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Deep State: Year 10 of the Obama Administration at HHS?

The opinions expressed by columnists are their own and do not necessarily represent the views of

Somewhere, Kathleen Sebelius is smiling.

When Republicans failed in their efforts to repeal Obamacare, we were assured that Trump appointees would be working furiously to stop the law's worst impacts at the Department of Health and Human Services.

Instead, we are witnessing a rout by the "deep state" that is working overtime to protect—and even expand—Obama's namesake law.

"In a notable back flip," a recent story in the New York Times begins, "the Trump administration has decided that maybe the Obama administration was right in its efforts to change the way doctors and hospitals are paid under Medicare."

The story details a decision—180-degrees at odds with Trump's (and the GOP's) position on the issue—to expand the use of an anti-democratic, wrong-headed Obamacare program of dubious constitutionality.

Obamacare established a "Center for Medicare and Medicaid Innovation," secured it an automatic decennial $10 billion funding source outside the congressional appropriations process, and provided it carte blanche authority to experiment with policy changes it believes would fix Medicare.

It used to be that Congress set health policy. But under Obamacare, CMMI can "deem and pass" its own changes to federal law. The process is essentially as follows: 1) CMMI conducts a "pilot study" on the change it has in mind, 2) CMMI deems the study a success, 3) the change is now the law of the land. 

Those who designed CMMI as a Trojan Horse for government control of healthcare often try to pretend it's a small effort to study ways to cut costs, reduce inefficiencies, and save taxpayer dollars. As we all know, Democrats are just so fastidious with taxpayer funds!

But the Obama aides who initially took over CMMI in 2010 were so exuberant in their mission, they ended up ticking off every Congressman to the right of Bernie Sanders in the process, resulting in a rare rebuke from every member, Republican and Democrat, on the Senate Finance Committee, including Chuck Schumer.

The reason? One of CMMI's initial "pilot studies" changed the benefits for a majority of Medicare recipients—tens of millions of people! CMMI apparently wanted to skip the "deem" part and go straight for the “pass.”

Now, here we are more than a year after Obama left office, and this program is being expanded, in, as the story says, "a notable back flip" from the Trump administration.

One reason that the "deep state," the entrenched power in Washington, D.C. that keeps on going regardless of what voters say, seems to keep winning is that Democrats buried dozens of mines like CMMI in the laws they passed during their short-lived moment of absolute power. 

There are several hallmarks of these programs, including, 1) that they transfer to unelected bureaucrats the legislative authority assigned by the Constitution to our elected representatives, 2) that they are to some degree shielded from public accountability, and 3) that the program's mission is designed, explicitly and implicitly, to further liberal policy goals such as the expansion of government.

CMMI hits all three of these. First, its purpose is to rewrite the law and set healthcare policy. That's supposed to be Congress's job. 

Second, CMMI's funding is outside the congressional appropriations process, protecting it from public accountability. This problem is compounded by defenders who argue that, under arcane budgetary rules, Congress must "offset" future, hypothetical spending cuts generated by CMMI if it moves to restrain its power. (If you believe the Obamabots staffing CMMI are going to save us a ton of money, I have a bridge to sell you).

Third, Obamacare includes numerous limits to the types of policy changes that CMMI can "study." What remains is essentially what they couldn't get into Obamacare because it was too unpopular.

All of which raises the question, what in the world is happening at the Trump administration's HHS that its decision is to expand this program?

Are "burrowed" Obama appointees running the show in the vacuum left by Tom Price's fall from grace? Is it a matter of inattention from a White House with plenty of other priorities to keep them busy? Or have they thrown up their hands in defeat at the prospect of legislating and said, “let the technocrats handle it?”

Whatever the answer, and despite his promises to “drain the swamp,” it seems like the deep state—and Obamacare—are thriving at Trump’s HHS. 

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