At a recent rally in Michigan, the President railed against efforts by the “deep state” to overthrow the 2016 election results as he claimed vindication following publication of the Mueller report.
As VoxFairfax has previously reported, the administration’s frustrations with remaking the nation’s programs and government result, in part, from its own ineptitude and violation of lawful procedures. In 1946, Congress passed the Administrative Procedure Act (APA) in response to the rapid expansion of federal agencies under FDR’s administration.
The purpose of the APA was to provide a process for the adoption and change to federal regulations which, to a degree, operated as legislation. A secondary purpose of the APA was to ensure that such regulations followed the type of legislative process of adoption and change.
On March 27, a federal judge found that Medicaid work requirements proposed by the Trump Administration were “arbitrary and capricious” and not in keeping with the APA. The ruling applied to changes in Kentucky and Arkansas that would have disenfranchised thousands of Medicaid recipients in the two states.
So far, the Trump administration has allowed eight states to begin requiring many of their Medicaid recipients to work, volunteer, or train for a job to be eligible for benefits. Seven other states are seeking permission from the Department of Health and Human Services to impose similar rules.
Seema Verma, the Trump appointee in charge of the Medicaid program, has described the goal as helping people “rise out of poverty and government dependence.”
The court’s decision was issued by an Obama appointee, further exacerbating the “deep state’ paranoia of the administration. In an earlier ruling in June of last year, the same court stated that the proposed Kentucky requirement had not adequately considered whether the new provisions “would in fact help the state furnish medical assistance to its citizens, a central objective of Medicaid.” This judicial criticism is yet another legal criterion of the APA, that regulations or changes thereto are to be based upon substantial evidence.
This new ruling found the approval of Arkansas’s work rule by Alex M. Azar II, the health and human services secretary, to be “arbitrary and capricious,” as Mr. Azar had failed, the judge wrote, to “consider adequately” the impact of Arkansas’s plan on Medicaid coverage.
“The court finds its guiding principle in Yogi Berra’s aphorism, ‘It’s déjà vu all over again,’” the court wrote.
The rulings presented a serious setback not only for President Trump and Mr. Azar, but for Ms. Verma, who has led the call for conditioning government health coverage on work. She has insisted that Medicaid must not be “used as a vehicle to serve working age, able-bodied adults.” And she affirmed her goals Wednesday evening [March 27] after the latest rulings came out. She said:
We will continue to defend our efforts to give states greater flexibility to help low income Americans rise out of poverty. We believe, as have numerous past administrations, that states are the laboratories of democracy and we will vigorously support their innovative, state-driven efforts to develop and test reforms that will advance the objectives of the Medicaid program.
It seems clear that the administration seeks to implement policy changes by revision of federal regulation, but that path is not one of simply conceiving of a better idea or a more politically acceptable one, such as creating work rules for Medicaid recipients as an ideological principle. If the proposed rules are arbitrary, capricious, or not founded upon substantial evidence, they violate stated norms of government process and will be found to be illegal.
As we have observed on previous occasions, the “deep state” is a core of the nation’s civic culture in the development of federal regulations that affect the rights and responsibilities of its citizens. Authoritarianism is frustrated by such normative processes in its drive to effect political and ideological objectives. The deep state does not seek the overthrow of government, but simply that it behave rationally and fairly.