Archives: 01/2013

Debate Challenge to Jonathan Gruber and Any Other ObamaCare Supporter

My coauthor Jonathan Adler and I have been educating state lawmakers about how ObamaCare allows them to block the law’s employer mandate, and to exempt collectively 15 million taxpayers from its individual mandate. So far, 32 states have exercised those powers, exempting all of their employers and 10 million residents from those punitive taxes. In Mother Jones, MIT economics professor Jonathan Gruber calls our interpretation of the law “screwy…nutty…stupid.” (This issue is currently being litigated in Oklahoma.) 

In this Cato video, I challenge Prof. Gruber (and any other supporter of the law) to a debate on the powers Congress grants states under ObamaCare.


Estimate: Massachusetts Diverts 99% of Tobacco Money to Other Causes

From this weekend’s Lawrence (Mass.) Eagle-Tribune
Millions of dollars originally intended for smoking cessation programs in Massachusetts have been diverted to offset budget deficits, leaving the state struggling to fund quit-smoking hotlines, treatment programs and anti-tobacco advertising, the New England Center for Investigative Reporting has found. … 
 
“Roughly 99 percent of all the tobacco dollars that come into the state are used for something else,” said Stephen Shestakofsky, recently retired executive director of Tobacco Free Massachusetts, an anti-tobacco advocacy group. He was referring to the nearly $254 million in tobacco-related legal awards given to Massachusetts in 2012. More than $561 million in tobacco taxes was also collected, bringing the state’s total tobacco tally to just over $815 million, the CDC reports.
On the one hand, it’s not as if I’d urge the state of Massachusetts to sink vast sums into the paternalist project of hectoring its citizens to quit, especially not at a time when its taxpayers are already having to foot a steep tab for its RomneyCare health insurance experiment. On the other hand, we can now see that it was the purest pretense for attorneys general in states like Massachusetts to have portrayed the Great Tobacco Robbery settlement of some years back as motivated by a supposed need for new “public health” outlays, as opposed to sheer plunder and the interests of the various lawyers involved.  
 
That’s worth remembering next time you hear a proposal to extract large sums from the food industry (either through taxation or, as some in the legal profession would like, by suing them for it under some creative theory) with the promise that funds will then be earmarked for anti-obesity efforts. In practice, after voters’ attention wanders, funds ordinarily get earmarked for the advancement of the political interests of those in power.  
 
More on the late-1990s Medicaid-tobacco settlement from Cato chairman Robert Levy here, here, here, and in his book Shakedown, and from me here, here, and in my book The Rule of Lawyers

Federal Money to the States Isn’t ‘Free’

Richmond Times-Dispatch columnist A. Barton Hinkle recently made what should be a simple point to understand, but it’s unfortunately one that few people seem to appreciate. Writing about the supposed win-win situation whereby states expand Medicaid coverage and the federal government foots most of the bill, Hinkle reminds readers that the “free” federal money isn’t really free: 

In Virginia, officials estimate expanding Medicaid would cost the state $137.5 million over nine years, while the state would receive $23 billion from Washington.

Other states report similar figures. California expects to enroll up to 910,000 residents for a cost beginning at only $46 million a year, while collecting $44 billion in federal funds over a six-year period. An Illinois study estimates that state would spend about $2 billion on expanded Medicaid over the next decade, while reaping $22 billion in federal funds. According to Danielle Holohan, who is in charge of New York’s insurance exchange, Medicaid expansion “actually works out to be an enormous savings” for the Empire State. And so on.

This all sounds great—if you are a state official. But if you are a lowly taxpayer, it leaves out one rather significant point: Where is all that federal money coming from?

No great mystery: Most of that money would come from taxpayers who live in the very states that are looking forward to these supposed windfalls. According to the Kaiser Family Foundation, if every state signed up for Medicaid expansion, then the federal government would spend nearly $1 trillion over the next nine years—paid for by you.

So you don’t have to wait for Medicaid expansion to reap this sort of “windfall.” Just take 5 bucks out of your left pocket and put it in your right. As far as your right pocket is concerned, you’re 5 bucks richer. It’s free money!

In addition to not being free, federal subsidization of state spending makes it harder for taxpayers to understand and appreciate where their money is going and how it’s being spent. A Cato essay on fiscal federalism explains:

The three layers of government in the United States no longer resemble the tidy layer cake that existed in the 19th century. Instead, they are like a jumbled marble cake with responsibilities fragmented across multiple layers. Federal aid has made it difficult for citizens to figure out which level of government is responsible for particular policy outcomes. All three levels of government play big roles in such areas as transportation and education, thus making accountability difficult. Politicians have become skilled at pointing fingers of blame at other levels of government, as was evident in the aftermath of Hurricane Katrina. When every government is responsible for an activity, no government is responsible.

As we’ve been arguing over at Downsizing Government, it is well past time that the trend toward greater centralization of power in Washington is reversed. With the country bouncing from manufactured fiscal crisis to manufactured fiscal crisis, the need for a return to fiscal federalism has never been greater.

Of course, getting federal policymakers to give up power is like asking a starving pit bull to part with a slab of beef. And even though state policymakers often complain when the feds get heavy-handed, their attitude is different when it comes to taking federal money. Why ask your state’s taxpayers to pony up the funds to feed your spending appetite when Uncle Sam can do the dirty work (or just use his credit card)?

Brick Wall of Local Bureaucracy

Some Good Samaritans wanted to clean up some trash in a neighborhood near me in Northern Virginia, and they ran into a brick wall of bureaucracy. I happened to notice this write-up on a neighborhood blog.

If you aren’t convinced yet that there is too much government bureaucracy in America, then this article is well worth reading. Here are some highlights:

Kay Cooper and Nancy Vorona, residents of Lake Barcroft, would like to see the Seven Corners area cleaned up.

…Government officials agree the area needs to be cleaned up. Yet nothing is being done. Cooper is beyond frustrated at the lack of action. “We spent hours on this and got nowhere,” she said. “It’s been like pulling teeth to get any information from anybody. It’s like they don’t really want to help us.”

Nearly a year ago Cooper and Vorona, in a spirit of neighborhood activism, started organizing a community-wide cleanup to occur on June 23, focusing on Leesburg Pike… They knew they needed approval from [the Virginia Department of Transportation] VDOT, but didn’t think that would be an insurmountable problem. Boy, were they wrong.

A member of Mason Supervisor Penny Gross’s staff helped Cooper and Vorona file the paperwork, Mason District Police officers agreed to lend their support, and they began rounding up volunteers. But then William Dunlap of VDOT told them in May that the road use authorization form they had submitted was the wrong form. According to Dunlap, they had to submit four separate land use permit forms, including an application, work zone certification, note of permittee liability, and erosion and sediment control contractor certification.

They were also told they needed to purchase $1 million worth of liability insurance, hire a private contractor to provide security support, and set up “changeable message signs” two weeks in advance to warn the public about the clean-up event. Dunlap also told them VDOT preferred having the event scheduled on a weekday, even though that would make it more difficult to recruit volunteers.

Dunlap also told Cooper that local police, and not VDOT, are responsible for removing illegal signs, even if the signs are in the VDOT right of way. Meanwhile the Fairfax County Police Department said they’re not authorized to remove signs in the VDOT right of way.

The whole article is here.

DC Circuit Overturns President Obama’s Power Grab

Today, in an important decision with far-reaching implications, the D.C. Circuit Court of Appeals ruled unconstitutional President Obama’s appointment of three members to the National Labor Relations Board.

Slightly over a year ago, on January 4, 2012, President Obama appointed four people to high-level offices without the constitutionally required “advice and consent” of the Senate. Three of those appointees were placed on the NLRB, and the other was Richard Cordray, chosen to direct the Consumer Finance Protection Bureau, the “consumer watchdog” agency created by Dodd-Frank.

The appointments were one of the most significant power grabs by a president in recent memory. The Constitution requires that certain “officers of the United States,” a category which indisputably includes NLRB board members and the director of the CFPB, be appointed by the president with the “advice and consent of the Senate.” Like many constitutional provisions, this is a “checks and balances” requirement that helps ensure the president does not unilaterally control the executive branch for his own purposes.

As a precaution against crucial offices staying vacant while the Senate is not in session, the Framers included a clause that allows the president to temporarily circumvent the “advice and consent” requirement in order “to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” At the time of the framing, as well as for many decades afterward, senators would usually spend six to nine months out of Washington. In those absences, it was left to the president to keep the government going, and the Recess Appointment Clause gives the president the power to make temporary appointments during those long periods when the Senate was simply unavailable.

Unfortunately, like so many constitutional provisions, the last 80 years have seen a gradual, bipartisan effort to whittle away the Recess Appointment Clause’s function and to concentrate more power in the president. Initially, presidents began redefining what a “recess” is by asserting the power to appoint officers during “intrasession recesses”—that is, breaks within a formal session (e.g., holiday breaks)—rather than just during intersession recesses. After this precedent had been established by President Warren Harding, successive presidents began appointing officials during shorter and shorter intrasession recesses. President Clinton made a controversial appointment during a 10-day intrasession recess, and President George W. Bush followed suit.

“If Poor People Get Richer, They Won’t Have Anything to Eat”

The nonsensical sentiment expressed in this post’s title seems to be the guiding belief among people in the United States and United Kingdom currently concerned that eating imported quinoa is harmful to the Bolivian farmers who grow it.

For the uninitiated, quinoa is a grain-like plant that grows only in the Andes Mountains and is possibly the most nutritious food on the planet. In recent years, health food enthusiasts in the United States and Europe have developed an affinity for the exotic import. The result has been a sharp rise in the food’s global price and a concurrent increase in production in Bolivia and Peru.

If you’re like me, you probably think this is a terrific outcome for the Bolivians, who can now sell their crop for three times what they could just five years ago. Major media outlets disagree. The New York Times ran a piece titled “Quinoa’s Global Success Creates Quandary at Home” that warns, “The surge has helped raise farmers’ incomes here in one of the hemisphere’s poorest countries. But there has been a notable trade-off: Fewer Bolivians can now afford it, hastening their embrace of cheaper, processed foods and raising fears of malnutrition in a country that has long struggled with it.”

The UK Guardian ran an article last week airing similar concerns and also published a commentary titled, “Can Vegans Stomach the Unpalatable Truth about Quinoa?” The commentary’s author laments that “the quinoa trade is yet another troubling example of a damaging north-south exchange, with well-intentioned health and ethics-led consumers here unwittingly driving poverty there.”

This is all par for the course in the interminable fair-trade, ethical-consumption conundrum in which the desire among affluent American consumers for things is pitted against their concern that production, commerce, and consumption breed injustice. While part of me finds this hand-wringing amusing, I can’t help but worry about the bigotry implied in the notion that poor foreigners will starve if they are allowed to sell food for money. 

I came across a blog post recently by Stefan Jeremiah and Michael Wilcox, two photographers currently in Bolivia making a documentary. They do a really great job of putting the quinoa controversy in its place. After National Public Radio ran a story in November worrying about overpriced food for poor Bolivians and considering the possibility of growing quinoa in the United States, Jeremiah and Wilcox wrote this in response:

Supreme Court Snubs Citizens Whose Social Security Will Be Confiscated If They Refuse Government Health Care

Some of the U.S. Supreme Court’s most significant decisions are those declining to hear a case. Two weeks ago, the Court made such a momentous non-ruling in refusing to hear a lawsuit, Hall v. Sebelius, challenging government policies that deny otherwise eligible retirees their Social Security benefits if they choose not to enroll in Medicare. (I previously wrote about the case, and Cato filed a brief supporting the retirees’ petition for Supreme Court review.)

Despite having paid thousands of dollars each in Social Security and Medicare taxes during their working lives—for which they never sought reimbursement—the five plaintiffs were told by officials at the Social Security Administration and Department of Health and Human Services that they had to forfeit all of their Social Security benefits if they wished to withdraw from (or not enroll in) Medicare. This determination resulted from internal policies that were put in place during the Clinton administration and strengthened by the Bush administration. The plaintiffs sought a judicial ruling that would prohibit SSA and HHS from enforcing these policies, which they believed conflicted with the Social Security and Medicare statutes. A sharply divided U.S Court of Appeals for the D.C. Circuit eventually upheld them. By its decision not to hear the case, the Supreme Court let that controversial ruling stand.

At this point, one might ask why someone would want to give up Medicare. The answer is that some people would prefer to keep their existing (private) health insurance, but that for various regulatory and economic reasons insurance companies are wary of insuring people already covered by Medicare. Talk about the prototypical case of government programs crowding out the private sector!

In any event, the troubling reality of the Supreme Court’s non-ruling is twofold: First, the government now has full authority to force citizens to participate in a financially troubled program (Medicare) that was originally intended to be—and operated for almost three decades as—a wholly voluntary program. If they refuse, SSA and HHS can deny them their Social Security benefits. If they seek to withdraw from Medicare, SSA and HHS can not only deny them future benefits, but force them to repay all benefits received from both programs. Second, the Supreme Court’s unwillingness to address the issue raised here allows federal agencies to bypass Congress with impunity when drafting and implementing their own rules.