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Dr. Larry Arnn on the Debate Over the American Health Care Act and the Dismantling of the Regulatory State

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HH: That music portends the arrival of the Hillsdale Dialogue. Once a week, the last radio hour of the week, usually Dr. Larry Arnn or one of his colleagues from Hillsdale College at www.hillsdale.edu joins me for a conversation about something that is big, something that is lasting, something that is essential to the West. However, this week, we have made an alteration. We are talking for the next hour with Dr. Larry Arnn, president of Hillsdale College, because at the bottom of the next hour, a friend of his by the name of Ryan, who is Speaker of the House, has preempted Dr. Arnn. So I want to talk to him about that, being elbowed aside by the Speaker. But first, I have to tell you two things. One, Dr. Paul Rahe from Hillsdale was our guest last week. He was much nicer to me than you usually are, Dr. Arnn.

LA: Yeah, he’s trying to get a gig.

HH: (laughing)

LA: (laughing)

HH: And then…

LA: Paul Rahe is not a very nice man at all.

HH: (laughing) So we had a great conversation. It was friendly, he was civil, he was nice to me. And then last night at a big fete for me at the Nixon Library, 500 people are there, and General Mel Spiese, retired two-star general of the United States Marine Corps stands up and spends my introduction praising you, and saying that this is the best hour on radio. It’s my introduction. You’re even stepping on my introductions now.

LA: This is terrible. You know, I get, so I go out and talk, and you know, I never talk to 500 people. It’s always more than that.

HH: (laughing)

LA: (laughing) But the first question is always tell me about Hugh Hewitt.

HH: (laughing)

LA: (laughing) It’s driving me crazy.

HH: Well, you and I have the same problem, then. Our audiences want to talk about other things. All of our dialogues are available at www.hughforhillsdale.com. I can’t tell you, though, how many people tell me their favorite hour of the week is this hour. And now, they’re going to find that you’ve been preempted by the Speaker, which brings me to my first question, which we’ll bridge to after the break. You have a friend from Wisconsin, I will call him an Article I, Section 2 pal. You have a friend from Arkansas. I will call him an Article II, Section 2 pal, and then you have a friend from Indiana, I will call him an Article II Republican. And the three of them don’t agree on this bill, this American Health Care Act. So if it fails, I’m going to blame you. They’re your friends.

LA: Yeah, there you go. I can’t get my buddies together. It, well, so I got up this morning thinking this. I think that look how hard it was for the Democrats to get the thing through in the first place – months of trying, lost an interim election in Massachusetts, worked every kind of maneuver, and then did it at Midnight on a Sunday night having worked many weekends. And they had a bigger majority in the Senate than the Republicans have right now. So this is bound to be hard, and Trump’s in it now, and spending a lot of time on it.

HH: Yes.

LA: And you know, so all three of these supposed friends of mine you named, they all have an interest in this coming out well. And so, and they can, you know, they have majorities in both congresses, and they can adjust it. So I don’t know. What I think is, I think we’re going to get to watch the sausage made for a couple of weeks here.

HH: David Brooks of the New York Times, estimable fellow, writes this morning, the thing probably won’t pass, but even if it passes, it will probably lead to immense pain and disruption. That will discredit market-based social reform, cost the Republicans their Congressional majorities, and end what’s left of the Reagan-era party. I just had Avik Roy, the smartest guy on this subject, on. He said the Medicaid devolution and capping is the single most important entitlement reform we’ve had in our lifetime, ten times as important as the 1996 welfare reform. How can there be that big of a gap between David Brooks saying it’s the destroyer of all that is good in Regan, and Avik saying it is the completion of the Reagan project?

LA: Yeah, that, well, first of all, hasn’t David Brooks been wise in recent months and years?

HH: Well, he’s gotten many things right, though.

LA: Yeah, has he? Trump?

HH: Yeah. Well, no, no, no.

LA: He wasn’t exactly right about him. So yeah, and that’s right. We are, if we turn this thing into a source of stability and independence, instead of a source of dependence for basic needs on the government, that’s a revolution, and a huge thing.

HH: It’s an enormous thing. When we come back, Dr. Larry Arnn, president of Hillsdale College, and I will talk about the American Health Care Act and his buddies and their disagreement, and why that’s actually a healthy thing. Stay tuned.

— – — — –

HH: Dr. Arnn, I want to go back to your three friends. I remember back during the Balkans war they convened a summit in Dayton. It was called the Dayton Accords that brought the Balkans together. So I’m thinking at Hillsdale, you could have your Article II friend, your Article I, Section 2 friend, and your Article I, Section 3 friend come together and hold hands and kumbaya. This is actually not a bad thing, is it, that Tom Cotton goes on Twitter yesterday and says one, House health care bill can’t pass Senate without major changes. To my friends in the House, pause, start over, get it right, don’t go fast. Number two, GOP shouldn’t act like Dems I O’Care. No excuse to release bill Monday night, start voting Wednesday with no budget estimate. Number three, what matters in long run is better, more affordable health care for Americans not House leaders’ arbitrary legislative calendar. What’s he doing there?

LA: He’s resisting. So the way the process works is it doesn’t matter in the House what the senators, Tom Cotton or anybody says. They can do what they want to. And then when it gets to the Senate, they can do what they want to. And if they pass a bill sufficiently similar, then there’s this third step. And maybe, and one hopes, they’re pointing toward this step. The Senate puts in the changes that Tom Cotton is referring to, and Ted Cruz is referring to, and Rand Paul is referring to, to name three people who are influential over there and talking. Well, then it goes back to Conference Committee. And I learned this from my great friend, Tom McClintock, Congressman McClintock, and your friend, too, Hugh, and because he knows all about this stuff.

HH: And he said yesterday he is warming to the bill, which was a big deal, actually, if people were paying attention.

LA: He’s, and people should visit his website when they want to know, because he’s a really interesting guy. And he, so they take what’s the same in the two bills in Conference Committee, and then they take whatever is required to be added either from the two bills or not to make a whole bill, and they do nothing else, and they pass that. So the point is the squabbling between the two things, that’s, this is the process we know as deliberation. They should, you know, nobody’s, you know, we’re all Republicans here. Yeah, so what? We’ve got to try and pass a good bill. And the deliberative process lets people say what they think. But then they need to bring closure to something here in the intermediate future. I’m not sure it’s got to be done right now. I think the Speaker is going to come on in the next hour and claim that it is. And he knows more about it than I do. If he’s right, then that means Tom Cotton is wrong, that the deadline is artificial. But never mind. Sometime in the next weeks, they need to pass a bill, and everybody starts out by admitting this is not the whole bill. And the reason is this is just the bill that can pass through reconciliation. And I would stick in a word here for another subject, and that is I think Tom McClintock in the recent Imprimis, and everybody should remember he used to be an employee of mine, he’s a friend, in the recent Imprimis, he describes the filibuster. And the filibuster is distorted beyond recognition, and it should be restored. And if it were restored, you wouldn’t need 60 votes to pass a bill. The filibuster would just guarantee everybody got to talk who had something to say.

HH: We will look, and people should subscribe to Imprimis to read that, and I am going to, during the break, send you a piece that I have in the Washington Post today about lawlessness as well, because we’ve gotten away from basic rule of law concepts. But I want to come back for a moment to what Senator Cotton and others are doing. I think they are negotiating the House from the perspective that the Senate really doesn’t want to get a bill that requires that much work. They’re trying to get a bill that requires less work to the Senate. But it seems to me that the House just needs to get a bill to the Senate because of this odd reconciliation process, which by the way, they’re not bound by under the Reid Rule. They can change that. They can change any rule of the Senate. This obstructionism rule of 60 votes is much beloved by our friend, the leader of the Senate. But I’m not sure it’s a good idea, and this goes to what Tom McClintock was talking about. A 60 vote rule was not foreseen by the framers, Larry Arnn. It was not their idea to have a supermajority. It was their idea to have the Senate slow things down, and to be a continuing body as opposed to an ever-elected body. That would slow it down. So we’ve added a hedge against the hedge that the framers did. And I’m not sure it’s a good one.

LA: To the extent that you require a supermajority, you empower minorities over majorities. And so if you happen to be in the crowd that wants to change things, that’s bad for you if you get a majority. If you get a minority, you can’t change them anyway. You can only stop them from being changed. So the real meaning of this filibuster, you see, is it just points at what a legislature is for. What an executive is for is to act. What a judge is for is to decide cases between parties. What legislators do is they argue around a subject until they get some agreement about what the right way to handle it is, and then they write it down and pass it as a law. It is a deliberative body, we say. They argue. Well, the filibuster rule, as Tom McClintock explains it, and he says it’s very ancient. It’s much older than the United States. It’s this, that when there is someone, a member of the body, who is there with something pertinent to say on the subject, and something that contributes in the judgment of the speaker, debate continues for that long. But the idea that you know, what they used to do is just stand up and read from the phone book, you know, for days at a time, and take turns doing it, and therefore the Senate could not go on. What they do now is just go and tell whoever it is that runs the place, the parliamentarian or somebody, and the debate, everything just stops.

HH: And so the question is, the Constitution commits to each house explicitly the control of their own rules. The Senate has adopted a rule that is contra the traditional filibuster, as Congressman McClintock puts out. But it is no doubt Constitutional what they do. We have to persuade them to change that rule, because it’s a bad rule.

LA: Yeah, and it’s a bad rule for a lot of reasons. It’s a bad rule, because it’s a bad idea, right? You don’t, the check on the legislative powers in the Constitutional of the United States, and it includes several, one of them is there are two houses. So you’ve got to do everything twice. You’ve got to deal with Tom Cotton saying I don’t like what the House is doing, and that matters, right? That’s a check. That should be there. The second check is that the President’s got to sign it. The third check is the courts have go to uphold it, or apply it to individuals. So adding this new check, that in the Senate to pass something you have to have a supermajority is certainly not Constitutionally required, and in my opinion distorts the whole thing, because its effect is not to increase deliberation and debate. It’s to call a halt to it.

HH: That is, in fact, buried within this larger question of whether or not the American Health Care Act ought to pass as the question by which means it ought to pass, and whether or not it’s moving too fast. I’m not sure I agree. I’ll talk with Senator Cotton about this next week, that it is moving too fast. It seems to me it’s moving too slow. We’ve been nine years with Obamacare, and it’s absolutely wreaking havoc on the individual marketplace, the small group marketplace, premiums, deductibles, and mostly, I think, on employers who don’t want to go over 50 employees, because they become subject to it. what do you make about the argument that Senator Cotton advances that this is all too fast and we’re acting like Democrats?

LA: You know, so you’re asking me which of my three…

HH: (laughing)

LA: …do I side with?

HH: No, no.

LA: And the answer is the one that says X and the one that says not X, and the one that says never X, I think they’re all right.

HH: They’re all right. And you’ve got to eat with all of them. They all have to come to Hillsdale.

LA: Yeah (laughing)

HH: Let’s talk about your friend in Article II land who is very close to the Article II land’s number one guy. The number one guy is active. He’s on the field of play. He’s doing something that President Obama never did. They criticized him for eight years for being distant from the Congress. President Trump had a score of members down for pizza and bowling last night, if you can imagine it. What do you make of this?

LA: It’s awesome. You know, I’m not, I like Donald Trump. I mean, as he’s doing so far, wowie. And that’s his way, isn’t it? I have a description of various people who went up there to interview in the Trump Tower, and the atmosphere described in the paper this morning is like that was – a lot of people in a room, comfortable with each other, not very much worried about each other, bothering each other over hairs, talking away. And then when Trump decided that he was going to take the various parties that I have this account from into a different room, then him and a couple of people and Trump would go to the different room, and then they’d have a really great conversation of give and take. Well, this is the way free people govern each other, right? They have a long talk, and they think about it, and they, and you find out in the course of it what will you agree to? And that, politics is just like learning. It’s iterative, right? What you’re going to say next depends on what the other guy just said. And so that’s going on. And that’s, I bet you Donald Trump is really good at that, and I’m glad it’s going on.

HH: And when we come back, we’ll talk about that. Did you like the movie Lincoln by Spielberg?

LA: I did, yeah.

HH: It showed in detail how legislating is not the same as conducting a war. It’s actually about that conversation with any number of people over any number of days.

LA: Yeah, that’s it, and Lincoln was very forceful. The movie is, it’s partial, because it’s from that good book by Doris Kearns Goodwin, who is, you know, a capable woman, very much. But it, of course, it’s just one part of a really big story.

HH: Right, but it does for a couple of hours take you close to what it must have been like.

LA: Yeah.

HH: …to bet with the great man.

LA: Yeah, get that thing through.

HH: I’ll be right back, yeah, I’ll be right back with Dr. Larry Arnn of Hillsdale College. Don’t go anywhere, America, except to www.hillsdale.edu. www.hughforhillsdale.com.

—- – – — –

HH: It is, in fact, part of a very large drama, and the way that it is proceeding is in fact a case and point of how the Constitution was put together. We begin next week a longer series of conservations beginning with the Declaration and then working through the Constitution as it was actually set to the states before we get to the Bill of Rights. It’s a little Constitutional education, because Dr. Arnn, for a long time, and I’ve sent you an op-ed to read during the break, we’ll come back and talk about it at the beginning of the hour. Lawlessness has set in. They refer to regular order. We’re not actually remotely close to regular order when presidents are ordering things via executive order, and various things are going on. This is, in fact, the way it was intended to be.

LA: That’s right. That’s right, and you know, this is, we’re making sausage, you know, and sausage is good. Making it is not good. And just think of the magic and greatness of this, and then think, by the way, how much the media loses that magic. A whole lot of people who disagree are talking out loud in front of hundreds of millions of people about what they’re going to do. And then later, they are accountable, those people, for the positions that they are taking. And it’s not a deal worked out in the White House that a bunch of people walk out and announce, right? And nobody really knows quite why they did it, and it gets enforced back on the Congress. This is deliberation, public and argued out. Isn’t that good? I like it.

HH: It is. Now I want to ask you, we have an institution out here in the West called the Pacific Legal Foundation, which you know a little bit about.

LA: Oh, yeah.

HH: And there’s a scholar there by the name of Todd Gaziano, and he’s been investigating this Congressional Review Act, which is a good piece of legislation, which provides that any rule passed by an administrative agency, if it is rejected by the House and Senate by simple majority, it cannot be filibustered, is not only repealed, the subject matter it covered is forever forbidden to that agency. You know, what would require the Congress to actually come back and instruct them to do it to reverse that. It’s a powerful thing. The House Republicans have set up 14 of these repeals. The Senate’s already moved on three of them. That’s terrific stuff. They’re having a debate over what it means about how far back you can go. Does it seem to you that they ought to press that envelope, Dr. Arnn, or take it as the liberals would say, oh, it’s only 60 legislative days, you can’t go back farther than that?

LA: Yeah, I think they ought to press it. And the reason is, so there’s, up until this point this morning, we have been talking about the entitlement state. And that’s one of the two innovations in the government of the United States that make it different than it used to be. The other one is the regulatory state. And the best thing that I know about Donald Trump is his aggressiveness about the regulatory state. You know, Bannon said at CPAC we’re going to dismantle that thing, or whatever he said. And so, and why is the regulatory state bad? It’s because it permits, it unleashes avalanches of legislation, and nobody knows where they come from. And elected people have little control over it. And so Trump has been strong about that. And in fact, it’s been his plan to attack on that, and to leave the entitlements alone, excepting this one thing, Obamacare. And the political calculation in that makes sense to me. I believe that Paul Ryan is right, that ultimately, the entitlement state has got to be reformed so it doesn’t drive us bankrupt, and so it really does provide security for people. But Trump is right, too, and that is people don’t trust Washington. And they think they’re just going to take away what we get out of it, and they’re going to keep what they get out of it. So you’ve got to be gingerly about that. And while I was being gingerly about that, I’d be hard about the regulatory state.

HH: And they’re doing that. Now here’s where the hard, I have a genuine question as opposed to a mere transfer of authority of the show to you. The Congressional Review Act can be used as it is being used, or it can be used duplicitously. And I’m in favor of the latter, but I don’t think it’s duplicitous, because it’s transparently duplicitous, and that is Secretary Price can put forward a vast rule, one that a liberal would love, just enormously confiscatory of the power of the state, and of the power of the individual, and demanding that every health care plan include A through Z. And he could put that out there with the intention, and having coordinated with Paul Ryan and Mitch McConnell that it would be reversed under the CRA, and thus that area forbidden to HHS forever, until the Congress returned. That’s a false flag regulation. Do you think that’s legitimate, Dr. Larry Arnn?

LA: Ooh, I praise you for thinking of that.

HH: (laughing)

LA: (laughing) It is kind of wicked, isn’t it?

HH: It is. It is very wicked, and I wonder if, it’s duplicitous, but it’s transparently duplicitous.

LA: Yeah, there you go. There you go. I said I was a cad, and I was.

HH: (laughing)

LA: (laughing)

HH: But, so I want you to talk to your Article II friend, and your Article I, Section 2 friend and your Article I, Section 3 friend about using the power of the CRA, because boy, if they will go with false flag regulations, which they, you know, hoist the black flag and the skull and bones and fly. I’m coming back. One more segment with Dr. Larry Arnn to talk about lawlessness.

— – – – — –

HH: But I wanted to use our last segment today, because the Speaker of the House of Representatives coming up later in the hour, to talk with Dr. Arnn about me, actually about a piece that I have written for the Washington Post, because I am perturbed by lawlessness, non-Constitutional action at the local level with sanctuary cities, at the state level by passing the legalization of marijuana, contra federal law and the Supremacy Clause, and at the federal level where they feel completely without pause not to build a fence they promised to build, which is one kind of duplicity, and then when the Congress passes the Export-Import Bank, not to staff it so that it operates. Dr. Arnn, what do you make of my overall argument and those four specific examples?

LA: Well, it’s such an important thing. The rule of law is the first principle of civilization. The rule of law only means that the law apply to everyone, strong and the weak alike, and that it is enforced and simple to understand. And the breakdowns are just as you say, and there are others, which is what makes it so hard to fix. There are so many laws now, that no one knows what they are. And they are written in a way so that you can’t, it’s somebody’s judgment what they actually say. And to get to the bottom, so in it, so let’s say you’re a regulator, right, which the chances are you are. Then the law, you’ve got this, like in education, for example, there’s this 400-500 or 600 page law, I don’t know how much it’s grown, about federal student aid. I’ve never read the law. My lawyer told me with contempt that I would be unable to read it.

HH: (laughing)

LA: And that he was unable to read it. And so what happens is they have an expert in this law firm in D.C. that keeps the government from giving us any money, and she is, by his report, the one who knows what it says. So you go before the Department of Education, the first thing is they’re looking at a lot of vague stuff, and whatever ruling they’re going to make about you, a lot of it is up to their discretion, because the law is not simple. And then you cite these four instances of flagrant violation of things that passed by large majorities, and then they just don’t implement them. They don’t do them. It just never happens. And then other things do happen. And once that sets up, then who gets to choose of the things that are laws do get enforced? And the answer is whoever is the most powerful.

HH: Yeah, at the end of this column, I ask a question. As for defenders of sanctuary cities, Ex-Im Bank plotters, marijuana defenders and border fence foes, they should ask themselves do we really want a government at any level to pick and choose which of the Constitution’s provisions will apply today? That way lies arbitrary application of law. Once the law is whatever any authority says it is, the result is chaos. Let’s stick with the Constitution. It’s worked since 1789. I don’t think that’s overstatement, Dr. Arnn.

LA: No, and you just, there’s a really great Mel Gibson movie where he’s a Massachusetts cop, and somebody says it’s illegal to have that weapon here. And the cop, Mel Gibson, says everything’s illegal in Massachusetts.

HH: I don’t know that movie, but I want to watch it, because it’s true.

LA: Yeah, he dies at the end. It’s a good movie. Edge of something. Anyway, he’s, when you, if the, you know, Madison writes in the Federalist, if the laws be so voluminous and changeable that you can’t read them, then it doesn’t matter if they’re passed by the proper processes. That’s a paraphrase. And that’s where we are today, right? If we could bring sense to the regulatory state, then all of a sudden, when a law was unenforced, it would be vivid, and people would be concerned about it, whereas right now, everybody just thinks of it as a constant process to find out who’s strongest on that day.

HH: On that day, that’s exactly right. Edge of Darkness, by the way, is the movie that Generalissimo just whispered to me.

LA: Yeah.

HH: So what is the solution to this? I think a robust application of the Congressional Review Act, but I also think that part of the election earthquake, and I discussed this last night at the Nixon Library, was a revolt of the governed against the governing, not according to law. It’s not that they’re upset being governed by law. It’s they are upset at being governed by elites who are in fact lawless.

LA: That’s it. And so there needs to be a radical undertaking of simplification and also decentralization. If you just think, the thing, the point that you’re illustrating by your article is one of the central points in Tocqueville, Alexis de Tocqueville, Democratic in America, 1830s, he writes that people have a different attitude about law in America than they have in Europe. In Europe, if a citizen sees a public official, he thinks of that as some force that might push him around. In America, they walk up to him and think of him as a right, and they get to tell him what to do. And then, it follows, he says, it’s one of the most beautiful paragraphs in all of that great book. He says that it would never occur to the citizen to apply to the government about a public need, that every citizen who thinks of something forms a committee, appoints himself head of it, and gets to work on it.

HH: Yeah.

LA: And through this means, Americans get to practice governing themselves and each other.

HH: Yup.

LA: Now this way, these laws that you describe in your article, I mean, what does it mean that it takes a specialized $800 dollar an hour lawyer to read them? And in the case of a litigation, it’ll be 15 of them working on the thing. And that means the ordinary person can’t know what the law is.

HH: Doesn’t stand a chance against a regulator, either.

LA: That’s right. And you know, people trying to run a business, people trying to raise a family, people trying to run a college, they don’t get a chance to live in a domain for which they are responsible.

HH: Or if you look out at the vast cities of America when they were very young and growing, nobody requested permission to build anything.

LA: Yeah.

HH: They built it subject to the common law of nuisance. You could not bring the nuisance to somebody. If you did, they, you owed them money if you put a pig farm next to a house and you destroyed the occupancy. The law of nuisance would control that. Now, you have to, at the very beginning, since 1923, city of Euclid, you’ve had to apply to the government for the right to use your land. It was really the first break with the idea of freedom.

LA: Well, I hesitate to bring it up, but Central Hall at Hillsdale College probably does not have a building permit.

HH: Don’t bring that up. Strike the tape.

LA: (laughing)

HH: Strike the tape.

LA: (laughing)

HH: It probably doesn’t, and I don’t know that you’re in compliance with everything they want you to be in compliance with, but regulators dare not go there. What a great story that would make. You could probably raise $25 million dollars off of that. But I, it is a problem. People don’t understand how much we have gone from the Tocquevillian idea of do it yourself, doggone it, and the government has no business in it.

LA: And you know, if you just look at the political battle right now, the battle among the people that we’ve been talking about this morning is one kind of thing, and an old kind of thing, right? It’s the way the government works. But there’s another battle, and that is shall we be governed by an entire class of people whose numbers are ultimately in the millions, if you include the states, who make rules that the rest of us have to live under and don’t understand. And Trump is proposing to cut that back. And they are acting, in my opinion, as an organized class to resist that.

HH: And in that conflict, there’s a lot of people watching that mainstream media, I keep telling people this, Donald Trump has 90% approval among Republicans who are generally were not that supportive during the election, because they are, they’re focused on the signal, not the noise. He generates a lot of noise. Last minute to you, Larry Arnn. The noise is not what’s important here. It’s the signal.

LA: Seems to me that there’s a direction in the man, and I’m glad to see it.

HH: Oh, that’s another phrase I will write down. You know, I begrudge you this occasional glimpse of, you know, you caused me to include the entire Homestead Act in my most recent book just to prove to people it was only four pages long. Settled the West in four pages.

LA: Bravo.

HH: I know. It’s just remarkable. Dr. Larry Arnn, president of Hillsdale College, thank you, my friend. Stay tuned.

End of interview.

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