While the Trump Administration may be doing away with many of former President Obama’s immigration enforcement policies, his moves are really not as one-sided as the press would indicate.  There has been much publicity about the February 21, 2017 release of two memos from Homeland Security Secretary John Kelly, but those memos actually leave in place President Obama’s 2012 Deferred Action for Childhood Arrivals program, which protects young, undocumented immigrants from deportation and provides them with work permits.  The memos also continue President Obama’s 2014 memo expanding DACA and creating the deferred action for parents of native-born Americans and lawful permanent residents.  However, these programs are being blocked by court injunctions and therefore are not really currently effective.  Many of the directives in the Executive Order are an actual attempt to enforce the laws that are already on the books, but that were relaxed under President Obama.

Some say the memos have the effect of sending a strong message to illegal immigrants as a deterrence to illegal entry.  The memos expand the Obama Administration’s focus on immigrants who committed serious crimes to include broader categories of illegal immigrants subject to jail or to deportation.  The Administration also may expand expedited removal, and calls for the aid of local authorities to enforce immigration laws.  The President seems to be moving towards tightening criteria for letting people into the U.S. and to increase searches at the border.  There also may be longer background checks for those seeking visas. 

While some of the press have referred to arrests during "raids" of illegal immigrants, the government asserted that those picked up were "criminal aliens," convicted of various crimes, and were part of targeted arrests carried out by ICE’s Fugitive Operations.  In any event, these enforcement actions were not at employer establishments and were not the type of workplace raids carried out during the Bush Administration.

After going almost 50 years without any state passing a right-to-work law, six states have passed right-to-work laws in the last five years.  The latest two states are Missouri and Kentucky, which became right-to-work states this year.  Now there are 28 right-to-work states.  The only recent setback to right-to-work has been in New Hampshire, where one of the state legislatures defeated a right-to-work bill by a narrow margin.  Virtually all of the states with Republican governors and legislatures have right-to-work laws, except for New Hampshire, which would have been the first right-to-work state in the Northeast.  Other States considering right-to-work laws include Colorado, Connecticut, Maine, Washington, Oregon, New Jersey, and also Puerto Rico.  In addition, some local governments are passing right-to-work laws even if their states have not, but unions are litigating such circumstances contending that a local government may not pass right-to-work legislation, but only a State can.  Right-to-work laws are being promoted as a way to increase employment and economic growth and to attract new business, and there are statistics backing up that claim. 

President Trump has announced his support for the right-to-work concept.  On February 1, 2017, Republican House members introduced a national right-to-work law, which would prohibit "union security" clauses in collective bargaining agreements requiring non-union members to pay union fees or dues.  While the House would likely pass such a bill, which would likely be signed by the President, the bill would be subject to a filibuster in the Senate, requiring 60 votes to overturn.  Republicans have only 52 seats, and thus Democrats could block the bill unless the Senate does away with its filibuster rules and adopts the so-called "nuclear" option.

Unions privately believe that a national right-to-work concept is likely, at least in the public sector.  Only a 4-4 Supreme Court tie vote following the untimely death of Justice Scalia kept such a national requirement in the public sector from becoming the law of the land, on the basis that allowing mandatory contributions to labor unions is unconstitutional.

An increasing number of right-to-work states are having a negative effect on union membership.  Union membership is now less than 11% of the public and private work forces, and approximately one-half of all union members in the U.S. are employed by the government.  Membership in the private sector has dropped to just 6.4%.  Union leaders privately forecast that they will lose over one-half of their membership under right-to-work laws.  Such a loss of membership and dues also adversely affects the unions’ political strength.  Some see a correlation in the loss of union members and Republican gains in mid-western states like Indiana, Wisconsin and Michigan, now all right-to-work states.                       

How Are Unions Reacting to the Right-to-Work Movement

Unions are fighting very hard legislatively, and also in the court system, to defeat right-to-work laws.  Second, unions are moving to reduce their budgets and spending.  Several unions have already announced reductions in their budgets of around 30%.  Unions are also trying to directly address their membership in new and different ways so as to maintain as much membership as possible when dues are no longer mandatory. 

At least one union has attempted to keep its members from withdrawing from "check-off" authorizations, which are lawful even in right-to-work states.  These authorizations require members to have a portion of their paychecks withheld and forwarded to the union as union dues, if they sign a check-off card which is generally irrevocable for a period of one year.  Most check-off authorization cards are vaguely worded so members are not aware of the brief periods each year they can revoke their check-offs without them being automatically renewed.  In a recent case, a Michigan labor union required all members wishing to revoke their check-off authorizations to appear at the union hall in person along with photographic identification.  Local 58, International Brotherhood of Electrical Workers, 365 NLRB No. 30 (2/10/17).  The NLRB said this was an undue restriction on a member’s right to resign, but the union is appealing the case to court.

The relationship between President Trump and organized labor can be described as a "love-hate" relationship.  Building trades generally have said nice things about the President, particularly since he supports building infrastructure and increasing jobs.  Some 40% of union members voted for President Trump, and the President wants to maintain his image as being supportive of "blue collar" concerns.  The unions generally say that they will support good Trump ideas and oppose bad Trump ideas, reflecting their overall attitude towards the President.

After going almost 50 years without any state passing a right-to-work law, six states have passed right-to-work laws in the last five years.  The latest two states are Missouri and Kentucky, which became right-to-work states this year.  Now there are 28 right-to-work states.  The only recent setback to right-to-work has been in New Hampshire, where one of the state legislatures defeated a right-to-work bill by a narrow margin.  Virtually all of the states with Republican governors and legislatures have right-to-work laws, except for New Hampshire, which would have been the first right-to-work state in the Northeast.  Other States considering right-to-work laws include Colorado, Connecticut, Maine, Washington, Oregon, New Jersey, and also Puerto Rico.  In addition, some local governments are passing right-to-work laws even if their states have not, but unions are litigating such circumstances contending that a local government may not pass right-to-work legislation, but only a State can.  Right-to-work laws are being promoted as a way to increase employment and economic growth and to attract new business, and there are statistics backing up that claim. 

President Trump has announced his support for the right-to-work concept.  On February 1, 2017, Republican House members introduced a national right-to-work law, which would prohibit "union security" clauses in collective bargaining agreements requiring non-union members to pay union fees or dues.  While the House would likely pass such a bill, which would likely be signed by the President, the bill would be subject to a filibuster in the Senate, requiring 60 votes to overturn.  Republicans have only 52 seats, and thus Democrats could block the bill unless the Senate does away with its filibuster rules and adopts the so-called "nuclear" option.

Unions privately believe that a national right-to-work concept is likely, at least in the public sector.  Only a 4-4 Supreme Court tie vote following the untimely death of Justice Scalia kept such a national requirement in the public sector from becoming the law of the land, on the basis that allowing mandatory contributions to labor unions is unconstitutional.

An increasing number of right-to-work states are having a negative effect on union membership.  Union membership is now less than 11% of the public and private work forces, and approximately one-half of all union members in the U.S. are employed by the government.  Membership in the private sector has dropped to just 6.4%.  Union leaders privately forecast that they will lose over one-half of their membership under right-to-work laws.  Such a loss of membership and dues also adversely affects the unions’ political strength.  Some see a correlation in the loss of union members and Republican gains in mid-western states like Indiana, Wisconsin and Michigan, now all right-to-work states.

                       

On March 6, 2017, Republicans finally presented their alternative to ObamaCare, which would repeal and replace the prior law.  The American Health Care Act is a major piece of legislation which is a bit of a compromise measure to address the difficulties of ObamaCare.  Some conservative Republicans feel that it does not go far enough, and continues to involve the government too much in providing health care.  Many Democrats, on the other hand, argue that it will cause too many people to lose health care coverage.  While a majority of the press reports talk about the effect on private health care plans, equally important changes are proposed in the government's Medicaid program, a program meant for poor persons not yet eligible for Medicare.

Let us first look at some of the features of ObamaCare that are retained in the new law.  The plan retains a defined list of "essential benefits" that all insurers must offer.  The popular provisions covering children up to age 26 and prohibiting insurers from denying policies for pre-existing conditions or capping benefits in a year or a lifetime are retained.  Thus, for most participants in employers' plans, the changes to employees would not be significant.

The proposed legislation eliminates the individual mandate requiring people to pay a penalty if they do not have insurance, and eliminates the employer mandate, which required employers to provide affordable insurance to their employees or face tax penalties.  The danger asserted by Democrats on these measures is that it encourages "sicker" individuals to purchase health care rather than everyone.  The Republican plan does provide incentives for broad participation by requiring insurance companies to charge a 30% higher premium for consumers who go sixty-three (63) days or more continuously without coverage when they do buy a plan.  The changes also would allow insurers to charge older customers at a higher level than currently allowed.

Various taxes under ObamaCare are eliminated including the 3.8% Medicare payroll tax on investment income, the 0.9% tax on high-income earners, and the medical device tax.  Further, premium subsidies under ObamaCare are changed to provide funding by tax credits for individuals earning less than $75,000 and married couples earning less than $150,000.  The credit would be as much as $2,000 for a person under 30 years old, and double that for a person over 60 years old.  The Republican plan would allow people to put substantially more money into their health savings accounts with a basic limit being at least $6,550 for an individual and $13,100 for a family beginning in 2018.

One of the principal issues likely to be debated is the amount of the tax credits.  Some say that several million people would drop out of the individual insurance market, particularly those in their 50's and early 60's that are still too young to qualify for Medicare, because of higher costs.  On the other hand, some younger adults would probably be encouraged to participate because of additional flexibility for insurers to offer them less expensive policies, including those with less generous coverage.  The President favors giving persons the ability to buy insurance across state lines and lowering drug prices.

In general, the tax credits are not high enough to replace the healthcare subsidies which ObamaCare offers for older and low-income persons.  On the other hand, those with higher wages and younger consumers would probably do better financially under the new proposals.  Rural areas tend to have higher insurance premiums and may be more adversely affected than urban areas.

The proposal continues the ObamaCare's "Cadillac" tax on high-cost health plans, but delays it until 2025.  This proposal continues deductibility of health care expenses for employers, a benefit that individuals not working do not have in purchasing health care.

Some consider the proposed changes to Medicaid more important than those pertaining to other health care policies.  ObamaCare expanded the program to cover 11 million more Americans in 31 states in which the expanded program was accepted.  The Republican bill would end this expansion in 2020, although those in the program would be allowed to stay on.  Medicaid covers people with incomes up to 138% of the federal policy level (about $34,000 for a family of four).  The bill would for the first time apply a per-person limit on how much the federal government spends on Medicaid, and convert the formula from an open-ended entitlement into block grants to the states.  The amount would be determined by per capita enrollment and grow with medical inflation.  The States would thus have an incentive to set priorities and retarget Medicaid on the truly needy.  This flexibility would be accompanied by new $1 billion "stability fund" to use in the transition.

Many of the changes in the proposal would not come into effect until 2018.  The stakes are quite high, as the bill in the House of Representatives is currently the only major Republican alternative to ObamaCare being advanced in Congress.  There is certainly the possibility that conservative Republicans will join Democrats to defeat the measure, and the result will likely be to preserve ObamaCare as it currently exists.

In a recent development, on March 13, 2017 the Congressional Budget Office released a report estimating that about 24 million more people would be uninsured under the Republican plan to replace ObamaCare.  The main reason for the reduction is because the plan repeals the mandatory requirement that Americans pay a penalty for not having insurance.  On the other hand, the proposal would also reduce the federal deficit by more than $300 billion.  Further, in a decade, premiums are estimated to be 10% lower than they would have been under ObamaCare. 

Editor's Note – America has never repealed a federal entitlement law, and this is one of the reasons that there is so much negative press on the Republican plan.  Major trade-offs are necessary when the plan reduces government spending, cuts taxes, increases patient choice, reduces total healthcare premiums, and ends a federal mandate requiring health insurance.  The main trade-off is that more people will make individual decisions not to buy healthcare coverage because it is no longer federally mandated by tax penalties.  A further trade-off is that healthcare costs will be relatively more expensive for older Americans, compared to those under ObamaCare. 

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