Dan O’Donnell lays out what Congressional Republican leadership has devised to replace ObamaCare, beginning with the parliamentary hurdle:

Before the ink had even dried on the House Republican plan to repeal and replace Obamacare, the American Health Care Act (AHCA), Democrats and Republicans alike were blasting it.

Naturally, very few had a chance to actually read the bill, but that didn’t stop every one of them from giving their opinions on it.  Most have been remarkably disingenuous, especially those that fail to mention the budgetary process needed to get around a Democratic filibuster in the Senate.

A filibuster is all but a certainty, as Democrats have made it their sole mission to thwart the Republican agenda at quite literally every turn.  Heck, they are even delaying President Trump’s Cabinet confirmations longer than any other President’s in American history.

Given that, does anyone really think that they would allow Republicans to just dismantle former President Obama’s singular (and some would say single) domestic policy achievement?  Of course they wouldn’t.  They would filibuster the American Health Care Act and Republicans would be powerless to stop them.

A cloture vote to stop a filibuster requires 60 Senate votes, and since Republicans only control 52 Senate seats, Democrats will be able to stop any Republican legislation by simply announcing plans to filibuster.

Thanks to a change in Senate rules in the 1970s to a “two-track system” of legislation, they don’t actually have to hold the Senate floor for weeks on end; they merely have to threaten it.  Under this two-track system, once they do, if Republicans don’t have the votes for cloture, the filibustered bill (in this case, the AHCA) would quite literally be sidetracked–placed on one track while all other Senate business moves to a second track.  The change to a two-track system led to a dramatic rise in filibusters and the AHCA debate would be no exception: The bill would simply stall in the Senate with no hope of rescue unless Republicans were to win an additional eight Senate seats in the 2018 midterms.

To get any sort of Obamacare repeal and replace measure passed through Congress, then, Republicans need to get around the filibuster.  In a rather ingenious but admittedly limiting move, the House has settled on a method of passing legislation known as “budget reconciliation.”  This allows for a bill to pass through the Senate with just 20 hours of debate and no possibility of a filibuster.

However, there are specific requirements for a bill to qualify for the reconciliation process–most notably that the bill be budgetary in nature.  This means that the AHCA can only repeal Obamacare’s taxes and spending and not its onerous regulations.

Understandably, conservatives are furious that the bill is not tackling what they believe to be the fundamental problems with Obamacare, but the AHCA does repeal the individual and business mandates–generally seen to be the linchpins of Obamacare itself–as well as taxes or tax increases on prescription medication, over-the-counter medication, medical devices, health savings accounts (HSAs), and Medicare.

The bill also repeals the elimination of deductions for expenses that can be allocated to Medicare Part D subsidies, repeals the increase in the income threshold for medical expense deductions, repeals limitations on contributions to flexible savings accounts (FSAs), establishes a refundable tax credit for health insurance, and increases the maximum contribution limit to HSAs.

All of these, particularly the repeal of the individual mandate and the medical device tax, have been things conservatives have clamored for for years.  Moreover, the AHCA completely overhauls Medicaid in the wake of Obamacare’s massive expansion of it.  The Republican bill gives states far more flexibility in administering Medicaid than the remarkably unworkable one-size-fits-all approach of Obamacare.

Yet conservatives understandably want more.  They don’t want the AHCA to merely repeal Obamacare’s taxes and spending, they want to eliminate all of its regulations. Unfortunately, that would necessitate a normal bill that would be subject to normal Senate rules and therefore subject to the inevitability of a Democrat filibuster.

Because of the two-track system, Democrats could keep any such bill sidelined for years and Republicans would be left with neither the repeal of nor the replacement for Obamacare that they so desperately want (and that America so desperately needs).

So House Republicans chose to repeal and replace as much of Obamacare as they legally could using the only realistic means they have of sidestepping Democrat obstruction–reconciliation.

In order to qualify for reconciliation (which can only occur once a year), a measure must be passed by April 15th and, critically, it must be budgetary in nature. Otherwise, it is subject to 2 U.S.C. § 644, more commonly known as the “Byrd Rule” as an homage to former Senator Robert Byrd.

If a bill or a portion of a bill does not generate a net change in either budgetary outlays or revenues–in other words, if it does not explicitly deal with taxing or spending–it is not eligible for reconciliation and would be declared a regular bill and thus subject to regular rules (and a filibuster).

Even an effort to erase the most onerous Obamacare regulations, which one can absolutely argue have an impact on the federal budget, would be subject to the Byrd Rule, which makes a bill that “produces changes in outlays or revenues which are merely incidental to the non-budgetary components of the provision” ineligible for reconciliation.

This is why the bulk of Obamacare’s regulations are not able to be included in the AHCA: They are simply not budgetary in nature.  Were they to be included, Democrats would invoke the Byrd Rule and simply filibuster the measure to what would effectively be its death.

Given this harsh reality, Republicans are wise to use the budget reconciliation process to bypass Democrat obstruction and achieve the bulk of their single biggest campaign promise, the repeal and replacement of Obamacare.

It is only natural that conservatives want the AHCA to do more, but ignoring the fact that Democrats would simply filibuster any effort to completely undo all of Obamacare’s provisions is disingenuous at best and dishonest at worst.

A Democrat filibuster isn’t just a threat, it’s a certainty, and the reality is that passing the AHCA through the budget reconciliation process is quite simply the best option that Republicans have.

So Republicans’ best opportunity here appears to be to repeal as much of ObamaCare as they can without invoking the filibuster, get a larger majority in the 2018 elections, and then do the rest. And that’s an uncertain strategy not merely for the obvious reasons, but because poll results are mixed about how Americans feel about ObamaCare. Great.

University of Tennessee Prof. Glenn Harlan Reynolds:

So President Trump set off a firestorm over the weekend with a series of tweets alleging that Obama had tapped Trump Tower. But getting hung up on imprecise language in the president’s tweets isn’t the right way to look at things. What seems to be at true is that the Obama administration spied on some of Trump’s associates and we don’t know exactly how much information was collected under what authority and who was targeted.

As former prosecutor Andrew McCarthy summarizes in National Review, the Obama Justice Department considered a criminal investigation aimed at a number of Trump’s associates. When they didn’t find anything criminal, they converted the investigation into an intelligence probe under the Foreign Intelligence Surveillance Act. Elements of that story have been confirmed by The New York Times, the BBC and McClatchy newspapers.

FISA surveillance has to be approved by a special court, which almost always allows the government to spy on people when asked. But when the Justice Department asked to spy on several of Trump’s associates, the court refused permission, according to the BBC. As McCarthy writes, this is notable because “the FISA court is notoriously solicitous of government requests to conduct national security surveillance.”

Not taking no for an answer, the Obama administration came back during the final weeks of the election with a narrower request that didn’t specifically mention Trump. That narrower request was granted by the court, but reports from the Guardian and the BBC don’t mention the tapping of phones..

Former Obama officials issued denials that the former president had anything to do with it, which McCarthy calls “disingenuous on several levels.” Others have characterized them as a “non-denial denial.”

To the Obama camp’s claim that the president didn’t “order” surveillance of Trump, McCarthy writes:

First, as Obama officials well know, under the FISA process, it is technically the FISA court that ‘orders’ surveillance. And by statute, it is the Justice department, not the White House, that represents the government in proceedings before the FISA court. So, the issue is not whether Obama or some member of his White House staff “ordered” surveillance of Trump and his associates. The issues are (a) whether the Obama Justice Department sought such surveillance authorization from the FISA court, and (b) whether, if the Justice Department did that, the White House was aware of or complicit in the decision to do so. Personally, given the explosive and controversial nature of the surveillance request we are talking about — an application to wiretap the presidential candidate of the opposition party, and some of his associates, during the heat of the presidential campaign, based on the allegation that the candidate and his associates were acting as Russian agents — it seems to me that there is less than zero chance that could have happened without consultation between the Justice Department and the White House.

And as journalist Mickey Kaus commented on Twitter, there’s a reason why presidents name trusted allies as attorney general. As close as former attorney general Loretta Lynch was to Obama, and as supportive as she was of his political goals, it seems very unlikely that this was some sort of rogue operation.

It’s certainly not impossible to believe that the Obama administration spied on Trump. Obama wouldn’t be the first president to engage in illegal surveillance of opposition candidates, and his administration has been noted for its great enthusiasm for domestic spying. In an effort to plug embarrassing leaks, the Obama administration spied on Associated Press reporters and seized the phone records not only of a Fox News reporter but also of his parents. Obama’s political allies even alleged that his CIA spied on Congress.

Nor is it unbelievable that under the Obama administration, supposedly non-partisan civil servants would go after political opponents. After all, the notorious IRS scandal was about exactly that.

Trump has called for a congressional investigation, but what this really needs is a special prosecutor, someone from outside the politically tainted Justice Department, to look into the political abuse of surveillance laws by the Obama administration. Maybe, upon investigation, it will turn out that nothing improper happened — that this is a lot of smoke, but that there’s no fire. But we can’t know without an investigation, and if there really were political abuses of the Justice Department and the intelligence surveillance process, those guilty should not simply be exposed but go to jail. Such abuse strikes at democracy itself.

Note that FISA surveillance is severely limited and requires information from surveillance to be kept very secret or, if not relevant, deleted. If those limits were exceeded, if Obama officials lied to the court, or if the information was — as it appears to have been — excessively shared within the government, or leaked to outsiders, those are all serious crimes, as First Amendment attorney Robert Barnes notes.

Watergate brought down a presidency, but if the worst suspicions here are borne out, we’re dealing with something worse. Hopefully not, but there’s no way to tell at this point. As The Washington Post has been saying lately, “Democracy dies in darkness.” Let’s shine some light on what the Obama administration was doing during this election.