Trump's America

by Newt Gingrich

  Throughout his career, Justice Gorsuch has shown his commitment to interpreting the Constitution as written. This is totally counter to what the left-wing faction of the anti-Trump coalition wants. Instead, the Left wants to consider the Constitution a “living document.” In fact, there is a proper way to change the Constitution—the amendment process. This is a multitiered process that involves several big hurdles—not the least of which are two-thirds majority votes in both houses of Congress and ratification by the states. The Left would rather the Constitution be made malleable, based on the whims of left-wing judges, so it can be interpreted to meet current political goals. This is counter to the intent of the Founding Fathers.

  Justice Gorsuch is a good indication that President Trump is committed to nominating originalist, Constitution-following justices to the U.S. Supreme Court. If the president has the chance, I expect he will continue to follow this pattern.

  LOWER-APPELLATE COURT JUDGES

  The media’s gross mischaracterization of Trump-appointed judges has not been limited to Gorsuch.

  One of the first attacks launched by the anti-Trump coalition was directed toward judicial nominee Amy Coney Barrett. Despite Judge Barrett being an extremely accomplished judge and esteemed law professor at Notre Dame, Democrat Senators Dianne Feinstein of California and Dick Durbin of Illinois tried to say that she could not be a fair judge because of her religious beliefs.

  Feinstein and Durbin questioned how Barrett could rule fairly on cases concerning abortion when she is a devout Catholic. This line of questioning truly exposed the depths to which the anti-Trump coalition will go to oppose the president. Senators Feinstein and Durbin were essentially suggesting a religious test for federal judges. Not only was it a blatant, insulting attack on Judge Barrett, and a blatant, insulting attack on all Catholics, it was a blatant, insulting attack on the First Amendment.

  In their effort to discriminate against Catholics and uphold the Left’s pro-abortion agenda, Senators Feinstein and Durbin also discriminated against common sense.

  The Left also waged an attack on the confirmation of Judge John K. Bush. Their focus was a personal Internet post Judge Bush had made in which he commented that abortion and slavery were “the two greatest tragedies in our country.” This, of course, enraged the Left. To the Left, equating ignoring the rights and lives of the unborn with ignoring the rights and lives of African Americans in early America is anathema. It perfectly illustrates the selective morality of the Left. However, what likely infuriated them more were Judge Bush’s answers to their interrogations. Judge Bush rightly pointed out that his political views were irrelevant to the judgeship because “it is not appropriate to bring politics to the bench.” This, of course, is the opposite of the Left’s worldview when it comes to the role of a judge.

  The most vicious attacks on a Trump nomination to the court came against Matthew Spencer Petersen. Petersen’s résumé includes serving as counsel to the U.S. House of Representatives Committee on House Administration; as chief counsel to Republicans on the U.S. Senate Committee on Rules and Administration; and as chairman of the Federal Election Commission. He has indisputable knowledge of the law.

  However, at his confirmation hearing, he could not answer procedural questions, which could be considered common knowledge to most trial attorneys. The anti-Trump media went into a complete uproar, writing headlines such as: “Trump Judicial Nominee Struggles to Answer Basic Legal Questions at Hearing” and “Trump Nominee for Federal Judgeship Has Never Tried a Case.”

  The worst part about this attack is that the media completely overlooked Petersen’s own acknowledgment that he did not follow the same legal path that many federal judges take. Some lawyers rarely try cases. Instead, they handle disputes and matters of law through the transactional exchange of contracts and paperwork. These lawyers don’t argue cases like those seen on TV, but they still have to have a profound knowledge of the law to be successful. By all accounts, Petersen was a very successful attorney with a wide knowledge of transactional, procedural law.

  Rather than tell the truth, the anti-Trump media presented Petersen as just some guy who went to law school who had no legal experience. Unfortunately, the media’s blatant mischaracterization led Petersen to withdraw his name from consideration. He said he didn’t want to distract from the Trump administration’s goals. He went on to say, “I had hoped that my nearly two decades of public service would carry more weight than my worst two minutes on television.”

  The greatest irony here is none of those reporters or anchors who criticized Petersen have an ounce of his legal expertise, yet they feel entitled and qualified to question his credentials. This perfectly illustrates the arrogance of the media.

  THE POTENTIAL TRUMP IMPACT

  Federal courts play an enormous role in shaping the future of our country. As I have already discussed, court decisions on gun rights, abortion, religious liberties, and freedom of speech can fundamentally change America.

  This is why the success President Trump has had in getting originalist judges appointed to the federal courts is so important. These judges serve for life, so the more Constitution-focused judges the president can name to our court system, the more protected our founding principles will be.

  In fact, while the appointment of Justice Gorsuch is tremendously important, Trump’s circuit court judge appointments will have a more enduring effect on the way our laws are interpreted. On average, the Supreme Court only hears 100 to 150 cases a year. It selects those cases from more than 7,000 appeals cases that request rulings annually.

  The circuit and appellate courts across the nation serve as the testing grounds that funnel cases up to the Supreme Court. However, because the Supreme Court hears a relatively small number of cases, the appellate courts have the final word on most federal cases. These courts handle judicial questions and matters of law in every town, city, and state in the union on a daily basis. While the Supreme Court is unquestionably important, Americans are far more likely to encounter circuit or appellate courts in their daily lives.

  President Trump surpassed both Presidents Richard Nixon and John F. Kennedy in appointing appellate court judges. Both Nixon and Kennedy had 11 appellate judges confirmed in their first year in office. President Trump appointed and had confirmed 12. By contrast, Obama had only three appellate judges confirmed in his first year.

  As the Wall Street Journal’s Kimberley Strassel said, “every new president cares about the judiciary, but no administration in memory has approached appointments with more purpose than this team.”

  Strassel rightly pointed out that much of the media has missed the biggest story of the early Trump presidency:

  The media remains so caught up with the president’s tweets that it has missed Mr. Trump’s project to transform the rest of the federal judiciary. The president is stocking the courts with a class of brilliant young textualists bearing little relation to even their Reagan or Bush predecessors. Mr. Trump’s nastygrams to Bob Corker will be a distant memory next week. Notre Dame law professor Amy Coney Barrett’s influence on the Seventh U.S. Circuit Court of Appeals could still be going strong 40 years from now.

  By filling the federal courts with judges who read and interpret the Constitution as it is written, President Trump is protecting the constitutional rights of Americans for generations to come. Regardless of any of his other successes as president, this single achievement will remain the longest-lasting impactful aspect of his legacy.

  Trump is reestablishing and protecting the principles on which our country was formed. Despite staunch opposition from the anti-Trump coalition every step of the way, President Trump continues to blaze a trail of unassailable success.

  CHAPTER NINE

  THE COMEBACK OF AMERICAN HEALTH CARE

  Under President Trump, America is beginning its comeback toward affordable health care.

  Of course, you wouldn’t know this from watching the news. The anti-Trump pundits and analysts view the
legislative failure to repeal and replace Obamacare in one big bill as proof that health care has been a zone of failure for President Trump.

  But as we have covered in previous chapters, President Trump doesn’t accept failure. He just doubles his resolve and tries something new.

  So instead of trying to solve health care in one giant, unwieldy bill, the Trump administration has taken an incremental, 1,000-step approach to health care.

  Across the administration, different departments are exercising their authority over various aspects of the health care sector to not only fulfill the campaign promise to repeal Obamacare, but to also migrate us toward a twenty-first-century system. This system will deliver lower costs, increased access to care, and improved health outcomes. Congress has played a key role as well, passing some significant reforms as part of other bills.

  I have been arguing for such an approach for over a decade, going back to a book Saving Lives and Saving Money, which I wrote in 2003.

  Our current crisis of health care cost inflation, as well as the challenge of uneven access and quality of care, is caused by thousands of different factors. Each of these factors has evolved over decades. It is an act of hubris to try and solve something this complicated and important in one giant bill. No one is that smart.

  In my previous book, Understanding Trump, which went to print before the American Health Care Act (AHCA) failed to pass the Senate, I warned against this all-at-once approach on health care. Given the disastrous results of Obamacare (the last attempt to solve health care all at once) and the inability to pass the AHCA, I am encouraged to see the Trump administration adopt a 1,000-step strategy of incremental change.

  Here are some of the many successful steps the administration has already taken.

  REPEALING OBAMACARE ONE STEP AT A TIME

  Bit by bit, Obamacare is being repealed.

  The individual mandate, which required all Americans to purchase insurance or face a tax penalty, was always broadly unpopular. A July 2013 poll from HealthPocket showed that only 12 percent of Americans wanted the individual mandate to go into effect the next year as scheduled by Obamacare. Even after three years of implementation, most Americans still opposed it. A February 2017 poll by YouGov found that the mandate was opposed by 65 percent of Americans.

  The entire idea of the federal government forcing you to purchase something you don’t want is a violation of the American tradition of limited government and free choice in the marketplace. If the government can force you to purchase health insurance for the greater good of lowering the cost of health insurance for all by getting more healthy people into the marketplace, who is to say it could not enforce other changes in purchasing and behavior? A healthier population is less expensive. If an individual mandate to purchase health insurance is acceptable, why not an individual mandate to exercise? Or an individual mandate to eat your vegetables?

  With this in mind, it is no surprise that the left-wing portion of the anti-Trump coalition supports the individual mandate. It is a foot in the door for an ever more expansive and invasive government. Similarly, it is no surprise that a majority of Americans, most of whom would be considered part of Trump’s America, are dead set against an individual mandate.

  Evidence also shows it didn’t even achieve what it was intended to accomplish. The mandate was actually a poor incentive for people to sign up for insurance. For one, premiums in Obamacare grew so expensive that for many people, paying the penalty was more affordable. Also, as Chris Pope from the Manhattan Institute pointed out, if the mandate was effective, you would have expected enrollment to increase as the penalty increased from 2014 through 2016. Instead, it remained relatively flat.

  So, the individual mandate in health insurance posed a serious threat to the American tradition of freedom, and it was ineffective. This is why one of Donald Trump’s most significant accomplishments in health care has been repealing it through the Tax Cuts and Jobs Act, which passed in December 2017. Ditching Obamacare’s individual mandate was a key part of America’s comeback.

  Remember, when the Supreme Court upheld the individual mandate as constitutional, it did so under the rationale that Congress had the power to tax Americans. This makes repealing it as part of a tax bill totally appropriate.

  Other key parts of Obamacare have been repealed or neutered.

  Many people did not notice that the January 2018 Continuing Resolution (CR), which reopened the federal government after its brief, Chuck Schumer-led shutdown, suspended the health insurance tax for one year. The CR also put off the medical device tax for two years and delayed the Cadillac tax until 2022. Each of these taxes were simply passed on to consumers in the form of higher premiums. These tax delays will put more downward pressure on premiums in 2019.

  The Trump administration also took steps to make it more affordable and practical to purchase health insurance on websites other than healthcare.gov, such as insurance company websites and purchasing aggregators like e-healthinsurance.com. Finally, the Trump administration closed loopholes in Obamacare, which some people were using to game the system to avoid paying their premiums and wait until they got sick to get coverage by falsely claiming a “Special Enrollment Period.” This cheating drove up costs for everyone.

  EXPANDING ASSOCIATION HEALTH PLANS

  Of course, what you replace Obamacare with is even more important than repealing it.

  One of Obamacare’s main flaws was that it set out to make insurance more affordable, but then created so many rules and requirements on insurance plans that it became impossible for insurers to offer truly affordable options.

  At the Department of Labor, the Trump administration took a big step toward creating the type of competitive health insurance marketplace that Obamacare failed to create by issuing proposed rules to expand the use of Association Health Plans.

  I have been in favor of expanding the use of these plans since I was Speaker of the House. They allow groups of small businesses to band together into a single negotiating block to purchase plans from insurers. The greater numbers give the small businesses greater negotiating leverage with the insurers and spreads the risk over a larger group of people. This drives insurance prices down.

  Unfortunately, the rules surrounding these extremely useful plans are so restrictive that they are not currently used to their full potential. For one, they are, at a practical level, very difficult to create across state lines and cannot be fully national in scope. Second, they are not available to the self-employed, which includes groups such as farmers and Realtors.

  The Trump administration’s proposed rule fixes both those deficiencies, giving small businesses relief and potentially making much lower-cost insurance plans available to an additional 11 million people who do not have access to the benefits of employer-sponsored coverage.

  These plans are exempt from some of the more onerous requirements of Obamacare that drive up prices. They do keep some critical protections though. Insurers would still not be allowed to deny coverage based on health status, nor would they be allowed to charge sick people more. This would help prevent plans from “cherry-picking” healthy people into their risk pool to keep prices low, while forcing everyone with serious medical expenses to keep using the individual marketplace, further driving up premiums. Some additional changes to the rules may be necessary to prevent insurers from acting through a broker to achieve the same result.

  The plans would also continue to be regulated by the states, which is important to prevent fraud.

  The Department of Labor issued the proposed rule changes in January 2018. This was followed by a 60-day comment period, which will lead to the issuing of final rules in the next few months.

  LOWERING PRESCRIPTION DRUG PRICES

  President Trump has also taken significant steps to lower drug prices. In his State of the Union Address on January 30, 2018, he declared lowering drug prices as one of his main priorities for the year.

  One of the most effective ways patients ca
n save money on their prescription drugs is by choosing low-cost generics over name-brand medications. The Trump Food and Drug Administration (FDA), under the leadership of Scott Gottlieb, has made it a priority to maximize the number of generic options available to consumers.

  The Trump FDA issued new procedures to shorten the approval process for generics. They are focused particularly on complex, expensive drugs. In addition, Trump’s FDA announced that generic drugs whose name-brand alternatives currently have fewer than three generic competitors would receive priority review among generic drug approvals. Studies have shown that multiple generic competitors are necessary to see the full cost-saving benefits of competition.

  The Trump FDA has also begun to introduce measures to prevent abuse of the drug approval process rules, by which drug companies unfairly blocked generic competition from entering the marketplace. It also publicly identified the drugs which are the most vulnerable to pricing abuse to encourage drug manufacturers to create more generic alternatives to them. This will help prevent future price gouging scandals, such as when Martin Shkreli increased a long-available AIDS drug from $13.50 a pill to $750 a pill. The Trump administration also announced a new agreement with Mylan, who came under intense criticism for raising the cost of the EpiPen. This deal would give Medicaid programs a substantially larger discount for the critical drug delivery device.

  In addition to maximizing the impact generic drugs can have on lowering drug prices, the Trump administration also took needed action to save Medicare patients and taxpayers money on prescription drugs.

  The 340B program—named after the section of the Public Health Service Act that created it—was initially designed to help hospitals that serve large populations of poor patients. Under the program, eligible hospitals are entitled to buy Medicare Part B drugs (used to treat cancer and other serious conditions) at a discount from pharmaceutical manufacturers. They are then reimbursed by Medicare at the full rate, allowing them to keep the difference as profit, which they are supposed to use to fund their charitable care.