Topic: Regulatory Studies

Senate Leaders Demand Treasury, HHS Inform Consumers About Risks Of HealthCare.gov Coverage

The Obama administration is boasting that 2.5 million Americans have selected health insurance plans for 2015 through the Exchanges it operates in 36 states under the Patient Protection and Affordable Care Act, and that they are well on their way to enrolling 9.1 million Americans in Exchange coverage next year. But there’s a problem. The administration is not warning ObamaCare enrollees about significant risks associated with their coverage. By mid-2015, 5 million HealthCare.gov enrollees could see their tax liabilities increase by thousands of dollars. Their premiums could increase by 300 percent or more. Their health plans could be cancelled without any replacement plans available. Today, the U.S. Senate leadership – incoming Majority Leader Mitch McConnell (R-KY), Majority Whip John Cornyn (R-TX), Conference Chairman John Thune (R-SD), Policy Committee Chairman John Barrasso (R-WY), and Conference Vice Chairman Roy Blunt (R-MO) – wrote Treasury Secretary Jacob J. Lew and Health and Human Services Secretary Sylvia M. Burwell to demand the administration inform consumers about those risks.

First, some background.

  • The PPACA directs states to establish health-insurance Exchanges and requires the federal government to establish Exchanges in states that fail to do so.
  • The statute authorizes subsidies (nominally, “tax credits”) to certain taxpayers who purchase Exchange coverage. Those subsidies transfer much of the cost of ObamaCare’s many regulations and  mandates from the premium payer to the taxpayer. For the average recipient, Exchange subsidies cover 76 percent of their premium.
  • But there’s a catch. The law only authorizes those subsidies “through an Exchange established by the State.” The PPACA nowhere authorizes subsidies through federally established Exchanges. This makes the law’s Exchanges operate like its Medicaid expansion: if states cooperate with implementation, their residents get subsidies; if not, their residents get no subsidies.
  • Confounding expectations, 36 states refused or otherwise failed to establish Exchanges. This should have meant that Exchange subsidies would not be available in two-thirds of the country, and that many more Americans would face the full cost of the PPACA’s very expensive coverage.
  • Yet the Obama administration unilaterally decided to offer Exchange subsidies through federal Exchanges despite the lack of any statutory authorization. Because those (illegal) subsidies trigger (illegal) penalties against both individuals and employers under the PPACA’s mandates, the administration soon found itself in court.
  • Two federal courts have found the subsidies the administration is issuing to 5 million enrollees through HealthCare.gov are illegal. The Supreme Court has agreed to resolve the issue. It has granted certiorari in King v. Burwell. Oral arguments will likely occur in February or March, with a ruling due by June.
  • If the Supreme Court agrees with those lower courts that the subsidies the administration is issuing through HealthCare.gov are illegal, the repercussions for enrollees could be significant. Their subsidies would disappear. The PPACA would require them to repay the IRS whatever subsidies they already received in 2015 and 2014, which could top $10,000 for many enrollees near the poverty level. Their insurance payments would quadruple, on average. Households near the poverty level would see even larger increases. Their plans could be cancelled, and they may not be able to find replacement coverage.
  • The Obama administration knows it is exposing HealthCare.gov enrollees to these risks. But it is not telling them.

Senator Coburn’s Final Report

One the best U.S. senators of recent decades is leaving. No one has spotlighted the ongoing waste in federal spending more than Tom Coburn of Oklahoma. In his farewell address, he advised his colleagues: “Your whole goal is to protect the United States of America, its Constitution and its liberties … it’s not to provide benefits for your state.” As if to underline Coburn’s point, the Washington Post yesterday described how Senator Roger Wicker helped pour $349 million down the drain on an unused NASA facility in his home state of Mississippi.

One of Coburn’s strategies has been to use his expert staff to write investigative reports on federal activities. The huge collection of reports his staff has produced is remarkable. Each one is a big fat indictment of malfunctioning government.

Seeing this stream of high-quality and fun-to-read reports over the years has made wonder what the staffs of the other 99 senators do with their time. Every senator ought to be using his taxpayer-funded staff to try to save taxpayer money. Every senator ought to be digging into the giant $3.6 trillion spending empire that they have collectively created and trying to cut out some of the fat.

Coburn’s final report released last week is another impressive document. Coming in at 320 pages, Tax Decoder digs through the massive federal tax code and highlights hundreds of special deals, carve-outs, and illogical breaks. Tax Decoder’s findings are too voluminous to summarize here, and even seasoned tax wonks will find interesting stuff that they did not know.

Consider the chapter on nonprofit organizations, which spans 42 pages and is buttressed by 462 endnotes. This part of the tax code is a complex mess rife with abuse. Coburn’s staff found that Lady Gaga’s charity raised $2.6 million and handed out just $5,000 one year in benefits, while spending the rest on salaries, promotions, and parties. The Kanye West Foundation spent $572,383 one year, but not a dime on charity.The Cancer Fund for America raised $80 million, but handed out just $890,000 to cancer patients.

While the GAO—an arm of Congress—investigates federal activities, its reports are usually dry and timid. The agency’s role is not to upset its political masters. Similarly, most members of Congress don’t want to upset their colleagues, and so they shy away from criticizing wasteful spending directed to any state, not just their own. It’s easier for them to follow the herd, play the game, grab benefits, and hopefully cruise to safe reelection. Many outside groups and reporters do a great job investigating the government, but senators are in a uniquely powerful and privileged position to lead the charge. 

That’s why Senator Coburn and his staff filled a void with their reports. They uncovered idiocy in the budget, and they informed the public with the juicy details. Many members of Congress say that the government spends too much, but they shy away from specifics. But now that Tom Coburn is going, which members are willing to step up to the plate?   

The Economics of Uber’s Surge Pricing

The recent tragic siege in Sydney has, perhaps unexpectedly, put Uber’s surge pricing system back in the headlines. Some considered the fact that Uber would allow for surge pricing to take effect amid a hostage crisis to be outrageous and insensitive. Yet, surge pricing ensures that Uber drivers will be on the road at times of peak demand and that the passengers who want an Uber ride the most will get one. Uber’s surge pricing system might seem strange and at times extortionate, but it merely puts on display basic economic forces that are at play all the time which most of us never question, and it should not be abandoned at times of high demand or in emergencies.

It is important to remember that surge pricing automatically kicks in thanks to Uber’s price algorithm. There was no Uber employee who decided to impose surge pricing amid a hostage crisis. Uber claimed that it kept surge pricing in place in order to get drivers on the road amid the crisis. Uber has no control over when drivers decide to log into its app, it can only provide financial incentives. Without surge pricing in effect there may well have been fewer drivers willing to get passengers out of Sydney’s Central Business District (CBD), the site of the siege. Uber responded to criticism of its surge pricing by making trips from the CBD free while keeping the surge rate high. Uber also claimed that it was refunding fares for passengers who left the CBD and were charged while surge pricing was in effect. Despite these steps, it should not be forgotten that the criticism Uber initially faced for surge pricing in Sydney was misplaced. Those who did not want to pay Uber’s elevated fares had other means of public transportation by which to leave the CBD.

Uber surge pricing is ordinary supply and demand economics at work. Given that Uber drivers drive at their own convenience it should not be a surprise that they are more likely to get on the road and meet demand at busy times if they can expect higher-than-average earnings. Many of Uber’s rideshare drivers use Uber on a part-time basis. Unsurprisingly, drivers who work more than one job or who have worked a full week may be reluctant to drive on weekends or late into the evening. Uber wants to keep the number of “zeroes” (a term used to describe Uber users who open the app and see no available cars) to a minimum. But, when Uber brought surge prices down to 3x from 6x in east coast cities on New Years Eve in 2012 zeroes were “popping everywhere.”

What is great about a pricing system like Uber’s surge pricing is that it allows users who want an Uber ride the most to have it. Prices are a great way of communicating customer preferences. When you buy a coffee for $3.00, you are telling the market that you value the coffee more than you value $3.00. Likewise, someone who is willing to spend $100 getting home in the early hours of a busy Saturday is signaling that he values the ride home more than he values $100. Many people would not be willing to pay the $100, opting to wait for the surge to end or to find alternative transport home.

At this point some readers might be thinking: “Well yes, Matthew, but many Uber passengers are perhaps not in their most rational state of mind at 2am on a Saturday.” I don’t dispute that. Perhaps one of the best recent examples of someone regretting an Uber ride during surge pricing is the 26-year old Baltimore-based woman who spent $362.57 on an Uber ride home in the early hours of November 1 (her birthday) after “a few drinks.” While some might think this fare is extortionate, it is worth remembering that Uber requires that users first accept that surge pricing is in effect and then enter in the amount of the surge before they request a ride. Uber’s app also allows users to estimate a fare before requesting a ride. Uber does not have a responsibility to make sure that you make good decisions after “a few drinks” in the early hours of a busy Saturday. Once you have accepted that surge pricing is in effect and entered the amount of the surge in the app you have no one to blame but yourself when you wake up with less money in your checking account than you were expecting.

Of course, an argument could be made that surge pricing is reasonable during times of predictable high demand (such as New Year’s and rainy Saturday evenings) but not during a crisis like the one that recently occurred in Sydney. In July, Uber announced that in U.S. cities surge pricing would be capped during disasters. In the wake of the news from Sydney Uber may implement a similar policy in Australia.

Those who are complaining about Uber’s surge pricing system ought to consider the following: given that Uber drivers are setting their own schedules and respond predictably to financial incentives it might not be that strange that having an Uber car driven to your location, which is close to the site of a terrorist attack, can cost more than an ordinary Uber ride.

The Hobbylobbification of America

If you ask reasonably informed consumers of news media what the year’s big Supreme Court case was, most would probably say Burwell v. Hobby Lobby, that case where “five white men” (in Harry Reid’s description) decided that corporations can deny women access to birth control. But, as I’ve said elsewhere, what was at stake in Hobby Lobby has nothing to do with the power of big business, the freedom to use any kind of legal contraceptive, or how to balance religious liberty against other constitutional considerations. Much like Citizens United (which struck down restrictions on corporate political speech without touching campaign contribution limits) and Shelby County (which struck down Section 4(b) of the Voting Rights Act because it was based on obsolete voting data that didn’t reflect current realities as constitutionally required), Hobby Lobby is doomed to be misunderstood.

The case was actually a rather straightforward question of statutory interpretation regarding whether the government was justified in this particular case in overriding religious liberties. The Supreme Court evaluated that question and ruled 5-4 that closely held corporations can’t be forced to pay for all of their employees’ contraceptives if doing so would violate their religious beliefs. There was no constitutional decision, no expansion of corporate rights, and no weighing of religion versus the right to use birth control.

That’s it. Nobody has been denied access to contraceptives and there’s now more freedom for all Americans to live their lives how they want, without checking their conscience at the office door. The contraceptive mandate fell because it was a rights-busting government compulsion that lacked sufficient justification.

That the Hobby Lobby dissenters and their media chorus made so much noise over this case is evidence of a larger process whereby the government foments needless social clashes by expanding its control over areas of life we used to think of as being “public” yet not governmental. The government thus uses private voluntary institutions as agents in its social-engineering project. These are places that are beyond the intimacies of the home but still far removed from the state: churches, charities, social clubs, small businesses, and even “public” corporations (which are nevertheless part of the “private” sector).

Where Alexis de Tocqueville celebrated the civil society that proliferated in the young American republic, the Age of Obama has heralded an ever-growing administrative state that aims to standardize “the Life of Julia” from cradle to grave. Through an ever-growing list of mandates, regulations, and assorted other devices, the government is pushing aside the “little platoons” that made this country what it was. We can call this tide of national collectivism overtaking the presumptive primacy of individual liberty and voluntarism the “Hobbylobbification of America.”

For more on all this, read my recently published book – Religious Liberties for Corporations? Hobby Lobby, the Affordable Care Act, and the Constitution – where my co-author David Gans and I debate all sorts of interesting issues. Perhaps most curious is that I minimize the significance of the ruling or its precedential value, while David says it’s really, really big (and really, really bad). That’s an unusual inversion in Supreme Court commentary; typically the winning side trumpets its victory while the losers try to explain why the decision really doesn’t mean that much. (If you’re curious about any of this, come to our book forum/debate this Tuesday, or watch online.)

Second Circuit Slams Feds on Insider Trading Prosecutions

For years the U.S. Department of Justice and Securities and Exchange Commission have been on a crusade to prosecute “insider trading,” even though it’s far from clear that activity should be criminal to begin with. Lately, those efforts have been led by Preet Bharara, U.S. Attorney for the Southern District of New York, who has obtained more than 80 convictions and plea deals, ruining countless careers and fortunes along the way.

On Wednesday, things changed. A three-judge panel of the New York-based Second Circuit U.S. Court of Appeals—the most influential lower court on questions of financial regulation—unanimously threw out Bharara’s high-profile conviction of hedge funders Todd Newman and Anthony Chiasson, directing that charges against them be dropped. It’s a “huge blow” to Bharara’s campaign, notes the New York Post, while Bloomberg Media calls it a “harsh rebuke” that “is likely to have far-reaching effects.” Alison Frankel of Reuters describes the ruling as “emphatic” and its conclusion “momentous.” The opinion is here.

Yale law professor Jonathan Macey, writing in the WSJ:

[The SEC and Bharara] prefer that the law exalt vague conceptions of “fairness” above the more concrete goals of having robust, liquid and efficient securities markets.

The new opinion is a game-changer. It signals to prosecutors that they cannot bring flawed cases and then hide behind the excuse that the law is vague. The Court of Appeals admonished that “the Supreme Court was quite clear” in previous cases about what is required to establish illegal insider trading.

Specifically, the Supreme Court and the lower federal courts have been explicit in saying that trading on an informational advantage is not necessarily illegal. To be illegal, the courts have said, trading by insiders must involve breaching a duty of trust and confidence. Courts have been clear, as the Supreme Court noted in Chiarella v. U.S. (1980) and again in U.S. v. O’Hagan (1997), that there is no “general duty between all participants in market transactions to forgo actions based on material, nonpublic information” because it is possible to acquire such information legitimately.

Tellingly, the Court of Appeals pointed out “the doctrinal novelty” of the government’s “recent insider trading prosecutions, which are increasingly targeted at remote tippees many levels removed from corporate insiders.”

Future Taxi Deregulation Will Not Look Familiar

Those who have argued for the deregulation of the taxi industry will be familiar with the claim that taxi deregulation was tried in the U.S. and that the results were so undesirable that regulation was introduced. In a recent Washington Post article about ridesharing and taxi regulation, Catherine Rampell states that prices rose in deregulated taxi markets and that the latest calls for deregulation are only the latest in a familiar cycle. However, future taxi deregulation will be different from past deregulation schemes thanks to relatively new changes in technology that allow passengers to overcome knowledge problems that led to price increases in deregulated taxi markets.

Rampell’s article includes some interesting historical insights. Regulations and licensing laws for passenger transport vehicles are nothing new. In the 17th century, Charles I tried to limit the number of horse-drawn carriages in London by passing an order which was ignored. During the Great Depression, some unemployed Americans found a source of income in the unlicensed taxi industry. By the 1990s much of the American taxi industry had been subjected to re-regulation following a wave of deregulation in roughly two dozen cities beginning in the 1960s.

Today, there are calls for the taxi industry to be deregulated amid the growth of ridesharing companies such as Uber, Lyft, and Sidecar. Some argue that taxis cannot fairly compete with ridesharing companies because they are hampered by outdated regulations, and that if taxis were deregulated they would be better suited to compete with rideshare companies. Rampell warns against deregulation, saying that we have “Been there, done that.”

While it is the case that the taxi industry in a number of American cities was re-regulated after a period of deregulation, many of the pricing problems cited as justification for taxi re-regulation are not applicable today thanks to technological advances.

In her article, Rampell links to a 1996 paper on taxi regulation written by Paul Dempsey, a law professor at McGill. The paper highlights an interesting problem that taxi customers face: a lack of good information.

New Study Finds Minimum Wage Increases Hurt Low-Skilled Workers

A new working paper from the National Bureau of Economic Research finds that significant minimum wage increases can hurt the very people they are intended to help. Authors Jeffrey Clemens and Michael Wither find that significant minimum wage increases can negatively affect employment, average income, and the economic mobility of low-skilled workers. The authors find that significant “minimum wage increases reduced the employment, average income, and income growth of low-skilled workers over short and medium-run time horizons.”  Most troublingly, these low-skilled workers saw “significant declines in economic mobility,” as these workers were 5 percentage points less likely to reach lower middle-class earnings in the medium-term. The authors provide a possible explanation: the minimum wage increases reduced these workers’ “short-run access to opportunities for accumulating experience and developing skills.” Many of the people affected by minimum wage increases are on one of the first rungs of the economic ladder, low on marketable skills and experience. Working in these entry level jobs will eventually allow them to move up the economic ladder. By making it harder for these low-skilled workers to get on the first rung of the ladder, minimum wage increases could actually lower their chances of reaching the middle class.

Most of the debate over a minimum wage increase centers on the effects of an increase on aggregate employment, or the total number of jobs and hours worked that would be lost. A consensus remains elusive, but the Congressional Budget Office recently weighed in, estimating that a three year phase in of a $10.10 federal minimum wage option would reduce total employment by about 500,000 workers by the time it was fully implemented. Taken with the findings of the Clemens and Wither study, not only can minimum wage increases have negative effects for the economy as a whole, they can also harm the economic prospects of  low-skilled workers at the individual level.

Four states approved minimum wage increases through ballot initiatives in the recent midterm, and the Obama administration has proposed a significant increase at the federal level. This study should give them a reason to reconsider.

Recent Cato work on this topic can be found here and here

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