Archives: 03/2015

The Next Big Obamacare Case?

Medicaid, the entitlement program for low-income Americans jointly funded by the state and federal government, represents about 25 percent of state budgets. Federal funding represents more than half (57 percent) of that amount, and that funding is now being threatened by Obamacare.

In what seems like déjà-vu all over again, Maine’s Department of Health and Human Services (DHHS) is pursuing a lawsuit to prevent this sort of federal coercion.

Here’s the scoop: In 2009, the American Recovery & Reinvestment Act (ARRA) offered states stimulus funds if they agreed to a maintenance-of-effort (“MOE”) provision that required them to maintain Medicaid-eligibility standards at July 2008 levels through December 2010. MaineCare, Maine’s Medicaid program, accepted those funds and the accompanying MOE provision. In relevant part, MaineCare covered low-income individuals ages 18 to 20 in 2008 — even though Medicaid doesn’t require states to include non-pregnant, non-disabled 18- to 20-year olds — so that MOE provision required Maine to continue to do so through 2010. Then the Affordable Care Act came along and added its own MOE provision, which required states to “freeze” eligibility levels until 2019 or risk losing all federal Medicaid funding.

When the ACA took effect on March 23, 2010, Maine was still bound by the ARRA’s MOE requirements, and thus had to continue to cover 18- to 20-year olds for an additional nine years. In August 2012, however, the Maine DHHS sought to drop this coverage. The federal Center for Medicare and Medicaid Services (CMS) rejected Maine’s position regarding alleged inconsistencies between the MOE provisions.

On appeal, Maine argued that the ACA’s MOE provision is unconstitutionally coercive under the Spending Clause, that it unconstitutionally applies retroactively to ARRA MOE provisions, and that it violates Maine’s right to equal sovereignty. Nevertheless, the U.S. Court of Appeals for the First Circuit affirmed the CMS decision, so Maine now seeks Supreme Court review.

More Executive Overreach, This Time from the EPA

The Supreme Court heard arguments on Wednesday in Michigan v. EPA, asking whether it was unreasonable for the Environmental Protection Agency to ignore costs in determining the appropriateness of regulating mercury emissions from power plants. The EPA’s proposed regulations are expected to cost the coal industry a whopping $9.6 billion, but only offer a meager $500,000 to $6 million in public health benefits. 

Cato filed an amicus brief in the case that focuses on why the EPA chose to ignore costs in developing these regulations. It turns out that EPA could achieve its goal of comprehensively regulating utility emissions only if it ignores the costs. That in turn allowed the EPA to single out power plants – which it couldn’t do under other programs, and to avoid working through the states – as the other programs require. This strategy amounts to little more than a clever trick to circumvent statutory limits on the EPA’s own authority.

In effect, the EPA is exploiting nearly harmless levels of mercury emissions as a Trojan horse – an excuse to regulate all power plant emissions, even ones that are covered by other programs that deny EPA the ability to regulate in this fashion.

Chief Justice Roberts picked up on this point from our brief when he questioned the Solicitor General extensively as to the radical disparity between costs and benefits (see discussion starting p.59 here). He also asked pointed questions regarding the EPA’s attempt at making an “end run” around restrictions on the Clean Air Act.

You Ought to Have a Look: Climate Sensitivity and Environmental Worries Are Trending Downward

You Ought to Have a Look is a feature from the Center for the Study of Science posted by Patrick J. Michaels and Paul C. (“Chip”) Knappenberger.  While this section will feature all of the areas of interest that we are emphasizing, the prominence of the climate issue is driving a tremendous amount of web traffic.  Here we post a few of the best in recent days, along with our color commentary.

More evidence this week that high-end forecasts of coming climate change are unsupportable and Americans’ worry about environmental threats, including global warming, is declining. Maybe the general public isn’t as out of touch with the science as has been advertised?

First up is a new paper by Bjorn Stevens from Germany’s Max Plank Institute for Meteorology that finds the magnitude of the cooling effect from anthropogenic aerosol emissions during the late 19th and 20th century was less than currently believed, which eliminates the support for the high-end negative estimates (such as those included in the latest assessment of the U.N.’s Intergovernmental Panel on Climate Change, IPCC). Or, as Stevens puts it “that aerosol radiative forcing is less negative and more certain than is commonly believed.”

This is important, because climate models rely on the cooling effects from aerosol emissions to offset a large part of the warming effect from greenhouse gas emissions. If you think climate models produce too much warming now, you ought to see how hot they become when they don’t include aerosol emissions. The IPCC sums up the role of aerosols this way:

Despite the large uncertainty range, there is a high confidence that aerosols have offset a substantial portion of [greenhouse gas] global mean forcing.

The new Stevens’ result—that the magnitude of the aerosol forcing is less—means the amount of greenhouse gas-induced warming must also be less; which means that going forward we should expect less warming from future greenhouse gas emissions than climate models are projecting.

Researcher Nic Lewis, who has done a lot of good recent work on climate sensitivity, was quick to realize the implications of the Stevens’ results. In a blog post over at Climate Audit, Lewis takes us through his calculations as to what the new aerosols cooling estimates mean for observational determinations of the earth’s climate sensitivity.

What he finds is simply astounding.

The 4th Amendment Is Another Victim of the Drug War

Over at the Washington Post, Radley Balko details a recent Fourth Circuit ruling overturning an award for a father whose son was shot and killed in a military-style SWAT raid after marijuana residue was found in an outside garbage bag. A jury awarded the father $250,000 after it was shown that the police failed to comply with their obligation to knock and announce their presence before barging in and that they lied about several aspects of the raid.

Without repeating the entirety of Balko’s excellent analysis, a particularly troubling aspect of the ruling is the nonchalant way in which the Fourth Circuit judges, even in dissent, treat the militarized raid over marijuana residue and dispense with any suggestion that such escalated violence is constitutionally questionable:

Let’s first start by noting one very important issue that is not in dispute—whether the massive amount of force the police brought to bear in this case was reasonable under the Fourth Amendment. As far as the federal courts are concerned, it was. As Judge Pamela Harris points out in her dissent, “The point here, to be clear, is not to take issue with the Officers’ decision to execute a search warrant based on marijuana traces by way of a military-style nighttime raid.”

Harris is correct. The courts long ago decided that dangerous, punishing SWAT-style raids to search for pot—even when there is no evidence of distribution—are reasonable under the Fourth Amendment. A lawsuit arguing otherwise will be promptly tossed.

Balko then points out that such behavior is precisely what the Fourth Amendment was designed to prevent:

Steep Drop in Colorado Marijuana Arrests

A new report from the Drug Policy Alliance details a steep decline in the number of marijuana arrests in Colorado and remarks on the beneficial effects.

The key points:

  • Since 2010, marijuana possession charges are down by more than 90%, marijuana cultivation charges are down by 96%, and marijuana distribution charges are down by 99%.
  • The number of marijuana possession charges in Colorado courts has decreased by more than 25,000 since 2010—from 30,428 in 2010 to just 1,922 in 2014.
  • According to raw data from the National Incident-Based Reporting System, drug-related incidents are down 23% since 2010, based on a 53% drop in marijuana-related incidents.
  • In 2010 the top five Colorado counties for marijuana possession cases were El Paso, Jefferson, Adams, Larimer, and Boulder.  Marijuana possession cases in those counties all dropped by at least 83% from 2010 to 2014.
  • Marijuana distribution charges for young men of color did not increase, to the relief of racial justice advocates wary of a “net-widening” effect following legalization. The black rate for distribution incidents dropped from 87 per 100,000 in 2012 to 25 per 100,000 in 2014.
  • Racial disparities for still-illegal and mostly petty charges persist for black people when compared to white people, primarily because of the specific increase of charges for public use combined with the disproportionate rates of police contact in communities of color. The marijuana arrest rate for black people in 2014 was 2.4 times higher than the arrest rates for white people, just as it was in 2010.
  • The report also reveals a decline in synthetic marijuana arrests, presumably because people are less likely to use synthetic marijuana when marijuana itself is no longer criminalized.

According to Art Way, Colorado state director of the Drug Policy Alliance:

It’s heartening to see that tens of thousands of otherwise law-abiding Coloradans have been spared the travesty of getting handcuffed or being charged for small amounts of marijuana. By focusing on public health rather than criminalization, Colorado is better positioned to address the potential harms of marijuana use, while diminishing many of the worst aspects of the war on drugs.

Restoring the Old-Fashioned Budget Virtue of … FDR and Truman?!?

This is a column I never expected to write. That’s because I’m going to applaud Presidents Franklin Roosevelt and Harry Truman.

This won’t be unconstrained applause, to be sure. Roosevelt, after all, pursued awful policies that lengthened and deepened the economic misery of the 1930s. And, as you can see from this video, the “economic bill of rights” that he wanted after WWII was downright malicious.

Truman, meanwhile, was a less consequential figure, but it’s worth noting that he wanted a restoration of the New Deal after WWII, which almost certainly would have hindered and perhaps even sabotaged the recovery.

But just as very few policymakers are completely good, it’s also true that very few policymakers are totally bad. And a review of fiscal history reveals that FDR and Truman both deserve credit for restraining domestic spending during wartime.

In a new column I wrote for The Hill, I specifically responded to the cranky notion, pursued by Bernie Sanders, the openly socialist U.S. senator from Vermont, that there should be tax hikes on the rich to finance military operations overseas.

The idea has a certain perverse appeal to libertarians. We don’t like nation-building and we don’t like punitive tax policy, so perhaps mixing them together would encourage Republicans to think twice (or thrice) before trying to remake the world.

But “perverse appeal” isn’t the same as “good policy.”

Schumer Vs. Reid on Trade Policy

Senate Democratic Leader Harry Reid (NV) has announced that he will not seek reelection in 2016, and his most likely successor is Chuck Schumer (D-NY). No doubt a lot will be said by journalists and commentators about what this transition means for policy and politics.

If you want to get an idea of what that change might mean for U.S. trade policy in the long run, you should take a look at Cato’s congressional trade votes database—Free Trade, Free Markets: Rating the Congress.

Throughout his career, Reid has been a staunch opponent of trade liberalization. He has voted in favor of market-distorting subsidies and tariffs at almost every opportunity:

 

For instance, Reid thwarted President Obama’s attempt to secure trade promotion authority last year when Reid was still majority leader.

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