Home – States Brace For Year Of Uncertainty

States Brace For Year Of Uncertainty



There is no better way to describe what lawmakers across the nation will face once gavels come down on new statehouse sessions in January and beyond. While in a normal year the kind of broad gains Republicans made at all levels of government in the recent election would give prognosticators a clear view of what to expect, this has been anything but a normal year.


This is of course due almost exclusively to the shocking and highly unexpected election of businessman turned reality TV star Donald Trump to succeed President Barack Obama. The win, however, was hardly convincing. Although Trump handily won the Electoral College – the only measure that matters – Democrat Hillary Clinton just as easily outdistanced him in the popular vote, Clinton garnered well over 2 million more votes than did Trump, historic in a way but nonetheless a toothless moral victory if there ever was one. If anything, the popular vote tallies are merely a graphic illustration of how divided the nation remains after one of the ugliest presidential campaigns in our history. Perhaps even more telling in that regard: 46.9 percent of eligible voters were so unimpressed by either candidate – or turned off by the campaign’s relentlessly negative and hateful tenor – that they declined to cast a ballot at all, making it the worst voter turnout since 1996.


It is that campaign and some of the more controversial elements of Trump’s stated platform that make 2017 so difficult to presage. Will the President-elect act on his vows to do away with the Affordable Care Act? Or move to round up and deport tens of millions of unauthorized immigrants while also building a massive 2,000-mile wall along America’s southern border? How much will he be influenced by close advisors connected to the so-called “alt-right,” a loose affiliation of groups their critics contend are dominated by white nationalists like the Ku Klux Klan and other hate groups? And will he undo years of states’ efforts to combat climate change and build free trade markets by pulling the country out of international agreements on those issues?


On a more traditional note, will the new president follow through on his plans to invest significant public dollars in real infrastructure projects like roads and bridges, something states have been seeking for years? If so, where will the money come from? If he and lawmakers do discard the ACA – something that as of press time seems likely– will they replace it with something better? And will it actually be more affordable than the current system, which is fast becoming anything but for many consumers? And what will any or all of these potential moves mean to states and to the lives and well-being of their citizens?


The questions abound; answers are hopefully en route. And with those concerns duly noted, the SNCJ staff has again considered a wide range of potential policy issues that state lawmakers will consider and possibly act on in 2017. As always, we will present our thoughts to you over the next three issues, beginning today with a look at issues like health care, marijuana regulation and immigration reform and continuing next week with a look at topics like transportation funding and cyber security. Our esteemed editorial advisor Lou Cannon will close the year with his own insights into these issues as well as numerous other challenges and opportunities lawmakers will face next year and beyond.


ACA Reform: It is hard to imagine anything more likely to face substantial change than President Barack Obama’s signature policy accomplishment, the Affordable Care Act. But exactly what and how remains a mystery. Although President-Elect Trump vowed repeatedly to make it a priority to do away with the ACA as soon as possible, he has already waffled a bit on that promise. Within days of the election, Trump indicated he is now open to keeping certain elements of the law, such as allowing children to stay on their parents’ policy until age 26 and the requirement that insurers accept people with pre-existing conditions.


After that, the waters get murky. Ideas floated by House Speaker Paul Ryan (R-Wisconsin) and Trump’s choice to head the Department of Health and Human Services, Rep. Tom Price (R-Georgia), include creating tax credits for people who buy insurance on the open market, allowing people to buy health insurance policies across state lines, giving states money to set up new government-run “high risk pools” (which mostly went away under Obamacare) for people with serious pre-existing conditions that can’t get insurance on the open market and limiting the tax deductions companies can take for the cost of their employees’ health policies. Ryan’s proposal would also essentially privatize Medicare. Little has been said about the possible fate of health benefits exchanges, though Ryan’s Medicare proposal would use a similar mechanism for recipients to find insurance.


As proposed now, tax credits would be significantly less than the current federal subsidies available for people obtaining health insurance through an exchange. Even so, Anthony Wright, Executive Director of Health Access, a California health care policy advocacy group, says the enormous cost will keep states – even deep blue ones like his – from any attempt to replace those subsidies on their own.


“California will always try to lead in a post-Obamacare world, but it is entirely dependent on what the federal framework and financing allows us,” he says.


Immigration: During the campaign the president promised to deport an estimated 11 million unauthorized immigrants currently living in the United States. Afterward, however, he vowed to quickly deport only between two and three million he says have been convicted of a crime. As the New York Times reports, he is likely basing that figure on federal data that estimates there are approximately 1.9 million “removable criminal aliens.” But over a million of those people are actually here legally, either with a temporary visa or by green card. It is thus unclear if Trump could act on his latest pledge without violating due process. Even if so, he would need the help of numerous state and local police departments, some of which have already said they will not cooperate in such a roundup. That would seem to invite legislative battles – particularly in red states with more liberal urban areas – over whether so-called “sanctuary cities” will be allowed to continue sheltering unauthorized immigrants within local boundaries.


Prescription Drug Prices: A recent Kaiser Family Foundation poll showed that 77 percent of Americans think prescription drug prices are “unreasonable.” While Trump regularly railed about high prescription drug prices during his campaign, he has said next to nothing about the issue of late. Vice President-elect Mike Pence (R), House Speaker Paul Ryan and House Majority Leader Kevin McCarthy (R-California) have all been recipients of significant amounts of pharmaceutical industry donations over the years, so it is questionable how much effort Congress will muster to deal with the issue. That leaves it to states. The industry spent $100 million to convince California voters in November to reject a ballot measure (Proposition 61) that would have limited how much some state agencies pay for prescription drugs, but Ohio is considering a similar measure for 2017. Other states are likely to consider their own efforts, pending any action from Washington D.C.


Marijuana Regulations: Proponents of legalizing recreational marijuana use nabbed their white whale on Nov. 8 as California voters handily approved Proposition 64, making the Golden State by far the biggest to endorse legal weed. But their joy might be short-lived. Trump’s nominee for Attorney General, Sen. Jeff session (R-Alabama), is devoutly opposed to legalizing marijuana and could well act to end legal operations in states that have done so. While it is possible the new administration could send armies of DEA agents to shut down pot dispensaries, it is more likely to file litigation seeking to overturn state legalization laws, a case almost surely to ultimately be decided by the U.S. Supreme Court. But University of Denver law professor Sam Kamin recently told Westworld that even if that happens, it wouldn’t actually make pot illegal again in states like Colorado. Rather, it would only mean the state can’t legally regulate it. 


Gender Pay Equity: Earlier this year, Massachusetts became the first state to bar employers from asking job applicants about previous salary history. The goal was to prevent women – who still earn approximately 80 percent of what men are paid for similar work – from being locked into a perpetual cycle of being paid less than their male counterparts. New York City Mayor Bill de Blasio recently followed suit by issuing an executive order that models the Bay State law in the Big Apple. Those measure came a year after California adopted new laws giving women more tools to battle gender pay discrimination in the workplace. Massachusetts state Sen. Patricia Jehlen (D) says she has been contacted by state lawmakers from Illinois, North Carolina and Texas interested in sponsoring similar measures in their states, and one has already been introduced in Washington D.C. Although some dispute the 80 percent statistic, gender pay equity bills are likely to see action in a number of statehouses in 2017. 


Opioids: States have in recent years been waging a ferocious battle against a scourge of opioid abuse that has led to thousands of deaths across the nation. Combatting opioid abuse has in fact become the rarest of issues – one that has states, the federal government, Republicans and Democrats most often on the same side. In that regard, The U.S. House of Representatives passed legislation last week that will pump another $1 billion over the next two years into fighting the epidemic. Most of that money will go out in the form of grants to programs dedicated to battling the problem. The bill must still pass the Senate and be signed by President Barack Obama. In the meantime, a number of states have opted to limit access to prescription opioids like Oxycontin by making it more difficult for doctors to prescribe them. Expect more of the same in 2017.


Abortion: States have passed hundreds of anti-abortion measures in recent years, and with Republicans now solidly in control of numerous statehouses, governor’s offices and the entire federal government – and with the new president almost assuredly set to choose an anti-abortion justice to fill the empty seat on the US. Supreme Court - more are surely on the way. That could even include another direct challenge to Roe v. Wade, the landmark 1973 SCOTUS decision that legalized the procedure. At the same time, groups including Planned Parenthood filed three federal lawsuits last week seeking to overturn strict anti-abortion laws in North Carolina, Alaska and Missouri. The litigants have vowed additional suits against other states with similar laws, pointing to a majority-opinion SCOTUS ruling last June that struck down a Texas law requiring doctors who perform abortions to have admitting privileges at a local hospital and for clinics which provide the service to meet the same building standards as ambulatory surgical centers.


Gun Rights: Statehouse gains made by Republicans are not likely to quell the annual back and forth between pro- and anti-gun forces. And while gun enthusiasts have a decided edge, gun control advocates have strong allies like former New York City mayor Michael Bloomberg, whose group Everytown For Gun Safety has committed millions of dollars to supporting gun control ballot measures across the states. Three such efforts - in California, Nevada and Washington - were successful on Election Day, while a fourth in Maine failed. But those victories are going to be difficult to replicate in statehouses, where pro-gun advocates are expected to push for ever less restrictive laws, including so-called “constitutional carry,” which would do away with current licensing and training requirements and allow gun owners to openly carry their weapons anywhere they like. Other battles are expected over background checks, campus carry rules and regulations allowing businesses to bar guns from their establishments.

Future of Work: As technology advances to the point where more and more jobs can now be performed by robots or computers – even tasks like driving – so does concern that those innovations will negatively impact the current workforce. And worrying about autonomous cars taking over for current drivers, to name just one concern, is hardly frivolous: 12 percent of the U.S. workforce is employed driving a car or truck. Which puts the onus on lawmakers at all levels to do more to help prepare the current workforce for the changes technology may soon impose on them. That means investment in education and retraining not only for traditional students, but also for older workers and lawmakers alike. It also will require transformative thinking from all parties. Will that happen, or will the two parties continue what has become an ongoing devolution into hyperpartisan gridlock and stagnation? As we said right up front, the answer to that remains to be determined.