Tag: Congressional Research Service

More Questions for Secretary Sebelius

Given the growing concern even among Democrats that ObamaCare will result in a “huge train wreck” later this year, I have a few questions for Health and Human Services Secretary Kathleen Sebelius to add to my previous list:

  1. What happens if a federal court (say, the Eastern District of Oklahoma) issues an injunction barring HHS from making “advance payments of tax credits” in the 33 states with federal Exchanges?
  2. Has HHS done any planning for that contingency? If so, what are those contingency plans?
  3. If HHS has not, why not? Given that the Congressional Research Service and Harvard Law Review both say there’s a credible case that the PPACA forbids tax credits in the 33 states with federal Exchanges, how could HHS not have a contingency plan ready?

For more on how HHS is violating federal law by planning to issue advance payments of tax credits through federal Exchanges, read my Cato white paper, “50 Vetoes: How States Can Stop the Obama Health Care Law,” and my Health Matrix article (with Jonathan Adler), “Taxation Without Representation: The Illegal IRS Rule to Expand Tax Credits Under the PPACA.

Cato Study: Heretofore Unreported ObamaCare ‘Bug’ Puts IPAB Completely beyond Congress’ Reach

Today, the Cato Institute releases a new study by Diane Cohen and me titled, “The Independent Payment Advisory Board: PPACA’s Anti-Constitutional and Authoritarian Super-Legislature.” Cohen is a senior attorney at the Goldwater Institute and lead counsel in the Coons v. Geithner lawsuit challenging IPAB and other aspects of the Patient Protection and Affordable Care Act of 2010, a.k.a. ObamaCare.

From the executive summary:

When the unelected government officials on this board submit a legislative proposal to Congress, it automatically becomes law: PPACA requires the Secretary of Health and Human Services to implement it. Blocking an IPAB “proposal” requires at a minimum that the House and the Senate and the president agree on a substitute. The Board’s edicts therefore can become law without congressional action, congressional approval, meaningful congressional oversight, or being subject to a presidential veto. Citizens will have no power to challenge IPAB’s edicts in court.

Worse, PPACA forbids Congress from repealing IPAB outside of a seven-month window in the year 2017, and even then requires a three-fifths majority in both chambers…

IPAB’s unelected members will have effectively unfettered power to impose taxes and ration care for all Americans, whether the government pays their medical bills or not. In some circumstances, just one political party or even one individual would have full command of IPAB’s lawmaking powers. IPAB truly is independent, but in the worst sense of the word. It wields power independent of Congress, independent of the president, independent of the judiciary, and independent of the will of the people.

The creation of IPAB is an admission that the federal government’s efforts to plan America’s health care sector have failed. It is proof of the axiom that government control of the economy threatens democracy.

Importantly, this study reveals a heretofore unreported feature that makes this super-legislature even more authoritarian and unconstitutional:

[I]f Congress misses that repeal window, PPACA prohibits Congress from ever altering an IPAB “proposal.”

You read that right.

The Congressional Research Service and others have reported that even if Congress fails to repeal this super-legislature in 2017, Congress will still be able to use the weak tools that ObamaCare allows for restraining IPAB. Unfortunately, that interpretation rests on a misreading of a crucial part of the law. These experts thought they saw the word “or” where the statute actually says “and.”

How much difference can one little conjunction make?

Under the statute as written, if Congress fails to repeal IPAB in 2017, then as of 2020 Congress will have absolutely zero ability to block or amend the laws that IPAB writes, and zero power to affect the Secretary’s implementation of those laws. IPAB will become a permanent super-legislature, with the Secretary as its executive. And if the president fails to appoint any IPAB members, the Secretary will unilaterally wield all of IPAB’s legislative and executive powers, including the power to appropriate funds for her own department. It’s completely nutty, yet completely consistent with the desire of ObamaCare’s authors to protect IPAB from congressional interference.

It’s also completely consistent with Friedrich Hayek’s prediction that government planning of the economy paves the way for authoritarianism.

Federal Government Subsidizes and Penalizes Boeing Co.

When an entity is as mammoth and undisciplined as the $3.8 trillion U.S. federal government, it’s inevitable that its programs will be working at cross purposes. Just ask the civil aircraft manufacturer Boeing Company.

Politicians love Boeing because it not only makes valuable products but it also exports billions of dollars worth around the globe. To give a boost to those exports and supposedly create more jobs in the United States, the federal government’s Export-Import Bank offers preferential loans to foreign governments and airlines to help them buy more Boeing aircraft.

As my Cato colleague Sallie James documents in a new study, “Time to X Out the Ex-Im Bank,”

the number-one user of the Ex-Im Bank is the Boeing Company. Of the 35 aircraft sales supported by Ex-Im in FY2010, 28 were Boeing products, and the Congressional Research Service estimates that more than 60 percent of the value of Ex-Im Bank loan guarantees supported Boeing aircraft sales in that year.

No wonder critics refer to the Ex-Im as “Boeing’s Bank.”

Yet the same federal government is making it more difficult for Boeing to manufacture its airliners cost-effectively in the United States. Under the sway of organized labor, the National Labor Relations Board is seeking to prevent Boeing from expanding its production in South Carolina, a right-to-work state where the company’s employees are non-unionized.

In a column at Bloomberg.com today, Harvard economist Edward L. Glaeser rightly worries that the NLRB action is undermining one of the most important advantages enjoyed by American-based companies—the freedom of labor, capital, and goods to move freely within the United States. As Glaeser notes:

The profound role that mobility has played in our country, enabling repeated reinvention, causes me to be deeply worried about the possibility that a National Labor Relations Board complaint will prevent Boeing Co. from moving plane production from [unionized] Washington state to South Carolina.

In the spirit of compromise, Congress should eliminate the Ex-Im Bank, while telling the NLRB to back off and let U.S. companies deploy their productive resources in whatever locations within the United States that make the most competitive sense.

How Many 215 Orders?

There was an interesting exchange during a Senate Intelligence Committee hearing yesterday concerning the use of the Patriot Act’s §215 orders for business records and other tangible things. FBI Director Robert Mueller hinted that the orders may have been used to track purchases of hydrogen peroxide purchases in the investigation of aspiring bomber Najibullah Zazi, while Sen. Ron Wyden (D-Oreg.) asserted that there is “a huge gap today between how you all are interpreting the PATRIOT Act and what the American people think the PATRIOT Act is all about and it’s going to need to be resolved.”

Let’s leave our curiosity about that by the wayside for the moment, though. I’m curious about one simple empirical claim Mueller made in his testimony: That the provision has been used over 380 times since 2001. I assume he’d know, but that seems inconsistent with what’s been publicly reported to date. It’s worth noting that there are actually minor discrepancies between the numbers provided in Congressional Research Service reports, audits from the Office of the Inspector General, and the Justice Department’s annual reports to Congress. But there are plenty of legitimate reasons these numbers might vary depending on how you count, and the total variance is a difference of about 17 orders total over the years.

We know from those Inspector General reports that the majority of those 215 orders issued were “combination” orders issued in tandem with another type of surveillance order called a “pen register” so that investigators could get subscriber information about the people whose communications patterns they were tracking. When Congress amended the Patriot Act in 2006, it built that authority right into the pen register statute, making it unnecessary to seek those “combination” orders. Prior to the amendment, the government got 173 of those “combination” orders. “Pure” 215 orders, which are now the only type needed, have been used much more sparingly. None were issued at all until 2004, and from 2004 through 2009 (depending on whose tally you want to use) there were between 75 and 92 orders issued (for an average of 12–15 annually since 2004). Throw in the combination orders and the upper-bound number through the end of 2009 is 265 orders.

Unless I’ve miscounted or missed something significant—you can get the reports at the links above and check my math—that leaves 115 orders unaccounted for, assuming Mueller’s number is accurate. There are two possibilities, then: Either the government got ten times as many orders in 2010 as the historical average (the figures should be out sometime in April) or there are a whole lot of these missing from the public reporting. Possibly these have something to do with the “sensitive collection program” in which these orders play a key role, alluded to in a Justice Department official’s testimony at a hearing during the 2009 reauthorization debate. Either alternative seems like it would merit additional scrutiny. I sent an e-mail seeking clarification this morning to some of the experts at the Congressional Research Service responsible for keeping legislators informed on these issues, but haven’t yet heard back.

I’m not belaboring this because it’s inherently hugely significant whether the government has used this authority 265 times or 380. Ideally, in the coming months we’ll see a substantial narrowing of National Security Letter authority, which would predictably lead to a large increase in the number of 215 orders issued. And that would be entirely proper, since it would mean more information being sought pursuant to a judicial order rather than FBI fiat. What I do think is significant, however, is that this reminds us how little we know—and how little the vast majority of legislators know—about the use of these powers. In contrast with criminal investigative tools, these powers are entirely covert: People whose records are swept up by the government almost never learn about it, and the recipients of the orders are subject to an effectively permanent gag on speaking about them. Rulings of the secret FISA Court interpreting the scope of these authorities are never made public. Our assurance that they have been or will continue to be used properly rests entirely on the minimal required reporting to Congress and the findings of internal audits. And yet it’s hard to pin down the facts on even this most elementary factual question about 215 orders: How many times have they been used?

Despite this, we have legislators confident enough that these expanded powers are both so necessary and so well controlled that they’re advocating making them permanent. I wish I were as confident.

Our Tax Dollars Are Funding Bureaucrats Who Advise Congress that Higher Taxes Increase Prosperity

I’ve already written about the terrible work of the Congressional Budget Office. The CBO did an awful job on the stimulus, for instance, repeatedly asserting that diverting money from the private sector to government somehow would create jobs. CBO also was a disaster on Obamacare, claiming that a giant new entitlement program would reduce budget deficits. And the legislative bureaucracy even has argued that higher tax rates boost growth.

That sounds absurd (and it is), but CBO is not the only taxpayer-funded bureaucracy on Capitol Hill producing this kind of nonsensical analysis. The Congressional Research Service just published a new report asserting that higher tax rates will boost economic performance. Here’s an excerpt from that CRS publication.

…it is ambiguous whether tax cuts lead to more or less work, saving, and investment. The expiration of the tax cuts would nevertheless reduce the budget deficit, absent other policy changes, which economic theory predicts would have a positive effect on the economy in the long run.

To be fair, CRS doesn’t actually claim higher taxes are good for growth. And neither does CBO. But CRS and CBO both assert that there is no clear evidence that higher taxes hurt growth. Budget deficits, however, supposedly have a very negative impact on economic performance according to these Capitol Hill bureaucrats. More specifically, CRS and CBO believe that government borrowing leads to higher interest rates, and they think that higher interest rates reduce investment. And since investment is a key to long-run growth, this leads them to endorse any policy – including higher taxes – that reduces red ink.

Taking the CRS and CBO analysis to its logical extreme (and neither bureaucracy has stated that there are limits to their methodology), tax rates of 100 percent would be the most effective way of maximizing prosperity.

This video explains that the real problem is spending, and that deficits are just a symptom of a government that is too big. This is not to say that CRS and CBO are completely wrong. We have record budget deficits and very low interest rates today, but it’s possible that interest rates might be even lower without all the red ink. And it’s certainly true that interest rates are one of the many factors that determine investment choices, so there’s nothing wrong with including them in the equation.

But magnitudes matter. For all intents and purposes, CRS and CBO want us to believe that more government borrowing will have a very significant impact on interest rates and that those higher interest rates will have a very negative impact on investment. Yet neither bureaucracy offers any evidence for these linkages, in large part because the academic research shows that the relationships between deficits, interest rates, and investment are weak.

By contrast, CRS and CBO have no problem supporting higher tax rates – including more double taxation of income that is saved and invested. Yet there is considerable evidence that punitive tax rates have a significant impact not only on decisions to earn income and be productive, but also on decisions whether to consume today or to save and invest (and thus consume in the future). CRS and CBO also assume, rather naively, that politicians would use any additional revenue for deficit reduction instead of new spending.

Let’s call this the triumph of left-wing theory over real-world evidence. To add insult to injury, the sloppy analysis at CRS and CBO is financed by our tax dollars. So we pay bureaucrats so they can tell politicians to seize more money from us. Gee, what’s not to love about a scam like that?

P.S. If Republicans are actually serious about restraining government spending, CRS and CBO are target-rich environments. Just saying.

A Rough Week for ObamaCare

Half way through the work week, and the White House has had an unusually difficult week concerning the progress of their signature piece of legislation.  Let’s recap:

On Monday, a federal judge cleared a lawsuit brought forth by Virginia Attorney General Ken Cuccinelli regarding the Constitutionality of the recent health care legislation—specifically the individual mandate.  This case will almost certainly be decided by the Supreme Court, but this was an important first step in that process.

Later that day, reports came out that Secretary of HHS Kathleen Sebelius had caught heat regarding misleading statements that claimed ObamaCare would simultaneously pay for the coverage of an additional 30 million Americans and extend the life of the Medicare Trust Fund.  The $575 billion that CMS claims the Medicare program will save as a result of the legislation can be used for one purpose or the other, but not both.

Yesterday, a Congressional Research Service Study announced that it is impossible to estimate the number of new agencies created as a result of ObamaCare.  Most estimates have the number at around 100, but CRS claims that the final tally is “unknowable” because of the uncertainty surrounding some of the language.

Meanwhile, throughout the course of the day yesterday, voters in Missouri were busy voting in favor of Proposition C, a law that would exempt the citizens of Missouri from the requirement to purchase health insurance, the centerpiece of ObamaCare.  The referendum passed by a 3-to-1 margin, but the breakdown of votes is even more telling.

Nearly 670,000 people voted in favor of the proposition, approximately 85,000 votes more than the number of Republican and third-party primary votes.  Even if the 40,000 or so voters who apparently cast a vote for Proposition C but not for a primary candidate all voted in favor of proposition, as well as every single Republican and third-party voter, that still leaves nearly 45,000 Democrats who must have also voted with their Republican constituents in upholding their right to obtain health insurance on a voluntary basis.

Keep in mind that these are not just ordinary, uninterested voters.  These are the base of the Democratic Party, the most politically active citizens, and yet somewhere between 12-25% of them decided to oppose the individual mandate, notably in a state that is often the bellwether of national election campaigns.

If things continue this way, repeal should be on its way by next week.