hitting the “pre-existing condition” issue just as hard as they did in 2018.

BUT here is the kicker (in my opinion):

I DO NOT BELIEVE THAT THE NEW SUPREME COURT JUSTICE IS GOING TO HAVE AN IMPACT ON THE FUTURE OF THE ACA.

As you can see from everything I discussed above, this new Supreme Court Justice is NOT critical when we try to “count votes” in this case. This is why I believe the renewed talk about this litigation is over-blown, especially in the context of the Supreme Court vacancy.