FEHB Protection Act of 2025

— 500 — Mandate for Leadership: The Conservative Promise 32. Owcharenko Schaefer, “Medicaid at 55: Understanding the Design, Trends, and Reforms Needed to Improve the Health Care Safety Net.” 33. Brian Blase, “Managed Care in Medicaid: Need for Oversight, Accountability, and Reform,” Paragon Health Institute Policy Brief, October 13, 2022, https://paragoninstitute.org/wp-content/uploads/2022/10/20221012- Managed-Care-in-Medicaid-Need-for-Oversight-Accountability-and-Reform-FOR-DISTRIBUTION-V2.pdf (accessed February 13, 2023). 34. Owcharenko Schaefer, “Medicaid at 55: Understanding the Design, Trends, and Reforms Needed to Improve the Health Care Safety Net.” 35. 42 U.S. Code § 1315, https://www.law.cornell.edu/uscode/text/42/1315 (accessed March 17, 2023). 36. Chad D. Savage and Lee S. Gross, “Direct Primary Care: Update and Road Map for Patient-Centered Reforms,” Heritage Foundation Backgrounder No. 3635, June 28, 2021, https://www.heritage.org/sites/default/ files/2021-06/BG3635.pdf. 37. H.R. 133, Consolidated Appropriations Act, 2021, Public Law No. 116-260, 116th Congress, December 27, 2020, Division BB, Title I, https://www.congress.gov/116/plaws/publ260/PLAW-116publ260.pdf (accessed March 17, 2023). 38. Doug Badger, “On Surprise Medical Bills, Congress Should Side with Consumers, Not Special Interests,” Heritage Foundation Commentary, January 31, 2020, https://www.heritage.org/health-care-reform/ commentary/surprise-medical-bills-congress-should-side-consumers-not-special. 39. Edmund F. Haislmaier and Abigail Slagle, “Premiums, Choices, Deductibles, Care Access, and Government Dependence Under the Affordable Care Act: 2021 State-by-State Review,” Heritage Foundation Backgrounder No. 3668, November 2, 2021, https://www.heritage.org/sites/default/files/2021-11/BG3668.pdf. 40. U.S. Department of the Treasury, Internal Revenue Service; U.S. Department of Labor, Employee Benefits Security Administration; and U.S. Department of Health and Human Services, “Transparency in Coverage,” Final Rule, Federal Register, Vol. 85, No. 219 (November 12, 2020), pp. 72158–72310, https://www.govinfo.gov/ content/pkg/FR-2020-11-12/pdf/2020-24591.pdf (accessed March 17, 2023). 41. David N. Bernstein and Robert E. Moffit, “New Price Transparency Rule Will Help Transform America’s Health Care System,” Heritage Foundation Commentary, November 1, 2020, https://www.heritage.org/health-care- reform/commentary/new-price-transparency-rule-will-help-transform-americas-health-care. 42. Sluzala and Haislmaier, “Lessons from COVID-19: How Policymakers Should Reform the Regulation of Clinical Testing.” 43. Ibid. 44. Most recently enacted in H.R. 2471, Consolidated Appropriations Act, 2022, Public Law No. 117-103, 117th Congress, March 15, 2022, Division H, Title V, §§ 506–507, https://www.congress.gov/117/plaws/publ103/ PLAW-117publ103.pdf (accessed March 17, 2023). 45. President Joseph R. Biden Jr., Executive Order 14079, “Securing Access to Reproductive and Other Healthcare Services,” August 3, 2022, in Federal Register, Vol. 87, No. 154 (August 11, 2022), pp. 49505–49507, https:// www.govinfo.gov/content/pkg/FR-2022-08-11/pdf/2022-17420.pdf (accessed March 16, 2023). 46. Planned Parenthood, 2020–2021 Annual Report, p. 27, https://www.plannedparenthood.org/uploads/ filer_public/40/8f/408fc2ad-c8c2-48da-ad87-be5cc257d370/211214-ppfa-annualreport-20-21-c3-digital.pdf (accessed March 22, 2023). 47. Ibid., pp. 30 and 31. Total revenue of $1,714.4 million (p. 30) minus $1,580.7 million in total expenses (p. 31) yields $133,7 million. 48. Ibid., p. 28. 49. Ibid., p. 30. 50. H.R. 372, Protecting Life and Taxpayers Act of 2023, 118th Congress, introduced January 17, 2023, https://www. congress.gov/118/bills/hr372/BILLS-118hr372ih.pdf (accessed March 17, 2023). 51. 42 U.S. Code § 18023, https://www.law.cornell.edu/uscode/text/42/18023 (accessed March 17, 2023). 52. H.R. 3128, Consolidated Omnibus Budget Reconciliation Act of 1985, Public Law No. 99-272, 99th Congress, April 7, 1986, Title IX, Subtitle A, Part 1, Subpart B, § 9121, https://www.congress.gov/99/statute/STATUTE-100/ STATUTE-100-Pg82.pdf (accessed March 17, 2023). 53. H.R. 8070, Rehabilitation Act of 1973, Public Law No. 93-112, 93rd Congress, September 26, 1973, https://www. congress.gov/93/statute/STATUTE-87/STATUTE-87-Pg355.pdf (accessed March 17, 2023). — 501 — Department of Health and Human Services 54. U.S. Department of Health and Human Services, Centers for Medicare and Medicaid Services, Office of Civil Rights, and Office of the Secretary, “Special Responsibilities of Medicare Hospitals in Emergency Cases and Discrimination on the Basis of Disability in Critical Health and Human Service Programs or Activities,” draft of Proposed Rule, January 14, 2021, https://www.hhs.gov/sites/default/files/infants-nprm.pdf (accessed March 17, 2023). 55. H.R. 26, Born-Alive Abortion Survivors Protection Act, 118th Congress, introduced January 9, 2023, https:// www.congress.gov/118/bills/hr26/BILLS-118hr26pcs.pdf (accessed March 17, 2023). 56. H.R. 7, No Taxpayer Funding for Abortion and Abortion Insurance Full Disclosure Act of 2023, 118th Congress, introduced January 9, 2023, https://www.congress.gov/118/bills/hr7/BILLS-118hr7ih.pdf (accessed March 17, 2023). 57. S. 401, Conscience Protection Act of 2021, 117th Congress, introduced February 24, 2021, https://www.congress. gov/117/bills/s401/BILLS-117s401is.pdf (accessed March 17, 2023). 58. U.S. Department of Health and Human Services, Centers for Medicare and Medicaid Services, and Office of the Secretary, “Nondiscrimination in Health Programs and Activities,” Notice of Proposed Rulemaking; Notice of Tribal Consultation, Federal Register, Vol. 87, No. 149 (August 4, 2022), pp. 47824–47920, https://www.govinfo. gov/content/pkg/FR-2022-08-04/pdf/2022-16217.pdf (accessed March 17, 2023). 59. Ibid., p. 47916. 60. The regulation was not finalized before the end of the Administration. U.S. Department of Agriculture, Food and Nutrition Services, “Revision of Categorical Eligibility in the Supplemental Nutrition Assistance Program (SNAP),” Proposed Rule, Federal Register, Vol. 84, No. 142 (July 24, 2019), pp. 35570–55581, https:// www.federalregister.gov/documents/2019/07/24/2019-15670/revision-of-categorical-eligibility-in-the- supplemental-nutrition-assistance-program-snap (accessed March 17, 2023). 61. 45 Code of Federal Regulations § 75.300(c) and (d), https://www.ecfr.gov/current/title-45/subtitle-A/ subchapter-A/part-75/subpart-D/subject-group-ECFR911e5e1a30bfbcb/section-75.300 (accessed March 17, 2023). 62. H.R. 1750, Child Welfare Provider Inclusion Act of 2021, 117th Congress, introduced March 10, 2021, https:// www.congress.gov/117/bills/hr1750/BILLS-117hr1750ih.pdf (accessed March 17, 2023), and S. 656, Child Welfare Provider Inclusion Act of 2021, 117th Congress, introduced March 10, 2021, https://www.congress.gov/117/bills/ s656/BILLS-117s656is.pdf (accessed March 17, 2023). 63. S. 3949, Trafficking Victims Protection Reauthorization Act of 2022, Public Law No. 117-348, 117th Congress, January 25, 2023, https://www.congress.gov/117/plaws/publ348/PLAW-117publ348.pdf (accessed March 17, 2023). 64. Kelsey Y. Santamaria, “Child Migrants at the Border: The Flores Settlement Agreement and Other Legal Developments,” Congressional Research Service In Focus No. IF11799, April 1, 2021, https://crsreports.congress. gov/product/pdf/IF/IF11799 (accessed March 17, 2023). 65. Report, Building a Happy Home: Marriage Education as a Tool to Strengthen Families, Social Capital Project Report No. 1-22, March 2022, p. 17, https://www.jec.senate.gov/public/_cache/files/3d102525-6f0d-48ed- 92f4-d71edd468ad6/building-a-happy-home.pdf (accessed March 17, 2023). The cover of the report reflects that the Social Capital Project is “[a] project of the Joint Economic Committee – Republicans.” 66. See, for example, Alan J. Hawkins, “Are Federally Supported Relationship Education Programs for Lower-Income Individuals and Couples Working? A Review of Evaluation Research,” American Enterprise Institute, September 2019, https://www. congress.gov/117/plaws/publ228/PLAW-117publ228.pdf (accessed March 17, 2023). 67. H.R. 8404, Respect for Marriage Act, Public Law No. 117-228, 117th Congress, December 13, 2022, https://www. congress.gov/117/plaws/publ228/PLAW-117publ228.pdf (accessed March 17, 2023). 68. Madison Marino, “Over 1,000 Safety Violations Mar Head Start. Children Deserve Better,” Heritage Foundation Commentary, November 10, 2022, https://www.heritage.org/education/commentary/over-1000-safety- violations-mar-head-start-children-deserve-better. 69. American Hospital Association v. Becerra, 596 U.S. ___ (2022), https://www.supremecourt.gov/ opinions/21pdf/20-1114_09m1.pdf (accessed March 17, 2023). 70. U.S. Department of the Treasury, Internal Revenue Service; U.S. Department of Labor, Employee Benefits Security Administration; and U.S. Department of Health and Human Services, Centers for Medicare and Medicaid Services, “Coverage of Certain Preventive Services Under the Affordable Care Act,” Notice of Proposed Rulemaking, Federal Register, Vol. 88, No. 22 (February 2, 2023), pp. 7236–7281, https://www. govinfo.gov/content/pkg/FR-2023-02-02/pdf/2023-01981.pdf (accessed March 17, 2023).

— 753 — Small Business Administration COVID-19 Lending Program Accountability and Cleanup. A major immediate priority for the next Administration should be a final accounting and accelerated cleanup of fraudulent COVID-19 loan and grant activity. As noted by the SBA IG, “managing COVID-19 stimulus lending is the greatest overall challenge facing SBA, and it may likely continue to be for many years as the agency grapples with fraud in the programs….”40 The next Administration should: l Consider bringing in private-sector support and expertise to close out these programs. Forgiveness and fraud must be dealt with as swiftly as possible, and law enforcement officials must pursue fraud vigorously. Entities receiving PPP loans that did not meet eligibility for forgiveness must be required to pay back the money. For example, under the CARES Act,41 PPP loan applicants generally were eligible only if, together with all their affiliates, they had no more than 500 employees. Numerous Planned Parenthood affiliates self-certified eligibility for PPP loans during the initial wave of loans that were governed by the CARES Act’s size requirement. Many Senators and Representatives asserted that these Planned Parenthood organizations were ineligible because— considered together with their affiliates—they exceeded the maximum eligible size.42 The Trump Administration SBA notified several Planned Parenthood PPP recipients of its preliminary determination of their ineligibility and of SBA’s authority to take various actions against applicants that falsely certified their eligibility.43 To date, despite continued oversight attempts by Members of Congress,44 the SBA has taken no action on the Planned Parenthood loans other than to forgive them, and in 2021, it approved new PPP loans to Planned Parenthood affiliates.45 l Cooperate with ongoing congressional oversight efforts and determine whether SBA has authority to reverse the forgiveness decisions. If it does have that authority, the SBA should reverse the forgiveness decisions for the subject loans, reiterate its preliminary determinations of ineligibility, investigate the matter more thoroughly, and take all appropriate action when its investigation concludes. Regardless of whether it reverses its forgiveness, if its investigation uncovers evidence that Planned Parenthood affiliates or any other loan recipients knowingly misrepresented their eligibility in their applications, the SBA should make appropriate referrals to the Department of Justice. — 754 — Mandate for Leadership: The Conservative Promise Disaster Loan Program and Direct Lending. The SBA’s disaster loan pro- gram provides low-interest loans to personal, business, and nonprofit borrowers following a federally declared disaster. The program suffers from problems of coordination with Federal Emergency Management Administration (FEMA) disas- ter assistance. For example, disaster relief applicants have an incentive to avoid being approved for SBA disaster loans in order to increase the amount of FEMA assistance for which they are eligible. Moreover, the availability of disaster loans reduces individuals’ incentives to purchase disaster-related insurance. More than 90 percent of SBA disaster loans are loans to individuals such as homeowners, not to small businesses. In view of the challenges the SBA has experienced in its administration of this program, as well as the fraud and abuse in the EIDL COVID-19–related program and the IG’s concern that the systemic problems within this lending program undermine the SBA’s work, the next Administration should: l Work with Congress to assess the extent to which disaster loans should be offered by another agency rather than the SBA and explore private-sector channels for administering the loans. l Specify clearly that no new direct lending programs will be developed at the SBA. Eligibility of Religious Entities for SBA Loans. Current SBA regulations46 and SBA Form 197147 make certain religious entities ineligible to participate in several SBA loan programs. The Trump Administration proposed a rule that would remove the provisions on the ground that they violate the First Amendment.48 Subsequent Supreme Court decisions have made their unconstitutionality clearer.49 In an April 3, 2020, letter to Congress pursuant to 28 U.S. Code § 530D,50 the Trump Administration SBA advised that two such provisions violate the Free Exer- cise Clause of the First Amendment and that it therefore would not enforce them. On January 19, 2021, the Trump Administration SBA proposed a rule to remove all of the unconstitutional religious exclusions from its regulations.51 The SBA has not acted on the proposed rule. A similar religious exclusion once appeared in the regulation governing eligibil- ity for SBA Business Loan Programs,52 but it was removed in a June 2022 final rule that noted tension with the First Amendment and Supreme Court precedent.53 That final rule announced that the SBA would nonetheless continue to make religious eligibility determinations for business loan applicants to comply with putative Establishment Clause requirements,54 but Supreme Court precedent and Office of Legal Counsel memoranda refute the notion that large government-backed loan programs raise any Establishment Clause concerns.55

— 83 — Central Personnel Agencies: Managing the Bureaucracy and PPO’s chosen White House Liaisons and their staff at each agency, is essential to the management of this large, multilevel, resistant, and bureaucratic challenge. If “personnel is policy” is to be our general guide, it would make sense to give the President direct supervision of the bureaucracy with the OPM Director available in his Cabinet. A REFORMED BUREAUCRACY Today, the federal government’s bureaucracy cannot even meet its own civil service ideals. The merit criteria of ability, knowledge, and skills are no longer the basis for recruitment, selection, or advancement, while pay and benefits for com- parable work are substantially above those in the private sector. Retention is not based primarily on performance, and for the most part, inadequate performance is not appraised, corrected, or punished. The authors have made many suggestions here that, if implemented, could bring that bureaucracy more under control and enable it to work more efficiently and responsibly, which is especially required for the half of civilian government that administers its undeniable responsibilities for defense and foreign affairs. While a better administered central bureaucracy is crucial for both those and domestic responsibilities, the problem of properly running the government goes beyond simple bureaucratic administration. The specific deficiencies of the fed- eral bureaucracy—size, levels of organization, inefficiency, expense, and lack of responsiveness to political leadership—are rooted in the progressive ideology that unelected experts can and should be trusted to promote the general welfare in just about every area of social life. The Constitution, however, reserved a few enumerated powers to the federal government while leaving the great majority of domestic activities to state, local, and private governance. As James Madison explained: “The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement and prosperity of the state.”31 Modern progressive politics has simply given the national government more to do than the complex separa- tion-of-powers Constitution allows. That progressive system has broken down in our time, and the only real solution is for the national government to do less: to decentralize and privatize as much as possible and then ensure that the remaining bureaucracy is managed effectively along the lines of the enduring principles set out in detail here. AUTHORS’ NOTE: The authors are grateful for the collaborative work of the individuals listed as contributors to this chapter for the 2025 Presidential Transition Project. The authors alone assume responsibility for the content of this chapter, and no views expressed herein should be attributed to any other individual. — 84 — Mandate for Leadership: The Conservative Promise ENDNOTES 1. U.S. Constitution, Article II, Section 2, https://www.law.cornell.edu/constitution/articleii#section1 (accessed February 1, 2023). 2. 5 U.S. Code §§ 1101 et seq. and 1103(a)(5), https://www.law.cornell.edu/uscode/text/5/part-II/chapter-11 (accessed February 1, 2023). 3. 5 U.S. Code § 1201, https://www.law.cornell.edu/uscode/text/5/1201 (accessed February 1, 2023). 4. 5 U.S. Code § 7101, https://www.law.cornell.edu/uscode/text/5/7101 (accessed February 1, 2023), and § 7117, https://www.law.cornell.edu/uscode/text/5/7117 (accessed February 1, 2023). 5. S. 1871, An Act to Prevent Pernicious Political Activities, Public Law No. 76-252, August 2, 1939, https:// govtrackus.s3.amazonaws.com/legislink/pdf/stat/53/STATUTE-53-Pg1147.pdf (accessed February 1, 2023). 6. H.R. 995, Uniformed Services Employment and Reemployment Rights Act of 1994, Public Law No. 103-353, 101st Congress, October 13, 1994, https://www.congress.gov/103/statute/STATUTE-108/STATUTE-108-Pg3149. pdf (accessed February 1, 2023). 7. 5 U.S. Code § 1206, https://www.law.cornell.edu/uscode/text/5/1206 (accessed February 1, 2023). 8. 42 U.S. Code § 2000e, https://www.law.cornell.edu/uscode/text/42/2000e (accessed February 1, 2023). 9. 40 U.S. Code § 581, https://www.law.cornell.edu/uscode/text/40/581 (accessed February 1, 2023). 10. U.S. National Archives, “Milestone Documents: Pendleton Act (1883),” last reviewed February 8, 2022, https:// www.archives.gov/milestone-documents/pendleton-act (accessed February 2, 2023). 11. S. 2640, Civil Service Reform Act of 1978, Public Law No. 95-454, 95th Congress, October 13, 1978, https:// www.congress.gov/95/statute/STATUTE-92/STATUTE-92-Pg1111.pdf (accessed February 2, 2023). 12. Donovan Sack and Bill Theobald, “Veterans Affairs Pays $140 Million in Bonuses Amid Scandals,” USA Today, November 11, 2015, https://www.usatoday.com/story/news/politics/2015/11/11/veterans-affairs-pays-142- million-bonuses-amid-scandals/75537586/ (accessed March 15, 2023). 13. U.S. Government Accountability Office, “Federal Workforce: Distribution of Performance Ratings Across the Federal Government, 2013,” GAO-16-520R, May 9, 2016, https://www.gao.gov/assets/gao-16-520r.pdf (accessed March 15, 2023); U.S. Government Accountability Office, Results-Oriented Management: OPM Needs to Do More to Ensure Meaningful Distinctions Are Made in SES Ratings and Performance Awards, GAO-15- 189, January 2015, https://www.gao.gov/assets/gao-15-189.pdf (accessed March 15, 2023); U.S. Government Accountability Office, “Measuring Federal Employee Performance,” WatchBlog, posted October 18, 2016, https://www.gao.gov/blog/2016/10/18/measuring-federal-employee-performance (accessed March 15, 2023); Lisa Rein, “The Federal Workforce, Where Everyone’s Performance Gets Rave Reviews,” The Washington Post, June 13, 2016, https://www.washingtonpost.com/news/powerpost/wp/2016/06/13/heres-the-news-from-the- federal-government-where-everyone-is-above-average-way-above/ (accessed March 15, 2023). 14. Ludwig von Mises, Bureaucracy (New Haven, CT: Yale University Press, 1944), https://ia902300.us.archive. org/17/items/mises-pdfs/1944-01-01_LudwigVonMises_Bureaucracy.pdf (accessed February 2, 2023). 15. Figure 1, “Permanent, Non-Senior Executive Service Employee Performance Rating Outcomes (All Rating Systems, Calendar Year 2013),” in U.S. Government Accountability Office, “Federal Workforce: Distribution of Performance Ratings Across the Federal Government, 2013,” p. 6. 16. President Donald J. Trump, Executive Order 13839, “Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles,” May 25, 2018, in Federal Register, Vol. 83, No. 106 (June 1, 2018), pp. 25343–25347, https://www.govinfo.gov/content/pkg/FR-2018-06-01/pdf/2018-11939.pdf (accessed February 2, 2023). 17. President Joseph R. Biden Jr., Executive Order 14003, “Protecting the Federal Workforce,” January 22, 2021, in Federal Register, Vol. 86, No. 16 (January 27, 2021), pp. 7231–7233, https://www.govinfo.gov/content/pkg/FR- 2021-01-27/pdf/2021-01924.pdf (accessed February 2, 2023). 18. Rachel Greszler and James Sherk, “Why It Is Time to Reform Compensation for Federal Employees,” The Heritage Foundation, July 27, 2016, https://www.heritage.org/jobs-and-labor/report/why-it-time-reform- compensation-federal-employees. 19. Andrew G. Biggs and Jason Richwine, “Comparing Federal and Private Sector Compensation,” American Enterprise Institute Working Paper No. 2011-02, revised June 2011, https://www.aei.org/wp-content/ uploads/2011/10/AEI-Working-Paper-on-Federal-Pay-May-2011.pdf?x91208 (accessed February 2, 2023).