IPAB Case Coons v. Geithner Dismissed, for Now

Jonathan Adler has a summary at the Volokh Conspiracy.

The Patient Protection and Affordable Care Act’s Independent Payment Advisory Board has been called a “death panel,” though I’ve argued one could just as legitimately call it a “life panel.” Either way, it is the most absurdly unconstitutional part of the PPACA.

Adler’s otherwise excellent summary neglects to mention IPAB’s most unconstitutional feature. Diane Cohen and I describe it here:

The Act requires the Secretary of Health and Human Services to implement [IPAB’s] legislative proposals without regard for congressional or presidential approval. Congress may only stop IPAB from issuing self-executing legislative proposals if three-fifths of all sworn members of Congress pass a joint resolution to dissolve IPAB during a short window in 2017. Even then, IPAB’s enabling statute dictates the terms of its own repeal, and it continues to grant IPAB the power to legislate for six months after Congress repeals it. If Congress fails to repeal IPAB through this process, then Congress can never again alter or reject IPAB’s proposals…

Congress may amend or reject IPAB proposals, subject to stringent limitations, but only from 2015 through 2019. If Congress fails to repeal IPAB in 2017, then after 2019, IPAB may legislate without any congressional interference.

Like I said, absurdly unconstitutional. But that’s ObamaCare for you.

The Size and Scope of Fraud in Medicare

Medicare spends more than $600 billion annually, but not all of that money is spent wisely. Yesterday, I wrote about the Washington Post’s expose on motorized wheelchair fraud. Records suggest that 80 percent of motorized wheelchair claims are “improper,” amounting to billions in waste. Unfortunately for taxpayers, this is just the tip of the iceberg on Medicare fraud.

The Government Accountability Office estimated that Medicare’s “improper payments” amounted to $44 billion, or 8 percent of total expenditures, in 2012. GAO considers Medicare a “high risk” program for its “vulnerabilities to fraud, waste, abuse, and mismanagement.” GAO criticized Medicare for its inability to control the problem saying that Medicare “has yet to demonstrate sustained progress in lowering the rates [of improper payments].”

Other experts believe that GAO undercounts examples of fraud in Medicare. Malcolm Sparrow of Harvard University estimates that closer to 20 percent of claims–or $120 billion annually are improper.

Medicare’s lax oversight of its payment system perpetuates the issue. Millions of claims come in daily and are paid without review or analysis. Scammers know that Medicare payments will not be scrutinized; the chance of getting caught is quite low. Scammers simply adapt and continue finding ways to game the system.

Let’s Demilitarize the Regulatory Agencies, Too

[cross-posted from Overlawyered]

One consequence of the events in Ferguson, Mo. is that people are talking with each other across ideological lines who usually don’t, a symbol being the attention paid on both left and right to Sen. Rand Paul’s op-ed last week in Time. And one point worth discussing is how the problem of police militarization manifests itself similarly these days in local policing and in the enforcement of federal regulation.

At BuzzFeed, Evan McMorris-Santoro generously quotes me on the prospects for finding common ground on these issues. The feds’ Gibson Guitar raid — our coverage of that here — did much to raise the profile of regulatory SWAT tactics, and John Fund cited others in an April report:

Many of the raids [federal paramilitary enforcers] conduct are against harmless, often innocent, Americans who typically are accused of non-violent civil or administrative violations.

Take the case of Kenneth Wright of Stockton, Calif., who was “visited” by a SWAT team from the U.S. Department of Education in June 2011. Agents battered down the door of his home at 6 a.m., dragged him outside in his boxer shorts, and handcuffed him as they put his three children (ages 3, 7, and 11) in a police car for two hours while they searched his home. The raid was allegedly intended to uncover information on Wright’s estranged wife, Michelle, who hadn’t been living with him and was suspected of college financial-aid fraud.

The year before the raid on Wright, a SWAT team from the Food and Drug Administration raided the farm of Dan Allgyer of Lancaster, Pa. His crime was shipping unpasteurized milk across state lines to a cooperative of young women with children in Washington, D.C., called Grass Fed on the Hill. Raw milk can be sold in Pennsylvania, but it is illegal to transport it across state lines. The raid forced Allgyer to close down his business.

Fund goes on to discuss the rise of homeland-security and military-surplus programs that have contributed to the rapid proliferation of SWAT and paramilitary methods in local policing. He cites Radley Balko’s Rise of the Warrior Cop, which similarly treats both manifestations of paramilitary policing as part of the same trend.

As McMorris-Santoro notes in the BuzzFeed piece, Rep. Chris Stewart (R-Utah) has introduced a bill called the Regulatory Agency Demilitarization Act, citing such unsettling developments as a U.S. Department of Agriculture solicitation for submachine guns. 28 House Republicans have joined as sponsors, according to Ryan Lovelace at National Review.

There has already been left-right cooperation on the issue, as witness the unsuccessful Grayson-Amash amendment in June seeking to cut off the military-surplus 1033 program. As both sides come to appreciate some of the common interests at stake in keeping law enforcement as peaceful and proportionate as situations allow, there will be room for more such cooperation.

Are Sinjars like Streetcars?

“Pleikus are like streetcars.” That’s how McGeorge Bundy, President Johnson’s national security advisor, explained what the escalation of U.S. bombing of North Vietnam in February 1965 to had to do with the administration’s justification for it, which was a Vietcong attack on U.S. bases near Pleiku. Johnson had already decided to increase bombing, but he wanted a pretext that would make it seem defensive. Bundy meant that, absent the Pleiku attack, another incident would have come along shortly to justify additional bombing. A similar bait-and-switch is occurring today in U.S. Iraq policy.

On August 7, President Obama explained that we were bombing Iraq again to defend U.S. personnel in Erbil and rescue ten of thousands of Yazidi civilians stranded on Mount Sinjar (really mountains) and surrounded by murderous militiamen of Islamic State of Iraq and the Levant (ISIL). Now, it turns out there were far fewer Yazidis on the mountain than the administration claimed; they are mostly out of harm’s way, and the threat to Erbil has ebbed.

With the two goals he set for bombing achieved, the President quickly offered a third. In the letter sent to Congress on Sunday (pursuant to the War Powers Resolution, which he flouts when it’s inconvenient) the President argued that U.S. bombing would help “Iraqi forces” retake the Mosul dam. Kurdish Peshmerga and Iraqi Special Forces have now done that. 

Monday, the President again broadened the bombing’s objectives. The airstrikes against ISIS still protect U.S. personnel and serve humanitarian purposes, he said, but now, it seems, those are general goals that ongoing bombing serves. The President also suggested that ISIS is a security threat to the United States. Not for the first time, he said that once the new Iraqi government forms, we will “build up” Iraqi military power against ISIS. 

Free Trade Within Countries

Trade policy people spend most of their time talking about free trade between countries.  But there is still some work to do on free trade within countries.  Some Canadians are making a push right now, as Canadian business groups are calling for Canada’s leaders “to dismantle internal trade barriers and ensure the free movement of goods, services, capital and labour between all parts of the country.”

If that sounds odd, don’t get the wrong idea.  It’s not as though Canadian provinces are imposing tariffs on each other.  Rather, this is part of a more advanced notion of free trade, where you have a “single market” for goods and services.  So for example, these groups complain that:

Different regulations and standards means that manufacturers may need to adapt their machinery in order to produce containers such as dairy creamers, butter and drinkable yogurts for sale nationally across all provincial jurisdictions.

Or:

massage therapy is regulated in some provinces but not all, meaning that a professional would have to become certified in order to be allowed to practice.

These issues are difficult to address between sovereign nations, although people are trying, most notably in the Transatlantic Trade and Investment Partnership negotiations.  But within countries, it seems like this is something that could and should be dealt with.  Here in the U.S., we have the famous problem of not being able to buy health insurance across state lines.  The current effort in Canada seems like a valuable one; it might be useful to have a similar review of internal trade barriers here in the U.S.

Support for School Choice Continues to Grow

Today, Education Next released its latest survey results on education policy. As with the Friedman Foundation’s survey earlier this year and previous Education Next surveys, scholarship tax credits (STCs) remain the most popular form of private educational choice. STCs garnered support from 60% of respondents compared to 50% support for universal school vouchers and only 37% support for low-income vouchers.

The Friedman Foundation’s survey found the strongest support for educational choice among younger Americans. While Americans aged 55 and up favored STCs by a 53%-33% margin, Americans aged 18-34 supported STCs by a whopping 74%-14% margin. While it’s possible that younger Americans are more likely to support educational choice because they’re more likely to have school-aged children, it could also be evidence of growing support for educational choice generally. The series of Education Next surveys provides strong support for the latter interpretation, as shown in the chart below. (Note: the 2013 Education Next survey did not ask about STCs.)

Education Next 2014 Survey

While support for STCs was only 46% in 2009, it has grown to 60% this year. Over the same time, opposition has fallen from 27% to 24%, with a low of 16% in 2012. If support among millennials merely remains constant, overall support for educational choice will continue to grow in the coming years, making the adoption and expansion of such programs increasingly likely.

[See here for Neal McCluskey’s dissection of the Education Next survey questions concerning Common Core.]

Spinning the Core, Again

The annual Education Next survey is out, and its headliner is the Common Core. Unfortunately, it features basically the same incomplete, answer-skewing question it employed last year, and reports the same dubious finding of majority support. But even with that, the direction in which opinion has moved speaks volumes about the serious trouble the Core is in.

Just like last year, the question gives a misleading description of either the Core or national standards generically—pollsters asked a version that did not mention the Core by name—and got high rates of support. Here’s the question, with the parts that were omitted, for half the respondents, in brackets:

As you may know, in the last few years states have been deciding whether or not to use [the Common Core, which are] standards for reading and math that are the same across the states. In the states that have these standards, they will be used to hold public schools accountable for their performance. Do you support or oppose the use of these [the Common Core] standards in your state?

Like last year, the question completely ignores major federal coercion behind states’ adopting the Core, as well as the fact that the Core itself is only part of what’s necessary to “hold public schools accountable.” Tests, and consequences for performance on them, are needed for accountability, and those are driven by federally demanded testing and sanctions. Oh, and Washington selected and paid for specific Core-aligned tests.  Meanwhile, generic common standards would in no way have to be used to hold schools accountable; they could just be toothless measuring devices. And how many people would come out against something as seemingly positive as holding schools “accountable”? The devil is in how, exactly, that would be done.