Experts Provide a Look Ahead at “Congress, the Executive Branch and the Trump Administration”
January 19, 2017
As Washington, D.C., and the country prepares for a new administration, a panel of professors and other experts weighed in on what a Republican president and Congress could mean for the Affordable Care Act, Supreme Court nominees, financial regulation, filibusters and more.
Georgetown Law Professor Victoria Nourse — former chief counsel and senior adviser to Joe Biden as vice president and Senate Judiciary Committee chairman respectively — led the January 17 discussion with Georgetown Law Professor David Super, Professor from Practice Tim Westmoreland, Joshua Huder of Georgetown University’s Government Affairs Institute, Jeffrey Peck of Peck Madigan Jones, and Perry Apelbaum, staff director and chief counsel of the House Committee on the Judiciary. “Things are moving very fast on Capitol Hill,” Nourse said.
Westmoreland, a former director of the Medicaid program and former counsel to the House Subcommittee on Health and the Environment, noted that “a cohesive block of 218 people in the House of Representatives can do almost anything short of violating the Constitution.” In the Senate — assuming that the filibuster rule is retained — 60 votes are needed, except with respect to budget reconciliation where a simple majority holds. The Byrd Rule, however, restricts reconciliation to items directly affecting revenue or spending, a determination made by the Senate Parliamentarian.
The 2015 attempt to repeal elements of the Affordable Care Act (ACA), Westmoreland noted, did not address health insurance regulatory reform, perhaps because it was “widely believed” that including this would violate the Byrd Rule. “That’s really in the eye of the Parliamentarian…” Westmoreland said. “We’ll have to see whether it stays out now, and whether it’s ruled out as violating the Byrd Rule that can’t be touched, or whether it is the subject of debate.”
Westmoreland and Super were skeptical about whether the ACA will be replaced effectively any time soon. “Given that it has now been [almost] seven years since the [ACA] passed and no replacement strategy has been promoted, and there are some pretty strong economic reasons to believe that no replacement is possible that would keep millions of people from losing coverage…,” Super said, “I think there is a strong suspicion that there simply is no meaningful replacement coming.”
“Use your voice”
Whichever side you are on politically, Nourse said, it is important for lawyers to have a voice — particularly where the Constitution is concerned. “This [could mean] full employment for constitutional lawyers on either side, because these questions are not easily answered; there’s not a lot of prior litigation involving rules in the House and the Senate,” Nourse said. “These are the kinds of things you can contribute to as a lawyer or as a citizen.”