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OTHER VIEW
Other View: Self-defeating? Yes. Legal? Maybe

The following editorial appears in Saturday’s Washington Post:

The speed and enthusiasm with which two federal courts halted President Trump’s latest travel executive order might suggest that the revised policy is as obviously problematic as the last, which was a sloppy rush job that the government poorly defended in court. In fact, the revised policy, while still more likely to harm than help national security, is legally far more defensible. Decades of precedent instruct judges to defer to the executive branch on immigration and national security matters such as this. It should surprise no one if the Supreme Court eventually allows the Trump administration to proceed.

Among other problems, Trump’s first order essentially broke faith with foreigners who already had commitments from the government, violating their right to due process. In contrast, the revised order would not deny entry to lawful permanent residents or visa holders.

Two federal district court judges nevertheless blocked implementation of the new order this week, finding that it violates the First Amendment’s establishment clause, which demands separation between church and state. Judge Derrick K. Watson relied on previous rulings that government actions “must have a primary secular purpose” as he rejected the national security rationale the Trump administration offered and concluded that Mr. Trump’s transparent aim was “temporarily suspending the entry of Muslims.” Watson used the president’s previous calls for a Muslim ban, along with a variety of more recent statements from Trump associates, as evidence of Mr. Trump’s discriminatory intent.

But as a thoughtful counterpoint from five judges on the U.S. Court of Appeals for the 9th Circuit pointed out, the Constitution expressly stipulates that Congress can set naturalization policy, and Congress did so in the Immigration and Nationality Act of 1952—which delegates the president broad authority to “suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants.” In the past, when the executive branch’s use of that authority has conflicted with other constitutional principles, such as freedom of speech and freedom of association, courts have been deferential to the executive, acknowledging that immigration policy is a complex subject in which a variety of interests can and do motivate decisions and in which the courts should be wary of substituting their judgment for that of the political branches. In general, courts bow to the government as long as it provides “a facially legitimate and bona fide reason” to act.

Even using that deferential standard, critics could argue that the national security justifications the Trump administration has provided for its order are too thin; as a policy matter, the order lacks the support of logic or evidence, despite the Trump administration’s late efforts to locate some. They could also argue that the establishment-clause interests are so strong that the courts must try to ascertain the president’s authentic motivations, as they have in other contexts.

But judges may well flinch at the prospect of conducting a trial to ferret out the president’s intentions and to craft new boundaries for the nation’s immigration policy, restrictions that could be binding on Mr. Trump’s successors, too. The critics have a strong case that the president’s executive order is self-defeating and offensive to American values. But it is far from clear that the courts will deem it illegal, too.


Mailbag
Letter: Repeal Obamacare, don't replace it

What authority does the Constitution give the federal government to be involved in any way with health care or health insurance? Why not repeal Obamacare in its entirety and let the free market actually be free to work? Sen. Crapo is promoting the American Health Care Act, providing states with $100 billion to "design programs," and giving certain Americans "monthly tax credits." That certainly sounds like another social welfare program, Obamacare Light, imposed at the federal level with financial incentives designed to bind the states to them. If we as Idahoans want to do something about health care that's up to us. But, we must eliminate the monster created at the federal level, not simply replace it with another kinder, gentler monster. Sen. Crapo, representing us, simply doesn't have authority to do this, if following the Constitution he's taken an oath to uphold. Are we as citizens no longer capable of, or allowed to make, intelligent or unintelligent decisions on our own, without the help of the nanny state? I would love in my "life" to have "liberty" restored to my "pursuit of happiness." Please just repeal Obamacare, and replace it with nothing. That's called liberty.

Randy Bergquist

Weiser


Columns
other view
Krauthammer: The real world of Obamacare repeal

WASHINGTON — The Lord giveth and the Lord taketh away, but for governments it’s not that easy. Once something is given — say, health insurance coverage to 20 million Americans — you take it away at your peril. This is true for any government benefit, but especially for health care. There’s a reason not one Western democracy with some system of national health care has ever abolished it.

The genius of the left is to keep enlarging the entitlement state by creating new giveaways that are politically impossible to repeal. For 20 years, Republicans railed against the New Deal. Yet, when they came back into office in 1953, Eisenhower didn’t just keep Social Security, he expanded it.

People hated Obamacare for its highhandedness, incompetence and cost. At the same time, its crafters took great care to create new beneficiaries and new expectations. Which makes repeal very complicated.

The Congressional Budget Office projects that, under Paul Ryan’s Obamacare replacement bill, 24 million will lose insurance within 10 years, 14 million after the first year.

Granted, the number is highly suspect. CBO projects 18 million covered by the Obamacare exchanges in 2018. But the number today is about 10 million. That means the CBO estimate of those losing coverage is already about 8 million too high.

Nonetheless, there will be losers. And their stories will be plastered wall to wall across the media as sure as night follows day.

That scares GOP moderates. And yet the main resistance to Ryan comes from conservative members complaining that the bill is not ideologically pure enough. They mock it as Obamacare Lite.

For example, Ryan wants to ease the pain by phasing out Medicaid expansion through 2020. The conservative Republican Study Committee wants it done next year. This is crazy. For the sake of two year’s savings, why would you risk a political crash landing?

Moreover, the idea that you can eradicate Obamacare root and branch is fanciful. For all its catastrophic flaws, Obamacare changed expectations. Does any Republican propose returning to a time when you can be denied health insurance because of a pre-existing condition?

It’s not just Donald Trump who ran on retaining this new, yes, entitlement. Everyone did. But it’s very problematic. If people know that they can sign up for insurance after they get sick, the very idea of insurance is undermined. People won’t sign up when healthy and the insurance companies will go broke.

So what do you do? Obamacare imposed a monetary fine if you didn’t sign up, for which the Ryan bill substitutes another mechanism, less heavy-handed but still government-mandated.

The purists who insist upon entirely escaping the heavy hand of government are dreaming. The best you can hope for is to make it less intrusive and more rational, as in the Ryan plan’s block-granting Medicaid.

Or instituting a more realistic age-rating system. Sixty-year-olds use six times as much health care as 20-year-olds, yet Obamacare decreed, entirely arbitrarily, that the former could be charged insurance premiums no more than three times that of the latter. The GOP bill changes the ratio from 3-to-1 to 5-to-1.

Premiums better reflecting risk constitute a major restoration of rationality. (It’s how life insurance works.) Under Obamacare, the young were unwilling to be swindled and refused to sign up. Without their support, the whole system is thus headed into a death spiral of looming insolvency.

Rationality, however, has a price. The CBO has already predicted a massive increase in premiums for 60-year-olds. That’s the headline.

There is no free lunch. GOP hard-liners must accept that Americans have become accustomed to some new health care benefits, just as moderates have to brace themselves for stories about the inevitable losers in any reform. That’s the political price for fulfilling the seven-year promise of repealing and replacing Obamacare.

Unless, of course, you go the full Machiavelli and throw it all back on the Democrats. How? Republicans could forget about meeting the arcane requirements of “reconciliation” legislation (which requires only 51 votes in the Senate) and send the Senate a replacement bill loaded up with everything conservative — including, tort reform and insurance competition across state lines. That would require 60 Senate votes. Let the Democrats filibuster it to death — and take the blame when repeal-and-replace fails, Obamacare carries on and then collapses under its own weight.

Upside: You reap the backlash. Downside: You have to live with your conscience.