Tag: max baucus

ObamaCare’s Authors ‘Handed Their Opponents a Weapon’

Ramesh Ponnuru writes about ObamaCare’s greatest vulnerability:

The debate over President Barack Obama’s health-care law has taken another twist. Now conservatives and libertarians are defending it, while the administration tries to toss part of the legislation out.

The reason for this role reversal is that the drafters of the law outsmarted themselves and handed their opponents a weapon. Now they would like to pretend the law doesn’t say what it does.

Obama’s plan makes tax credits available to people who get health insurance from exchanges set up by state governments. If states don’t establish those exchanges, the federal government will do so for them. The federal exchanges, however, don’t come with tax credits: The law authorizes credits only for people who get insurance from state-established exchanges. And that creates some problems the administration didn’t foresee, and now hopes to wish away…

The administration’s response to the impending failure of its signature legislation – a failure resulting entirely from its flawed design – has been to ignore the inconvenient portion of the law. In May, the Internal Revenue Service decided it would issue tax credits to people who get insurance from exchanges established by the federal government. It has thus exposed firms and individuals to taxes and penalties without any legal authorization. Obviously, that situation sets the stage for lawsuits.

The plaintiffs will have a strong case. Jonathan Adler and Michael Cannon – two libertarians, the first a law professor at Case Western Reserve University and the second a health-care analyst at the Cato Institute – have done more than anyone to bring attention to this issue. They point out that every health bill advanced by Senate Democrats clearly made tax credits conditional on [states implementing the law]. They have also uncovered that during the debate over the bill, Senator Max Baucus, a Democrat from Montana, explicitly said the same thing.

Dirty Deal Done Not So Dirt Cheap

Sen. Max Baucus (D-MT), chairman of the Senate Finance Committee,  Rep. Dave Camp (R-MI)*, chairman of the House Ways and Means Committee, and the White House have just announced that they have made a deal to extend Trade Adjustment Assistance (TAA, the program that extends extra unemployment and health care benefits to workers who lose their jobs because of globalization) until 2013, as part of a broader deal that would see passage of the three outstanding preferential trade agreements with Korea, Colombia, and Panama. The extension of TAA would be included in the legislation to implement the US-Korea Free Trade Agreement, “improved” (i.e., made less liberalizing) by the administration in December.

Interestingly and alarmingly, because implementing the FTAs (which will lower tariff revenue) and paying for the billion-dollar-plus TAA extension “requires” offsets, the draft language specifies in Sec. 601 that revenue should be raised by increasing customs user fees.  This solution was first aired publicly last week, and my friend, trade lawyer (and former Cato-ite) Scott Lincicome pointed out then that raising customs user fees is probably against WTO rules (not to mention counterproductive to the goal of liberalizing trade):

“[C]ustoms fees” are simply hidden taxes on import consumers.  A quick review of the US Customs website on “customs users fees” makes this clear.  They’re paid (mainly) by commercial transporters bringing goods (imports) into the United States, thus raising the costs of importation.  And those higher costs, of course, are eventually passed on to American consumers through higher import prices.

Thus, pursuant to the bi-partisan deal outlined above, the FTAs’ great import liberalization benefits will be immediately and tangibly undermined by new taxes on those very same imports (and others)!

…[I]t would [also] probably violate GATT Article VIII, which governs WTO Members’ imposition of “Fees and Formalities connected with Importation and Exportation” (in other words, customs fees).  The key provision of Article VIII reads:

1.(a) All fees and charges of whatever character (other than import and export duties and other than taxes within the purview of Article III) imposed by contracting parties on or in connection with importation or exportation shall be limited in amount to the approximate cost of services rendered and shall not represent an indirect protection to domestic products or a taxation of imports or exports for fiscal purposes.

WTO panels have interpreted this provision narrowly, and an old GATT panel has actually looked into the US system of customs users fees.  In these cases, the panels have ruled that Article VIII’s requirement that a customs fee be “limited in amount to the approximate cost of services rendered” is actually a “dual requirement,” because the charge in question must first involve a “service” rendered, and then the level of the charge must not exceed the approximate cost of that “service.”  They’ve also found that the term “services rendered” means “services rendered to the individual importer in question,” and that the fees cannot be imposed to raise revenue (i.e., for “fiscal purposes”).[emphasis in original]

Raising customs user fees for fiscal purposes may even go against U.S. law (subparagraph 9B of 19 U.S.C. chapter 1 ss58c).

It’s unclear how far this draft will advance at the “mock mark-up,” scheduled for Thursday afternoon in the Senate Finance Committee, as the ranking member of that committee, Sen. Orrin Hatch (R-UT), is one of the leading critics of trade adjustment assistance.  Senator Hatch has already sent out a press release opposing the inclusion of the TAA renewal in the Korea FTA implementing bill:

This highly-partisan decision to include TAA in the South Korean FTA implementing bill risks support for this critical job-creating trade pact in the name of a welfare program of questionable benefit at a time when our nation is broke. This is a clear breach of Trade Promotion Authority and threatens the ability of American exporters and job creators who stand to benefit from the largest bilateral trade agreement in more than a decade.  TAA should move through the Congress on its own merit and should stand up to rigorous Senate debate. President Obama should send up our pending trade agreements with Colombia, Panama, and Korea and allow for a clean vote.

Senate Minority Leader Mitch McConnell (R-KY) is also apparently critical of the decision to include the TAA renewal in the Korea legislation, preferring instead to consider it only in exchange for something new, i.e.,  a deal on fast track (or trade promotion) authority for further trade deals. As the American Enterprise Institute’s Phil Levy points out, “It is problematic to “buy” the [existing] FTAs with an expanded version of TAA, since those were already “purchased” as part of a May 10, 2007 deal.” [link added] The Republican House leadership is also keen to separate TAA from the FTA implementing bills, in contrast to the opinion and efforts of their colleague Representative Camp.  So the fight is far from over.

If you are interested in hearing more about the trade deals, and how TAA renewal fits in with their passage, Senator Hatch will be speaking at an event at the American Enterprise Institute on Thursday (just hours before the mock mark-up is scheduled to begin). Howard Rosen of the Peterson Institute for International Economics and yours truly will be debating the merits of TAA after Senator Hatch has spoken. More information on the event, including access to the streaming video, here.

*UPDATE: Contrary to what I suggested in my orginal post, Chairman Camp did not in fact join an announcement with the White House and Chairman Baucus about the trade deal Tuesday. He did issue a statement Tuesday evening indicating that although he finds it “regrettable that the White House has insisted on Trade Adjustment Assistance in return for passage of these job-creating agreements,” he has “been willing to work with the White House to find a bipartisan path forward on TAA in order to secure passage of the trade agreements.” So it appears he has agreed to the deal broadly, even if he was not formally part of the announcement, and is still reviewing the details. Chairman Camp’s full statement is available here.

Finally, a Breakthrough on the Colombia Trade Agreement

To no great surprise, the Obama administration announced today that it has cut a deal with the government of Colombia to address concerns about labor protections and to finally move toward enacting the long-stalled free-trade agreement between our two countries. This is welcome news for trade expansion and for strengthening our ties to a key Latin American ally.

Colombian President Juan Manuel Santos is expected to arrive later this week in Washington to cement the deal. In exchange for the agreement, Colombia has reportedly agreed to expand its efforts to protect union members from violence and to more vigorously prosecute those responsible.

As my Cato colleague Juan Carlos Hidalgo and I documented in a Cato study earlier this year, concerns about labor protections were never a valid reason for holding up this agreement. The overall murder rate in Colombia has declined dramatically in the past decade, and the murder rate against members of labor unions has declined even more rapidly. A union member in Colombia today is one-sixth as likely to be a victim of homicide as a fellow citizen who does not belong to a union. Meanwhile, the Colombia government has increased convictions for homicides against union members by eight-fold in the past three years.

As Democratic Senators John Kerry and Max Baucus pointed out in an op-ed this week that endorsed the agreement, the International Labor Organization has certified that Colombia is complying with its international labor agreements.

The obstacle of labor violence was just a political smokescreen that had been raised by labor-union leaders in the United States looking for any shred of an argument to oppose the agreement. Even the agreement announced this week is not going to win over the AFL-CIO. The Colombia government could have raised a hundred murdered union members from the dead, and organized labor in American would still chant that not enough was being done.

The breakthrough this week clears the path for Congress to approve, by what I predict will be comfortable bipartisan majorities, the pending trade agreements with Colombia, Panama, and South Korea.

Our System of Government Exists to Prevent This Kind of Thing

The Hill’s Congress Blog asks, “Will the Senate pass a health care reform bill before it adjourns for the year?”

I answer:

It’s not looking good – nor should it.

The Reid bill becomes less popular with each passing day.  (So too does President Obama’s handling of health care.)

CBS News is reporting that Reid wants to hold a vote before Christmas because he doesn’t want senators to go home and hear from their constituents.

Reid has been systematically suppressing a complete cost estimate of his bill.

Reid’s manager’s amendment will make unknown, countless, and dramatic changes to that 2,074-page bill – and Reid wants to vote on it before anyone knows what those changes are.

Even Max Baucus admits that not a single senator understands the Reid bill.

Our federalist system, the separation of powers, our bicameral national legislature, six-year terms for Senators, staggered Senate elections, and the Senate’s procedural rules all exist precisely to prevent what Reid is trying to do: ram a sweeping piece of legislation through Congress without due consideration.

More Trade News

My colleague Dan Griswold pointed out yesterday some unfortunate editing in the Washington Post. Here are a couple of other trade-related items in the news recently:

  • Sen. Max Baucus (D, MT and Chairman of the Senate Finance Committee) has seemingly thrown his weight behind the idea of “border measures” (i.e., carbon tariffs).  After paying the semi-obligatory lip service to the United States’ obligations under international trade law – and I say only “semi-obligatory” because some U.S. lawmakers appear not to care about it at all – Baucus goes on to deliver this rhetorical gem:

    I think often the United States has to lead,” Baucus said, noting that what lawmakers come up could be used as a model for other countries to copy.

    So the U.S. would saddle its consumers with higher prices in exchange for little benefit environmentally and in the process risk retaliation and alienating countries who it insists are necessary for global cooperation on climate change?

    Some leadership.

    And it may well be that the Chinese have the jump on the United States here, in any case. They’re proposing to introduce a carbon tax of their own, to prevent double-taxation in the form of carbon tariffs by the developed countries (banned under WTO rules) and to keep the carbon tax revenue – collected, remember, from U.S. consumers! – for themselves, all while seeming to play nice on climate change. I bet those who proposed carbon tariffs are sorry they spoke out now. (HT: Scott Lincicome)

  • Brazil has published a list of over 200 mostly consumer and agricultural goods that would be subject to retaliatory tariffs as part of the on-going dispute over U.S. cotton subsidies (an excellent backgrounder to that dispute is available here).

    I note with sorrow that the list also contains intermediate goods, which of course would mean saddling Brazilian manufacturers with higher prices. Even if the Brazilian government isn’t too concerned about  burdening its consumers with extra taxes, rarely a concern of politicians apparently, you’d think they would hesitate to impose higher costs on manufacturers, who employ people.

    Again, it is important to draw a distinction here between the mercantalist political logic of retaliatory tariffs and the economic insanity of increasing costs to your own people in “retaliation” for the harm another country’s policies have done to you. (And no, I don’t count the “game-theory” argument as an “economic” one here. That is a fancy way of saying that in an international relations, i.e. political, sense, retaliation can bring about the desired change.  I’m talking about the fact that costs to consumers from tariffs – whatever their rationale – far outweighing the benefits that producers derive from protection). But this latest development is a sign that Brazil is serious about getting the U.S. to reform its agricultural policies, something it should be doing anyway.

    Brazil was, it should be noted, given permission from the WTO to suspend intellectual property rights protections as a form of retaliation, a new but increasingly attractive way of exacting retribution, but only after a certain amount of damages had been collected the usual way.

  • Max Baucus’s Magic?

    Max Baucus says every single Democratic senator will vote for all the taxes, all the private-sector mandates, all the inter-governmental mandates, all the Medicare spending cuts, and all the new private-insurance subsidies that he and Harry Reid are cobbling together.  What’s left to discuss?

    Baucus may know something I don’t.  But here’s what I do know.

    1. To subsidize Paul, Democrats need to rob Peter.  And Peter ain’t gonna like that, whether “Peter” is union members, small businesses, insurance companies, medical-device manufacturers, sick people, or the middle class broadly.
    2. Of course, the government already does a lot of Peter-robbing and Paul-paying in health care. Democrats could subsidize Paul #2 by cutting subsidies to Paul #1.  But again, Paul #1 — whether “he” be seniors, doctors, hospitals, insurance companies, pharmaceutical manufacturers, medical-device manufacturers, home health agencies, skilled nursing facilities, etc. — ain’t gonna like that.
    3. Members of Congress, including Democratic senators, tend to listen to those Peters and Paul #1s.
    4. Democrats could try to rob future generations, but they (particularly President Obama) have painted themselves into a corner on that one by promising not to add to the deficit.  And with regard to deficit spending, the public appears to be in no mood.

    Heck, I’m sure that Baucus knows a lot of things I don’t know.  But I doubt he knows any magical incantations that’ll make those challenges go away.

    (Cross-posted at Politico’s Health Care Arena.)

    Three Irrefutable Facts About the Baucus Bill

    The Senate Finance Committee votes today on Senator Max Baucus’ version of the health care bill. Cato health care experts have analyzed the bill thoroughly, and point out three vital components to the cost and reach of the legislation:

    1) The real cost of the bill is in excess of $2 trillion.

    Chairman Max Baucus hoodwinked the CBO with a number of clever budgetary gimmicks, most notably by keeping about half of the cost off the federal books. The bill also assumes Congress will make cuts to Medicare payments, which has never once happened before.

    2) The bill contains an enormous middle-class tax hike.

    The bill imposes a 40 percent excise tax on health insurance plans that offer benefits in excess of $8,000 for an individual plan and $21,000 for a family plan. Insurers would almost certainly pass this tax on to consumers via higher premiums. As inflation pushes insurance premiums higher in coming years, more and more middle-class families will find themselves caught up in the tax — providing the government with more revenue.

    3) The bill creates a national ID program.

    The bill contains a paragraph explicitly addressing “eligibility verification.” You must prove who you are to federal entitlement agencies in order to qualify for the bill’s “state exchanges” and tax credits. No ID, no benefits.