Archives: 02/2012

Will States Lose Medicaid Funds If They Fail to Create an ObamaCare ‘Exchange’?

In recent weeks, officials from two states have claimed that if they do not set up an ObamaCare health insurance “Exchange,” the state will lose federal Medicaid or State Children’s Health Insurance Program funds. Idaho Gov. Butch Otter (R), has since walked back that claim. New Hampshire Commissioner of Health and Human Services Nicholas Toumpas has not.

In a January 19 letter to the New Hampshire House of Representatives, Toumpas writes:

The Patient Protection and Affordable Care Act (“ACA”) mandates that states create a virtual health coverage marketplace called an Exchange. To ensure compliance with this federal mandate the law provides that having an Exchange in place by January 1, 2014, is a condition precedent to receipt of Medicaid funding commencing in 2014.

I have not heard the Obama administration or any other ObamaCare supporter claim that the law contains such a mandate. I have made inquiries in a handful of states. None of them report that the Obama administration has said that failing to create an Exchange will result in the loss of Medicaid or SCHIP funds. If what Toumpas says is true, it will certainly come as a shock to the 35 states that have not enacted legislation to create an Exchange, including many states that have flat-out refused.

But is it true? Parts of ObamaCare might seem to support Toumpas’ claim.

  • Section 1311 declares that each state “shall” set up an Exchange.
  • The law also imposes conditions on the receipt of federal Medicaid and SCHIP funds, and those provisions do make reference to Exchanges. Section 2101 provides that, with regard to certain children who are not eligible for SCHIP, states receiving federal SCHIP funds “shall establish procedures to ensure that the children are enrolled in a qualified health plan that…is offered through an Exchange established by the State under section 1311.”
  • Section 2201 provides that as a condition of receiving federal Medicaid funds, states “shall establish procedures for” several things, including “ensuring that individuals who apply for but are determined to be ineligible for [Medicaid and SCHIP] are screened for eligibility for enrollment in qualified health plans offered through such an Exchange.” The words “such an Exchange” refer to the words “an Exchange established by the State under section 1311,” which appear a few lines before.

Thus, sections 2101 and 2201 might seem to require states to establish an Exchange so that the required “procedures” can interface with it. But there are serious problems with that interpretation.

First, the directive that states “shall” create Exchanges does not amend that part of the U.S. code where Congress imposes conditions on Medicaid and SCHIP funds—i.e., the Social Security Act, or chapter 7 of title 42. It instead appears in chapter 157, which is also where Congress explains that the consequence for failing to create an Exchange is that the federal government will create one.

Second, sections 2101 and 2201 provide, respectively, that states “shall establish procedures to” enroll certain children through a state-run Exchange, and that states “shall establish procedures for” enabling the state’s Medicaid-eligibility system to coordinate with a state-run Exchange. One need not diagram those sentences to see that the object of “shall establish” is “procedures,” not “Exchange.”

Third, ObamaCare does create these “coordination” conditions within the Social Security Act. That fact demonstrates that ObamaCare’s authors knew how to make the directive to create an Exchange an explicit condition of receiving Medicaid and SCHIP funds, if that’s what they wanted to do.

Fourth, if ObamaCare’s authors had intended to condition Medicaid and SCHIP funds on the creation of Exchanges, or if that were a defensible interpretation of the law as written, then one might expect to have heard members of Congress discussing it. One might expect the Obama administration to have informed states of this condition as part of their effort to encourage states to implement the law. I have been paying fairly close attention to this issue. I have seen no evidence of either.

Fifth, the Supreme Court has held that “if Congress desires to condition the States’ receipt of federal funds, it must do so unambiguously, enabling the States to exercise their choice knowingly, cognizant of the consequences of their participation.” It is simply not credible to argue that ObamaCare unambiguously conditions Medicaid and SCHIP funds on the creation of an Exchange. The law never does so explicitly, and the language and structure of the law militate against the claim that it does so implicitly.

A more reasonable interpretation of these conditions is that states will be in compliance so long as they have the required procedures at the ready—regardless of whether those procedures are coordinating with a state-created Exchange, a federal Exchange, or no Exchange (in the event that neither level of government creates one).

I have no doubt that, had ObamaCare’s authors had any inkling that two thirds of states might balk at setting up an Exchange, they would have made it a condition of Medicaid and SCHIP participation. But they didn’t foresee the widespread resistance ObamaCare would encounter. When drafting ObamaCare and for some time afterward, they honestly thought, “The more people learn about this bill, the more they [will] like it.” Thus they didn’t create that requirement.

If Toumpas is the only state or federal official who sees this mandate in the law, that’s probably because it isn’t there. Just as important, there is no evidence that the Obama administration sees or is enforcing such a requirement. If Toumpas has such evidence, he should furnish it.

Until then, New Hampshire and the other 49 states can be confident that refusing to create an Exchange will not cost them Medicaid or SCHIP funds.

CBO Forecast Accuracy

Economic variables are key drivers of the numbers in CBO’s budget projections. I noted last week that CBO’s new outlook assumes substantially lower interest rates, which appears to produce more than a trillion dollars of savings over the next decade.

Policymakers should be aware, however, that macroeconomic forecasts are not very accurate, despite the sophisticated models available today. Consider how CBO completely missed the recent recession until after it had already started (in December 2007).

Figure 1 shows CBO’s January 2008 projection of real GDP growth (blue bars). The recession had already started, yet CBO projected that U.S. growth would strengthen substantially in subsequent years. Their forecast for just one year ahead (2009) ended up being a giant 5.2 percentage points off. (These are fiscal years).

The recession caught most economists by surprise, of course. We know now that the deflating housing sector was a key cause of the recession, but it is interesting that CBO missed the seriousness of that factor, even though they have huge models hundreds of equations in length. Housing prices had peaked in 2005-2006, and had already been falling rapidly for two years when CBO made its faulty January 2008 forecast.

The point here is not to pick on CBO, but to raise skepticism about macro forecasts and the policy prescriptions that stem from macro model simulations. Ezra Klein, for example, is convinced that reducing the deficit at this time would be bad for growth because that’s what (Keynesian) macro models predict. But where’s the real-world evidence that cutting deficits is bad for growth? I’ve noted that Canada cut spending and deficits sharply in the 1990s and its economy boomed—the opposite of what Keynesian models would have predicted.

Klein warns America not to follow Britain’s “austerity” policies: “Note the struggles of Britain, which has embraced austerity more fully than perhaps any other major economy, only to see its growth falter and its total debts rise.”

Apparently, Klein hasn’t looked at the actual British data. OECD data (Table 25) show that U.K. government spending soared from 37 percent of GDP in 2000 to 51 percent of GDP in 2010. Spending in 2011 and expected spending for 2012 is cut to about 49 percent of GDP. That’s the brutal “austerity” policy that is undermining British growth?  

Here’s one more angle on CBO’s forecast accuracy. Figure 2 shows CBO’s January projections from recent years for fiscal 2011 growth. In the first few years shown, CBO was actually strengthening its view of 2011 growth. It wasn’t until 2010 that CBO’s models finally caught up with the reality of the recession, and the forecast for 2011 was sharply downgraded. In January 2012, CBO reported that actual 2011 growth was 2.1 percent.

Upshot: With respect to budget policies, policymakers should forget what the macro models are saying. What we know for sure is that the government is spending $1 trillion a year more than it takes in. That’s just crazy. We need to cut spending, and we need to start now.

As It Turns Out, Money Is Speech

Those who advocate for more restrictions on campaign finance generally practice a populist politics. They fulminate against the influence of money, demonize donors, and ascribe all the nation’s problems to Citizens United. Once you have read an example such reformist rhetoric, you have read all of them. (But if you must read more, here’s E.J. Dionne’s recent, especially over-the-top offering in the genre).

But not all critics of campaign finance are so intellectually empty. Consider the recent op-ed by liberal law professor Geoffrey Stone. He addresses the question: “Is money speech?” For the conventional reformer, of course, money is not speech. Some even wish to amend the Constitution to recognize what they take to be the obvious truth that money is not speech. Stone shows why they are wrong. He remarks, “Not a single justice of the United States Supreme Court who has voted in any of the more than a dozen cases involving the constitutionality of campaign finance regulations, regardless of which way he or she came out in the case, has ever embraced the position that money is not speech.”

Stone says the correct question to ask is “When should the government be allowed to regulate political contributions and expenditures – even if they are speech?”

Regarding expenditures, the Supreme Court has for some time answered this question with “never.” Limits on spending abridge the freedom of speech. That answer makes sense. If any speech implicates “the freedom of speech,” political speech does. If spending funds political speech, the “make no law” admonition in the First Amendment applies to such spending.

The Court has also been especially hostile to government regulations of the content of speech. But campaign finance regulations are always content-based. Most seek to advance a partisan cause expressed in speech. Others seek to suppress speech critical of current officeholders. The rest hope to cut funding to speech that they see as ideologically “incorrect.”

Let’s face it: few would care about campaign finance regulations if such rules did not give hope of suppressing speech they disdain and thereby the triumph of a cause they hold dear. Campaign finance regulations should always be suspect in a nation that values in fact as well as words “the freedom of speech.”

The ‘Law of Nations’ Is What It Was in 1789

One of our oldest laws, the Alien Tort Statute (1789), grants federal courts jurisdiction over lawsuits brought by aliens for actions “in violation of the law of nations.” Courts have differed in their method of interpreting this “law of nations” – an old way of saying “international law” – and thus in their decisions on what behavior violates it and the types of defendants who may be liable. Recent ATS litigation has thus ignited a debate over the role of judges in applying international law.

Kiobel v. Royal Dutch Petroleum presents the question of whether, under the ATS, the law of nations can be applied against an entity that is not a natural person: a corporation. In this case, 12 Nigerians sued Royal Dutch and its Shell subsidiaries, alleging that Nigerian soldiers committed human rights abuses on the companies’ behalf between 1992 and 1995, purportedly in response to demonstrations against oil exploration.

The district court dismissed most of the claims but let certain others proceed. The Second Circuit dismissed the case entirely, holding that the ATS’s jurisdictional grant does not extend to cases against corporations, which are not liable for crimes under the law of nations. The Supreme Court agreed to review the case.

Cato has now filed a brief arguing that the ATS must be interpreted in a manner consistent with Congress’s original jurisdictional grant. This interpretation, supporting the Second Circuit’s ruling, maintains the Constitution’s separation of powers – which gives Congress the power to determine the scope of federal courts’ jurisdiction. Allowing courts to expand their jurisdiction without Congress’s consent would create a “democracy gap” that would be particularly serious here, where the case involves issues of foreign affairs that are appropriately the province of the political branches.

The Supreme Court made clear in Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc. (1999) that evolving methods of interpreting international law do not inform the ATS’s jurisdictional reach, which has not changed since 1789. Nonetheless, lower courts are split on whether corporations may be liable for the sorts of violations at issue here, largely due to their varied interpretive methods.

In our brief, we urge the Court to clarify the proper method of interpreting the law of nations under the ATS. We argue that Judge José Cabranes, a leading international law jurist (and Justice Sonia Sotomayor’s mentor) who authored the Second Circuit’s Kiobel decision, set out the correct interpretive method in an earlier case, Flores v. Southern Peru Copper Corp. (2003). Judge Cabranes’s reasoning in Flores embodied both the guidance that the Supreme Court would give in Sosa v. Alvarez-Machain (2004) and the teachings of classical theorists like Grotius, by defining customary international law as “composed only of those rules that States [countries] universally abide by, or accede to, out of a sense of legal obligation and mutual concern.”

Judge Cabranes used as relevant evidence the States’ formal lawmaking actions, such as international conventions that “establish[] rules expressly recognized by the contesting states” and international custom where the States adhere “out of a sense of legal obligation.” He further acknowledged that the method used in 1789 to interpret what comprised the law of nations defined both the claims and the parties cognizable under international law. By looking to the proper sources, Judge Cabranes correctly concluded that corporations cannot be held liable for violations of international law for ATS purposes, and in so doing recognized the constitutional checks that prevent courts from expanding their own jurisdiction.

The Supreme Court will hear oral argument in Kiobel v. Royal Dutch Petroleum on February 28.

Thanks to legal associate Anastasia Killian for her help with this blogpost.

The Case for Gold — Again

In the New York Times, Floyd Norris reminds us:

The 1980 presidential election was fought by a Democratic incumbent weakened by a poor economy amid worries that the United States had lost its ability to compete in the world. Gold prices had risen to unprecedented levels as the election approached, and the Republican nominee hinted he might propose a return to a gold standard.

That Republican, Ronald Reagan, won the election and soon appointed a commission to study the role of gold in monetary systems.

And now:

Last month, Newt Gingrich, seeking to widen his support in the days leading up to the South Carolina primary, promised that he would appoint a new gold commission. “Part of our approach ought to be to re-establish something Ronald Reagan did in 1981 and that is to have a commission on gold to look at the whole concept of how do we get back to hard money,” he said in a speech.

Whatever the likelihood of Gingrich’s ever being in position to appoint a presidential commission, the minority report of the U.S. Gold Commission, by Rep. Ron Paul and Lewis Lehrman, still makes for worthwhile reading. And conveniently enough, it’s available right here at the Cato Institute. Download a pdf or epub here.

For a more recent analysis, read “Is the Gold Standard Still the Gold Standard among Monetary Systems?” by Lawrence H. White.

Obama’s Neocon Moment

In his State of the Union address, President Obama emphatically declared, “Anyone who tells you that America is in decline or that our influence has waned, doesn’t know what they’re talking about.” Obama sought to put to rest the notion that he is embracing American decline, as GOP candidates Romney, Gingrich and Santorum have accused him of doing. He likewise affirmed his belief in the country’s exceptional place in history.

In particular, this president believes, as his predecessor did, in the necessity of the U.S. military to act beyond its constitutionally mandated function, put out any fires that flare across the globe, and underwrite world security. I examine this in an op-ed published today on

The president sounded like a neoconservative when he declared during his recent State of the Union address that the United States was, and would remain, the world’s “indispensable nation.” Obama’s proposed Pentagon budget, released last week, affirmed his intention to retain most of the U.S. military’s current missions, even when they aren’t needed to safeguard the United States’ vital security interests.

Meanwhile, the Pentagon’s latest strategy document was carefully designed to convince allies and adversaries alike that the United States can continue to prosecute multiple armed conflicts in far-flung corners of the globe. Taken together, Obama’s strategy document, budget and State of the Union remarks articulate a coherent philosophy on military spending and global engagement that ought to hold a lot of appeal for the neoconservatives in the GOP.

But … our foreign policy leaders have consistently ignored … an argument that should have strong sway at a time of economic uncertainty: this country’s tax dollars can be better spent than on defending wealthy allies who are more than capable of protecting themselves.

This talk of the United States as the “indispensable nation” is straight out of the neoconservative playbook. They should have no quarrel with President Obama’s policies. And it is interesting that while Mitt Romney criticizes the president in this arena, Romney foreign-policy advisor, neoconservative stalwart Robert Kagan, has gotten the president’s attention.

Like Kagan and Romney, President Obama believes the world is better off with the United States doing for wealthy allies what they should be doing for themselves: securing their interests. President Obama talked of “fairness” in his State of the Union and a “shared sacrifice” among citizens in these trying economic times. But this sacrifice apparently does not extend beyond the borders of the United States. Under President Obama, as under a Romney presidency, the American taxpayer will continue to pay for the security of Europe and East Asia, and our troops will be saddled with a nearly endless list of missions. That isn’t fair, nor is it wise.

Has Congress Cut Any Spending Yet?

It’s been a year since Republicans assumed control in the House in the wake of the 2010 elections, which were powered by Tea Party concerns about massive federal spending and deficits. With the more conservative House, has Congress made any progress on spending cuts yet?

Let’s compare the new CBO budget projections to CBO’s January 2011 projections. The new 10-year projections do look a little better, at least by Washington standards. A year ago, CBO’s baseline showed the deficit falling modestly from more than $1 trillion this year to $763 billion by 2021. CBO’s new baseline shows the deficit falling to just $279 billion by 2021.

The chart shows federal spending of $3.6 trillion this year and CBO’s projections for 2021 from last year and this year. Last year, 2021 spending was expected to be $5.726 trillion, but this year 2021 spending is expected to be $5.205 trillion. Thus, Congress will apparently be “saving” $521 billion in 2021 compared to what it had planned to spend, although spending is still expected to rise 45 percent over the next nine years.

Of the $521 billion in “savings,” about $317 billion stems from the “cuts” under the budget caps put in place last year plus savings from the upcoming sequester. (The planned sequester results from the failure of the supercommittee). The sequester is supposed to trim entitlement spending a tiny amount and move the budget caps down a little lower. But, as we’ve discussed on Downsizing Government many times, budget caps aren’t real cuts; they are only promises that Congress will restrain spending in the future. “Real” cuts are full terminations of programs or permanent reductions in legislated entitlement benefits. So far, we haven’t seen any substantial real cuts.

The other $204 billion of the $521 billion in savings projected for 2021 result from a sharp reduction in CBO’s projection of federal interest costs. Last year, CBO projected that short-term Treasury rates would rise from about zero percent today to 4.4 percent by the end of the decade, while long-term rates would rise to 5.4 percent. CBO’s new projections show short-term rates rising to 3.8 percent and long-term rates to 5.0 percent. Last year, the short-term rate in 2015 was expected to be 3.9 percent, but this year CBO says it will be just 1.3 percent. These changed interest rate assumptions result in more than $1 trillion of new “savings” over the coming decade.

By the way, I’ve been comparing “baseline” projections here, but most experts think that CBO’s “alternative fiscal scenario” is a better predictor of our future if we don’t make reforms. Under this scenario, spending is expected to rise from $3.61 trillion this year to $5.65 trillion by 2021, a 56 percent jump over nine years. By 2022, spending is expected to top $6 trillion, which would be a 66 percent jump over 10 years.

The upshot is that Tea Party Republicans and other fiscal conservatives have a long, long way to go to get spending under control. Budget caps and sequesters are a step forward, but it’s time for Republicans to step up their game and start focusing on eliminating programs and agencies.