RUTHFULLY YOURS

With the Senate health-care bill delayed for now, the conservative and more centrist GOP wings need to bridge a philosophical gap to succeed. The outcome of this debate will define what the Republican Party stands for—and whether the problems of America’s entitlement state can ever be solved.

The biggest policy divide concerns the future of Medicaid, and here the problem is the moderates who are acting like liberals. Despite their campaign rhetoric, some Senators now want to ratify ObamaCare’s Medicaid expansion as an unrepealable and unreformable welfare program.
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Most of the Affordable Care Act’s insurance coverage gains have come from opening Medicaid eligibility beyond its original goal of helping the poor and disabled to include prime-age, able-bodied adults. The federal-state program has become the world’s single largest insurer by enrollment, covering more people than Medicare or the British National Health Service. Total spending grew 18% in 2015 and 17% in 2016 in the 29 states that expanded, and the nearby chart shows the growth of overall federal Medicaid spending under current law and without reform.

The Senate bill attempts to arrest this unsustainable surge by moving to per capita spending caps from an open-ended entitlement. When states spend more now, they generate an automatic payment from the feds. The goal is to contain costs and give Governors the incentive and flexibility to manage their programs.

Meanwhile, four long years from now, the bill would start to phase-down the state payment formula for old and new Medicaid beneficiaries to equal rates. Governors ought to prioritize the most urgent needs.

This would be the largest entitlement reform ever while still protecting the most vulnerable. The bill is carefully designed to avoid overreach and would save taxpayers $772 billion compared with what Medicaid would otherwise spend under current law, according to the Congressional Budget Office. This does not “cut” spending; it merely slows the rate of increase.

This has nonetheless made some Senators nervous, like West Virginia’s Shelley Moore Capito and Ohio’s Rob Portman. The growth rate for the block grants would be set at the rate of medical inflation for most beneficiaries at the start and then fall to the consumer price index in 2026, which is more ambitious than the House bill. Some Senators would like to see more generous growth rates, while others favor waiting six or seven years, rather than four, to start the phase-down of the expansion.

President Obama has been busy since leaving office. In February he was photographed kite surfing with billionaire Richard Branson in the British Virgin Islands. March brought a visit to Hawaii, followed by four weeks in French Polynesia and yachting with David Geffen, Oprah, Tom Hanks and Bruce Springsteen.

May included biking and golfing at a pal’s luxury hotel in Tuscany, before speeches in Berlin and Scotland, the latter providing the chance to play 12 holes at St. Andrews. Now the Obamas are in Indonesia for a nostalgic return to what was briefly his childhood home. But before jetting off on Friday, the former president, that champion of the poor and dispossessed, waded into the health-care debate with a lengthy Facebook post.

It was a trite, tone-deaf, partisan and condescending attack on the Senate Republicans’ health-care proposal. The comments show that the former president, still prickly and defensive, doesn’t understand how flawed ObamaCare really is.

Mr. Obama sold the Affordable Care Act with well-formulated falsehoods. “If you like your plan, you can keep your plan,” he said repeatedly, and “if you like your doctor, you can keep your doctor.” The law would “cover every American and cut the cost of a typical family’s premium by up to $2,500 a year.” It would “bend the cost curve” for health care, he said, without adding “one dime to the deficit.” None of this was true, and Mr. Obama must have known that.

So did he address these failings in his Facebook post? Of course not. The former president changed his talking points for ObamaCare. “Women can’t be charged more for their insurance,” he bragged—but the GOP proposal doesn’t alter that policy. “Young people can stay on their parents’ plan until they turn 26,” he said—but Republicans would leave that in place, too. “Contraceptive care and preventive care are now free,” Mr. Obama added—except taxpayers actually pay for them with levies on, among other things, hospital stays, medical devices and insurance policies. Meanwhile, Mr. Obama shoved his broken promises down the memory hole.

Mr. Obama did repeat the left’s canards that the GOP proposal “would raise costs, reduce coverage, roll back protections, and ruin Medicaid.” He piously added: “That’s not my opinion, but rather the conclusion of all objective analysis,” starting with “the nonpartisan Congressional Budget Office.”

The CBO, however, did not issue its report on the Senate legislation until four days after Mr. Obama posted on Facebook. And when the CBO report did come out, it didn’t back up his indictment. For example, the CBO concluded: “By 2026, average premiums for benchmark plans for single individuals in most of the country under this legislation would be about 20 percent lower than under current law.”

One could scour the CBO’s report in vain for anything to justify saying the bill would “roll back protections” or “ruin Medicaid.” Under the Senate plan, Medicaid outlays would continue to rise, albeit at a slower rate.

Wielding the left’s favorite new club, Mr. Obama also claimed that “23 million Americans would lose insurance” if the GOP bill passes. But how can that be, since only 10 million people get coverage through the ObamaCare exchanges? Further, how many of those people want insurance in the first place? The CBO says that “in 2018, 15 million more people would be uninsured under this legislation than under current law—primarily because the penalty for not having insurance would be eliminated.” CONTINUE AT SITE

Neil Gorsuch has spent only a fraction of a term as a Supreme Court justice, but few justices have had a more promising start. He has shown himself a careful textualist in reading statutes, a serious originalist in interpreting the Constitution, and an adherent of judicial restraint—and he has done all this with an engaging style that will allow him to reach over the heads of Court watchers and critics to the people. He seems an ideal schoolmaster for the American republic—a jurist whose every opinion is a lucid primer on the civics of our governance.

His first majority opinion in Henson v. Santander Consumer USA was a superb exercise in meticulous analysis of statutory text. The question at hand was whether a law designed to regulate debt collectors applied to a bank that had a bought a debt and tried to collect on it. By its terms, the statute covers those “who regularly collect debts . . . owed or due . . . another.” The bank argued that it was collecting the debt of its own, not of another, since it had purchased the debt. The debtor seized on the past tense of the term “owed” and contended that the debt was another’s because it had been previously “owed” to the party from which the bank bought it. Gorsuch showed the debtor’s argument did not follow from ordinary language because the past tense is often used to describe the present state of a thing, as when one refers to “burnt toast or a fallen branch.” Moreover, he observed that the word “due” was obviously meant only to cover debt that was currently due. Thus, Gorsuch held that to rule for the debtor “we would have to suppose Congress set two words cheek by jowl in the same phrase but meant them to speak to entirely different periods of time. All without leaving any clue.”

His first concurrence, written in Maslenjak v. United States, objected to the majority opinion in the case because it went further than necessary. Here, the issue was whether a statute that made it a crime to lie during a naturalization proceeding covered only lies that caused the government to grant citizenship. Gorsuch agreed with the majority that causation was required, and thus that the lower court must be reversed because of a jury instruction that did not require such proof. But he complained that the Court’s majority then proceeded to craft instructions on the contours of the jury instruction on causation. Gorsuch correctly argued that the better course was to permit lower courts to decide on these details after briefing on the precise questions. The essence of judicial restraint is judicial modesty: the Supreme Court should decide no more than is strictly necessary because it is likely to make mistakes on matters that are not directly before it.

Gorsuch also signaled that he will be an originalist and a strong ally of Justice Clarence Thomas. In Weaver v. Massachusetts, in which a majority of the Court assumed that the right to a public trial extends to jury selection, Gorsuch joined Thomas in demanding that that assumption be tested against the original understanding in a future case. In dissent from the Court’s refusal in Peruta v. California to take a case on the Second Amendment, Gorsuch again joined Thomas in arguing that the lower court had ignored the history surrounding the amendment, which shows that the right to bear arms includes the right to carry them publicly.