United States Senator John Cornyn, the Senate GOP’s #2, joined me this morning:
HH: I came in today so I can talk to my next guest, Senator John Cornyn, the number two ranking Republican in the United States Senate, which last night passed a budget resolution which put Obamacare on the path to repeal and replacement. Senator Cornyn, thanks for being with me this morning.
JC: You bet, Hugh. Thanks for having me.
HH: Now the budget resolution means it goes to the House. I assume it will be passed. And then it goes to two committees in the House, which I believe are Ways and Means, Energy and Commerce, and two in the Senate, Finance, Health, Education and Labor. I’d like to get into the weeds if I could with you, Senator Cornyn. Is that all right with you?
HH: The DC Circuit is ultimately going to decide most of the rules that come out of Health and Human Services that will implement repeal and replace. And the DC Circuit was packed by Harry Reid. It consists of Merrick Garland, age 63, appointed by Bill Clinton, Karen Henderson, who’s 72, appointed by George H.W. Bush, Judith Rogers, 77, appointed by Clinton, David Tatel, appointed by Clinton, he’s 74, Janice Rogers Brown, who’s 67, she’s a W. appointment. Thomas Griffith is 62, he’s a W. appointment. Brett Kavanaugh is 51, he’s a W. appointment. But then there were these four judges jammed through under the Reid Rule – Sri Srinivasan, who is 49 years old, Patricia Millett who is 53, Nina Pollard, who is 55, and Robert Wilkins, who’s 53. That’s a 7-4 Democrat packed court. Can we unpack that court by expanding it in the part of the reconciliation under the Byrd Rule?
JC: Well, that’s a great question. You’re the first person I know of that’s posed that question. We know that Harry Reid did pack the court using the nuclear option that reduced the number of votes that was necessary to confirm a judicial appointee from 60 to 51. And that, of course, is going to come back to bite them when the 103 vacancies that remain in the federal judiciary are going to be filled by Donald Trump when he’s sworn in as president. I hadn’t really given a lot of thought to the use of that in reconciliation. I think, as you know, the parameters are pretty strict there. We’ve looked at some other interesting things like breaking up the 9th Circuit, moving some of these judges to places where they’re legitimately needed in judicial emergencies, places along the border and elsewhere. But you’ve raised an issue I’m going to explore with my staff. I just hadn’t given it that much thought.
HH: It seems to me, if I understand the Byrd Rule, it must go through the committee that has jurisdiction over it.
HH: But in this case, the jurisdiction has to do with the court ruling on all of the HHS rules. Am I right about this, Senator Cornyn, that this court, you know, the Supreme Court just can’t take all the appeals that come out of this court. The regulatory state depends upon, I clerked on this court, so I know it pretty well. It is the place where regulatory rollback and reform of the American economy, and especially of health care, it all turns on what goes on, and this court has been wrecked, not wrecked, these are good people. I’m not questioning the ethics of the four judges put on by Harry Reid, but they were not put on legitimately, and the court has been packed.
JC: Yeah, there’s not, there was no workload necessity for this. It was strictly a way to try to put their thumb on the balance in their favor. But you have made an important point as well that so much of what’s going to happen in terms of replacing Obamacare is going to start at the Department of Health and Human Services with Dr. Price, Dr. Tom Price, a member of the House of Representatives, is confirmed to that position. And one of the things that’s made this a little ambiguous at least at the early stage is we know that first, we’re going to have to see what Health and Human Services can do in terms of reinterpreting some of the rules and regulations that implemented Obamacare to provide some immediate relief to people who are being hurt right now by the fraud, literally, that was perpetrated on the American people when they were told if you like what you had, you can keep it, if you like your doctor, you can keep it, the family of four will see their premiums go down $2,500 dollars, none of which has proven to be true. Actually, the opposite is true. Prices have gone up, deductibles have gone up, people basically have been effectively self-insured and paying out of their own pocket. And so we owe it to the American people to keep our promise. It starts with this budget resolution we passed in the early hours of this morning, then the reconciliation bill that you alluded to, and then we’re going to continue to build a path toward more affordable health care without all the government mandates, without the one size fits all approach, that it’s going to make health insurance more affordable, and people get to choose the coverage they want.
HH: Now Senator Cornyn, I had your colleague, Chris Murphy, on earlier this week. I’m very, very grateful that Senator Murphy would come on a conservative show and talk with me about the Reid Rule. And here’s what we talked about the Reid Rule so you can hear it for some context.
HH: So Harry Reid changed it vis-à-vis the nominees. Straightforward question, Senator Murphy, that precedent has not yet been applied to a Supreme Court nominee, but it clearly applicable, is it not?
CM: The precedent, yeah, I mean, I think the precedent of changing the rules in the middle of the Congress, right, was, you know, was the basis on changing the number from 60 to 50 for presidential appointees, so I assume that that precedent still holds. You can argue against it for policy grounds, but I’m not sure that the precedent changes in this Congress.
HH: So Senator Cornyn, A) it was great to have that admission against interest with regards to SCOTUS…
HH: But it seems to me that the Byrd Rule, which limits what can be done in reconciliation, is also subject to the Reid Rule of 51 votes. Am I right about that?
JC: Yeah, the Senate controls its own rules, and 51 Senators, based on this nuclear option that Harry Reid invoked, you can change the rules or the interpretation of the rules by establishing a new precedent. And that takes 51 votes. Now I will tell you that you know, in the very much tradition-bound Senate, people are loathe to do something dramatic like this, because as you find out, short term gratification leads to long terms grief when the rules apply to you when you are in the minority. I think the Democrats who supported this nuclear option to change the rules to lower the threshold for confirmation of cabinet officials and judges are admitting now that it was a mistake, because now, it’s going to be applied to them when they’re in the minority to their disadvantage. But yes, you’re right, the Senate can change its own rules by either changing the standing rules of the Senate, which takes 67 votes, or invoking the so-called nuclear option and changing the precedent with 51 votes.
HH: So I’m going to lobby you a little bit here, Senator Cornyn. It seems to me that you could invoke the Reid Rule to define the Byrd Rule with regard to the expansion of the DC Circuit by virtue of the fact that it was part of the piece of expanding the DC Circuit, and therefore wouldn’t be germane and part of the nuclear option fallout, while limiting its applicability to other legislation. You will get that. I hope the rest of my audience doesn’t tune out, but I really think we’ve got to fix this DC Circuit. Did that make sense to you what I just said?
JC: Yeah, and you weren’t kidding when you said you were going to get down into the weeds. That’s, boy, that’s, you’re, that’s a subject that a very small number of people really fully comprehend, but no, your point is well made.
HH: Now I want to read to you an email I received, because you were a former justice of the Texas Supreme Court, and a lot of justices listen to this program. The justice who sent this is a different state court justice. I’m not going to name it. He is, or she is not on the short list that President-Elect Trump has put forward, so it’s not someone posturing. They wrote to me Hugh, you’ve done a great job shining light on the Reid rule. As Ted Cruz explained, it’s a parliamentary procedural move, and not an actual rule itself, and the process is applicable to any change to the filibuster, which is contrary to public understanding, and neither a Constitutional provision nor a tradition that dates back to the founding. The first Senate filibuster, I think, was in the 1830s. He continues, your argument for repeal and replace makes sense, but it’s my understanding that much of replace has to come through regular order, and cannot be enacted via reconciliation. That was the reason the death of Ted Kennedy and the election of Scott Brown was so devastating. Democrats couldn’t go back to the Senate to fix provisions, because they no longer had 60 votes. A number of your guests these last few days speak in generalities, and I fear listeners are going to be disappointed when the process doesn’t move as fast as they would like. In the end, some Democrat votes are going to be necessary to pass substantive changes to our health care system, such as it is. Agree or disagree, former Justice Cornyn and now Senator Cornyn, with this sitting justice about the optics problem?
JC: Yeah, things never happen as quickly as you would like when you’re in the majority, but there are a couple of very important political differences now that I think will help us with our repeal and replace agenda. One is you have the math where tens of Democrat are running for reelection in red states in 2018. That wasn’t the case in 2016 when we were playing almost entirely defense as Republicans protecting our incumbents. And the Democrats thought they could vote against all of these common sense measures with impunity. And the second is the unconventional nature and the willingness of our President-Elect to directly intervene. And I think as a political matter, both of those are going to make a big different in terms of our ability to get things done.
HH: So how quickly do you think we can get to a national exchange, one without subsidy and one without penalty for not participating, but one which says basically if you sell an individual policy anywhere in the United States, you’ve got to make it available to anyone? And you know, someone from Vermont’s not going to use a policy in New Mexico, etc. But that will bring competition. It is, to me, the heart of the reform is to get individual policy holders into a marketplace like the Federal Employees Health Benefits program, which I used to run when I was at OPM, and allow them choice. Do you think you can get that done in this session?
JC: Absolutely, absolutely. And you put your finger on it, that the things have made Obamacare unaffordable are all of the mandates that require you to buy coverage that you don’t actually need or want as a price you can’t afford in order to subsidize others within the system. The good news is that 61% of people still get their coverage from their employer, and so it’s not really subject to some of the strangleholds that these mandates impose on policies, although it has made even employer coverage more expensive. What we’re talking about is the individual market where people don’t get their coverage from their employer, or they don’t get their coverage either from the VA, Medicaid or Medicare. That’s literally about 11 million people, about 6% of the people who are covered in the country. Look, what we need to do is to create or stabilize that individual market by creating true completion, and we’re going to do that through a combination of both regulatory action by Health and Human Services under Dr. Tom Price, and legislative action that we’ve already talked a little bit about.
HH: Now we have less than a minute. Adverse selection cripples the FEHB, because open season is every year. Do you imagine open season being annual on the open market when you get to reform, Senator Cornyn?
JC: No, I, you know, somebody said, likened this, since this is not really true insurance in the sense that under Obamacare, you can wait until you get sick. You can pay the penalty and not buy the insurance until you get sick, and then you’re guaranteed issue, that you can buy it, which does create adverse selection. It makes premiums go up, and eliminates the kind of pool that you need of insureds in order to keep prices down. So yes, that’s going to be a key part of the reform.
HH: Senator Cornyn, great to talk to you. I hope you go back to your staff and get the DC Circuit expanded in the next four months so that we can have a fair hearing on all the rules and reforms that come out of this process. You’re a great guy to have as our whip right now. Thank you, Senator Cornyn.
End of interview.