TrumpBeat: Yes, There Was Non-Comey News This Week

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A short recap of the week’s news: A federal appeals court heard arguments on President Trump’s stalled travel ban. Aetna, the insurance giant, said it would pull out of all health insurance marketplaces set up under the Affordable Care Act. The director of the Census Bureau retired unexpectedly amid questions over the agency’s funding. Trump announced the creation of a new commission designed in part to fight voter fraud — a problem that most experts agree doesn’t exist.

Oh, and Trump fired FBI Director James Comey.

That last item, of course, is the one that dominated headlines almost to the exclusion of all other news. The Comey story drew wall-to-wall coverage on cable news, dominated newspaper front pages and more or less took over political web sites. (Including this one.) You’d be forgiven for thinking nothing else important happened this week; as the list in the first paragraph makes clear, you’d also be wrong.

One common claim about Trump is that he is a master of distraction, with a knack for making outrageous (but ultimately inconsequential) statements that draw attention away from more important but less attention-grabbing news. Whatever the truth of that narrative in general, the Comey firing was plainly not that kind of distraction. Comey was overseeing an investigation into whether people close to Trump — including his former campaign manager and former national security adviser — were somehow connected to Russian efforts to interfere with the U.S. presidential election. Subsequent reporting has revealed that before his firing, Comey was seeking more resources for that investigation and that it was Trump himself — not his deputy attorney general, as the White House initially claimed — who decided Comey had to go. Regardless of where the investigation goes from here, it is clear that the Comey story was legitimately a big deal.

But whether or not Comey’s firing was “a distraction,” it was certainly distracting — it took attention away from a long list of issues that would under normal circumstances have gotten more notice. To take just one example, Attorney General Jeff Sessions is reportedly planning to toughen enforcement of drug laws. The news didn’t get ignored, precisely: The New York Times put its story on the front page on Wednesday. But it was easy to miss beneath the six-column Comey headline and the deluge of subsequent updates.

Yet in terms of immediate human impact, the drug-policy story is arguably more important than the Comey story. The new policy, if it is enacted, would likely have a huge effect on thousands of families — a disproportionate share of them poor and black. And from a policy perspective, Sessions’ approach would represent a major shift, not just away from the comparatively lenient approach taken by the Obama administration’s Justice Department but also away from what had until recently seemed to be an emerging bipartisan consensus that strict sentencing laws had failed.

The drug-policy news is an interesting example for another reason: It is being carried out by executive action. One of the many unanswered questions surrounding the Comey news this week is how it will affect Trump’s legislative agenda — whether Congress’s other work will grind to a halt amid hearings and investigations, or whether (as Republican leaders insist) business will continue more or less as usual. But even if his agenda stalls in Congress, Trump will retain broad authority to affect change on his own, a power he has used often in his first four months in office.

It’s much too soon to know how the Comey story — or the Russia investigation more generally — will unfold. But no matter how far-reaching the implications, it will never be the only story.

Health care: The clock is ticking

After the House narrowly passed a bill to repeal and replace parts of the Affordable Care Act last week, the Senate quickly announced that it would begin drafting a new bill, and Senate Majority Leader Mitch McConnell gathered a fairly conservative (and entirely male) group to do so. Progress is likely to slow significantly from here, however. It will be weeks before a Senate bill could come to fruition; once a bill is drafted, it will have to be scored by the Congressional Budget Office, a nonpartisan agency that assesses the economic impact of legislation, and then voted on. And all of that is contingent on the Senate coming up with a bill that a majority of members can agree on in the first place, which is no small order. The whole process will take at least several weeks, but it could be much longer, according to some senators.

While the Senate is busy writing and negotiating, the health insurance world will be trying to carry on as normal, and “normal” right now involves insurers telling states what kinds of plans they hope to offer in 2018 and how much those plans will cost. Those are tough numbers to come up with given all of the uncertainty in the insurance market right now.

Insurance companies determine premiums based on predictions of who will sign up for coverage — how old they will be, how sick they will be, and so on. But insurers this year don’t know who will sign up, because it’s not clear whether the federal government will enforce the individual mandate that requires most people to have coverage. That also means they don’t know how sick enrollees will be, because the healthiest people are the most likely to flee the market if the individual mandate goes away. And insurers don’t know the answer to another multibillion dollar question: whether the federal government will come through on payments that subsidize the cost of coverage for the poorest enrollees. If they don’t, the industry will be on the hook for those payments. The answers to these questions may not be clear for months.

In a few states, insurers have already filed plans for next year, and those plans have included some steep price increases, spikes that some companies say are the result of all the unknowns in the marketplace. Other companies are withdrawing altogether. Time is not on the side of insurers, or of the people who buy from them in the ACA marketplaces.

Science policy: advisory opinion

Last week, the Environmental Protection Agency dismissed at least nine scientists from an 18-person scientific advisory board dedicated to reviewing the agency’s research and ensuring that its methodology is sound. According to E&E News, several of the fired researchers had been assured just months earlier that their positions on the board would be renewed. A spokesman for EPA Administrator Scott Pruitt told The New York Times that the administration might fill some of the roles with representatives from industries that the agency regulates.

Scientific advisory boards are independent bodies made up of experts outside the government who (you guessed it!) offer advice based on their scientific expertise. The members are usually academic scientists, chosen from a diverse range of fields, though they can also include scientists employed by industry. There are 197 active advisory committees, spread over 20 federal agencies and organizations, that deal directly with scientific and technical programs. That count doesn’t include other kinds of science-related advisory boards, such as those tasked with selecting research grant proposals or ones focused on specific national policy issues.

The Trump administration, however, seems to be viewing advisory boards with a skeptical eye. In addition to the EPA news, the Department of the Interior this week announced plans to review the way it manages its own advisory boards, both scientific and otherwise. Skepticism of advisory boards, particularly the EPA’s, is nothing new. Since at least 2007, critics have complained that the EPA’s advisory boards are riddled with conflicts of interest because many of the scientists who sit on them are also the recipients of EPA research grants. The House recently passed a bill requiring the EPA to replace academics with more industry representatives and banning anyone who has been on an advisory committee from applying for an EPA grant for five years.

Defenders of the advisory board system argue that such rules would discourage researchers most familiar with current research from applying for board membership. Jonathan Samet, a pulmonary physician and epidemiologist who has served on scientific advisory committees for both the EPA and FDA, said it would be particularly strange to apply the rules only to the EPA, when the same basic conflict exists at many agencies. He said there are other ways to address conflicts of interest; the National Academies, for example, has been working on policies for dealing with exactly this kind of thing for decades. Meanwhile, industry experts are likely to have their own biases. In 1998, for instance, the EPA was taken to task by the General Accountability Office for putting together a scientific advisory board that was so weighted to industry experts that it changed the outcome of a report on the cancer risks of a chemical used in the rubber industry, 1,3-butadiene. The report labeled the substance less dangerous than EPA researchers believed it to be; after the GAO spoke up, EPA decided to throw out that report altogether and classified the risk level of butadiene based on the assessment of its own scientists.

Immigration: Don’t forget about the travel ban

Almost four months have passed since Trump sent the country into a frenzy with an executive order temporarily banning travel to the U.S. from seven predominantly Muslim countries, and it’s been more than two months since the signing of a revised order that bars travel from six of those nations. Trump’s travel ban hasn’t been in the news much lately, but the fight over the order continues. This week, the 4th U.S. Circuit Court of Appeals heard oral arguments in a challenge to the revised order, and on Monday, a panel of the 9th Circuit will hold a hearing on a different injunction.

In March, the latest version of the order was blocked by two separate federal judges, who pointed to Trump’s campaign-trail rhetoric as evidence that its true intent was to ban Muslims from entering the U.S. In 2015, Trump called for a “total and complete shutdown of Muslims entering the United States.” Ahead of the 4th Circuit hearing, the news release announcing the plan was deleted from his campaign website. But opponents of the ban have also pointed to other evidence that the ban is religiously motivated, including a January interview in which Trump supporter Rudy Giuliani indicated that the president’s goal was in fact to ban Muslims.

In its appeals, the Trump administration argues none of that — the campaign statement, the Giuliani quote — should matter because the courts shouldn’t consider anything other than the text of the order. In front of the 4th Circuit, acting Solicitor General Jeffrey Wall said the text and “operation” of the order had nothing to do with the religion. The government maintains that the president has authority to control border entry, but the the ban also has to pass muster with the First Amendment’s Establishment Clause, which prohibits the government from acting with motivations toward religion. Courts often consider outside context when considering constitutional questions.

“Regardless of what any immigration precedent says, with the establishment clause challenge, that precedent is clear,” said Jeremy Kessler, a professor at Columbia Law School who focuses on First Amendment law and who co-authored a brief challenging the ban. “The point of that challenge is often precisely to smoke out the real effect of the government’s decisions and the intent behind it.”

The Trump administration might view the 4th Circuit as more friendly to its case; the 9th Circuit is considered too liberal by many conservatives. But the full 4th Circuit¹ is hearing the case, rather than the more typical three-judge panel, and the court overall has moved toward the ideological center because of Obama appointments. Kessler said both circuits will probably uphold the injunctions, although there could be some narrowing of what is blocked in either case. With Trump’s vow to take the matter to the Supreme Court, that is most likely the next move.