Transcript of David Rivkin’s appearance on Bill Bennett’s Morning in America radio show on November 18, 2013.
BILL BENNETT: David, it looks like the President lied [when he said], “if you like your plan you can keep it.” Is there any way to take legal action against the President’s administration or HHS [Dept. of Health and Human Services] for this deception?
DAVID RIVKIN: Well no, if somebody in the private sector has done that, there will be all sorts of criminal and civil options, but you cannot prosecute the President under any of those statutes. The price that he has to pay is the political price and, unfortunately, he’s not going to pay the full price, given the way the media and national Democrats are looking at it. It also, frankly, further undermines the trust of the American people in the government.
One brief point: In the news shows over the weekend, people were comparing Obama’s statements with some other deceptions, including Watergate. I love it. A point I love made by Bob Woodward was that he’s not a horrible guy, he’s just trying to do the good thing. It’s one of the worst possible lies you can imagine: the President deceiving the American people by the major court provision of his political legacy, a statute that he hoped would define his presidency, and, frankly, doing it to win elections. I think he would have lost in 2012, if not for this lie. So it’s possibly one of the worst deceptions in our history– and I am using the word worst advisedly in a measured fashion.
BILL BENNETT: Well he would have lost the election I think. More surely, we wouldn’t have had ObamaCare, right?
DAVID RIVKIN: It would have not have been enacted– you’re absolutely right. There would have been enough Democrats that would have not wanted to go down that path. To define for listeners, we’re talking basically about not only about the people in the individual market, but the group market. We’re talking about changing for the worst the insurance arrangements and the actual coverage of dozens of millions of Americans in an effort to accomplish this goal that the President set out of covering the uninsured, which probably would not work anyway. If you tell the American people that dozens of millions of people would lose access to their doctors and hospitals and pay a lot more for services they will never need to cross-subsidize others. I think that would not have happened even if the Democrats had controlled Congress.
BILL BENNETT: Two others and I want to get our listener here in who works with high-risk insurance pools. If I am told on Thursday, as I was by the President, if you like your plan you can keep it another year, can the insurance companies pull this off and will the state commissioners do this? How big of a scramble does this throw them into?
DAVID RIVKIN: Highly unlikely. In a huge scramble, it typically takes 6-8 months for an insurance company to figure out what the rates are for the renewal of the same type of policy. And not just the rates–the range of roughly comparable provider coverage as far as the providers’ network is concerned. This needs to be approved by the state’s insurance commission. It’s virtually impossible to turn on a dime. I suspect that there may be some states with Democratic insurance commissioners that will basically tell the insurance companies, “Look, though it’s not actually very sound, why don’t you give people roughly the same rates and roughly the same network and, wink-wink, go for it?” So there may be some people that are gaining some facsimile of their cancelled policies, but it’s not going to work, certainly not on a large scale. Now one last point: why would insurance companies left to their own devices and not because they’re vicious, but because they’re driven by sound market principals, want to invest in a product that has a short term shelf life of one year?
BILL BENNETT: Because their bread’s still buttered with the Obama administration and because they are a risk holder and they can get subventions from the government later on if they come up short. They want to cozy up. Is there any argument for that?
DAVID RIVKIN: There is some argument to that, but they also have shareholders. Bill, I think what you are describing afflicts more the associations that have been, how shall we say, cooperative with the administration, but not so much individual companies. Look, there will still be some coverage but the bottom line is it’s not going to work; it’s not about one year. What about beyond one year? Because, remember, he didn’t say you can keep the policy you like and the doctor you like for one year, he said you can keep it period.
BILL BENNETT: That’s correct, right, so it’s a hedge there. Now, third question: Can the President do what he did on Thursday?
DAVID RIVKIN: Of course not; it’s another example of suspension power, which I’ve discussed and written about quite a bit before for The [Wall Street] Journal. It’s a fancy word describing the President’s power unilaterally to basically not implement in the wholesale fashion part of a law or a portion of the law he doesn’t like. He’s done it relative to the mandate on small business on ObamaCare. He’s done it with No Child Left Behind, and he’s done it with regard to the Dream Act. He’s doing it now repeatedly like it’s no big deal.
BILL BENNETT: Appetite comes with eating. I’ve got one for you: human desires increase with the means of their gratification.
DAVID RIVKIN: That’s much more profoundly put than I could. This is totally unlawful, but I’m anticipating part of your question: there’s really nobody who can challenge it, standing-wise, and, in part that’s so what’s so insidious with suspension power.
BILL BENNETT: Let the record show I was more profound than David Rivkin for 30 seconds. All right, if that’s the case, is somebody going to sue the President? If not, sue him, take him to court? Can somebody say you can’t do that?
DAVID RIVKIN: If you have somebody who’s been injured by the President’s unilateral action, you could certainly do that, but not in this sense. If you think about it, the President basically said to insurance companies, you don’t have to, but if you want to, you can offer this plan, which, by the way, is banned. But no individual has to go down that path, so nobody has been “injured” within the meaning.
BILL BENNETT: But it’s the law. Supposing somebody says, OK I heard what he said and the insurance companies cooperate and says, put those policies back in and you can do it. Then the person takes the policy and then sues them because it doesn’t have maternity care, and they cite the law that it required maternity care and it’s not in this policy.
DAVID RIVKIN: That’s an excellent possibility as well, a real possibility. By the way this is why the insurance companies would be very reluctant to do that. You’re absolutely right. Even if you’re assuming no suspension power, there’s excising enforcement discretion. Enforcement discretion means that just because I’m not going to enforce the law, doesn’t mean you’re not breaking it. So you’re right, if you buy this noncompliant policy and have a dispute, it will be very difficult for an insurance company to prevail. They will have to admit in court that they’ve written an unlawful policy. In this context, you could have a lawsuit against an insurance policy, but it’s really not possible to bring this against the President.
BILL BENNETT: Is George Will correct when he keeps saying, a Republican president, is this perfectly analogous? I’ve decided that capital gains tax—it just isn’t right, so we’re not going to enforce it.
DAVID RIVKIN: George Will is absolutely right and I’ll give you one better. If this stuff stands, a Republican president would never have to pass any form of tax reform. You could just issue a long executive order that basically says I’m going to construct bylaws to collect from the following individuals at this rate and while we’ve got everything else, I’m going to exercise my enforcement discretion. So you could have your own version of the Internal Revenue Code entirely on your own.
BILL BENNETT: So this is really renegade stuff isn’t it? I mean it’s really operating outside the law.
DAVID RIVKIN: It’s operating totally outside the law and, by the way, you can gut environmental protection laws and do many things. The framers would have been aghast. One of the reasons for the language “faithfully executing the law” is precisely that we did not want to have this situation. Think about it this way: legislature is completely irrelevant, you can pass any law you want, and the President will rewrite it to his or her liking.
BILL BENNETT: So what’s the remedy? Political impeachment I suppose?
DAVID RIVKIN: Yes, but again, we unfortunately have a situation where institutional interests don’t matter as much as partisan interests. It makes me wonder if people such as the late Senator Byrd or late Senator Kennedy were around, would they allow partisanship to trump this. It’s not just about what’s in the Constitution: it basically—let’s use a fairly colloquial term here—it disses Congress. Congress is irrelevant. Mr. Reid doesn’t seem to care one wit about this.
BILL BENNETT: You would think there would be one champion on the other side. Kevin, you’ve been listening to this conversation, jump in, because you work with high-risk insurance pools.
KEVIN- I’m just in the background. We tried to depopulate the high-risk insurance pool in Washington several years ago, so I’m familiar with it. The observation I have certainly in reference to Louisiana is that this whole idea of buying policies across state lines is a canard, because nobody is going to sell a policy in another state that’s not been approved by the Department of Insurance. No department and no insurance company are going to create a policy for another state that’s not based on usual and customary charges generally located to the zip code. So it’s kind of one of those things where you have this issue where it sounds really nice, it sounds like a free enterprise thing, but the technicality is it’s unworkable.
BILL BENNETT: Let’s talk about the Obama fix. This is what I wanted you to comment on.
KEVIN- Well it wasn’t a fix. It didn’t work for me as a voter and I don’t think it’s going to work for the population.
BILL BENNETT: Can it work for the insurance companies? That was the question.
KEVIN- Well you’re going to have Board of Directors fights, shareholder fights that will be absolutely incredible no matter what choice companies like Cigna or Aetna make. It’s going to get ugly in the quarterly meetings.
DAVID RIVKIN: Can I just say something, Bill? It’s a very interesting point that makes me think of something else–insurance companies—if they want to issue those noncompliant policies would face tough choices relative for the FCC filings. Do they say in their filings that they’ve just broken the law but they don’t think they will be prosecuted, which case they might get sued by one set of shareholders? On the other hand, if they don’t put it down in the FCC filings, they could get sued by another set of shareholders and most insurance companies have to file significant compliance with their state regulators. What’s amazing here and everything else aside, this administration seems to have a total disregard for the normal operations of business and the rule of law on all levels.
BILL BENNETT: I think so. So it if this one of the worst violations that the law be faithfully executed that we’ve seen by a president, what do we do about it? Impeachment seems to be too big a hurdle. Elections are coming but not until 2014. No remedy in court or lawsuit David?
DAVID RIVKIN: Not in this instance, I would say, Bill, you’re doing what needs to be done. At least, let’s stigmatize it, let’s portray it as what it is. There’s nothing worse, I’ll recall a term you’ll appreciate, nothing is worse than dumbing down the Constitution. It dilutes it and that transcends any harm to the American economy and foreign policy that this administration has inflicted on us.
BILL BENNETT: You made me think of one of my three axioms from earlier: thou shall not make the people more cynical, and it certainly does that, doesn’t it? It destroys people’s faith in government, and we need government for things, and it’s not good when government lies to us.
DAVID RIVKIN: That’s right, we need government to do a few things in the proper sphere well and not many things badly and certainly not destroy the Constitution. I blame a little bit on Congressional Republicans who are mostly talking about the policy problems of ObamaCare and not enough about the Constitutional problems, exception Tea Party, perhaps.
BILL BENNETT: No Tea Party is all over this, you’re absolutely right. One would hope that at one of these press conferences someone from the press would say, why are you so cavalier about the law?
DAVID RIVKIN: Right. Well, the answer you’ll get is enforcement discretion and of course that’s not what enforcement discretion does. Enforcement discretion is a case-by-case basis, you say your U.S. Attorney this guy broke the law but I’m not going to prosecute him because resources aren’t there, it’s not a big deal. Law enforcement discretion doesn’t mean you’ll wave in a wholesale fashion this law or that law.
BILL BENNETT: Which is the unwillingness to prosecute these drug cases now?
DAVID RIVKIN: Same thing. It’s another example of the suspension power of the Attorney General Holder memo. Perfectly fine not to prosecute a given case, only the federal government can enforce laws. We don’t have private attorneys unlike some other countries. If you essentially tell them in a memo, don’t prosecute the following types of offensives to fullest extent of the law, you have just gotten rid of the work of Congress. By the way, maybe it’s a good policy. What Obama is doing is both unconstitutional and bad policy. But there could be incentives where something is very attractive as a matter of policy—but we’re about laws, we’re about processes. It’s not about policies always.
BILL BENNETT: Chris in Michigan, go ahead Chris.
CHRIS- Since someone can take this policy and sue their insurance company if it’s not good enough under ObamaCare. If I as a person have to get a policy that’s good enough and my company is supposed to provide it because they have more than 50 employees and they don’t provide it. Even though Obama has given them a waiver technically, Obama doesn’t have the authority to give that waiver either. So can’t I sue my company and the insurance company then, which is possibly why companies are moving forward with it anyways?
DAVID RIVKIN: You’re talking about the previous exercising of power, Obama delayed by one year a company below 50 workers x, y, and z. It’s possible to do it, you would have some serious insurmountable problems for two reasons. First of all, you’re talking about only one year, if you think about how long it takes to litigate, the case may eventually become moot. Aside from that it would be very difficult for you to prove that you did not get coverage because of an ObamaCare delay by the President because, remember under ObamaCare law, your employer may drop you and all an employee has to do is pay the penalty. So technically speaking, the employee’s obligation is to the government, not to you.
BILL BENNETT: Last question: outside the legal and constitutional, where’s this going? A couple people have said wait two years after we get the website fixed, there will still be a lot of unhappy people, but there will still be a lot of happy people, too, who weren’t getting healthcare before and will be getting it now. If you look at the public, it might be close to a draw, do you think that’s an accurate prediction?
DAVID RIVKIN: I’m afraid so. There are a lot of pundits saying, my God, it’s going to collapse next year. Two answers: first of all, you’re going to have a lot of unhappy people, my prediction and that of others is not the individuals in the individual market, millions of people particularly in the small business market would have their policies dramatically changed and dropped so they will be very unhappy. On the other hand, you will have a lot of people who will be cross-subsidized. Let’s be clear: this policy doesn’t hurt everybody, it hurts dozens of millions and it gives goodies to a smaller percentage who will feel it more intensely. The last point is, it’s very bad to do it this way. if you want to take care of the poor and the needy, raise taxes and pay the political price. There’s nothing worse than doing it with these interlocking cross-subsidies by subsidizing somebody else.