Topic: General

AHCA’s Medicaid “Reforms” Would Encourage States to Expand Medicaid

The Epoch Times quotes me on how the American Health Care Act’s Medicaid provisions create almost identical incentives to ObamaCare’s Medicaid expansion:

While both the per capita matching funds and the block grants seek to unleash innovation, they provide the states with very different incentives, according to Michael Cannon, director of health policy studies at the Cato Institute.

“The current per dollar matching grant system provides an unlimited entitlement to federal funds,” Cannon said. “The per capita matching grant system allows the states to keep that unlimited entitlement to federal funds going if they keep expanding enrollment, and so it creates enormous pressure for states to expand enrollment.”

Because able-bodied adults consume less health care than those who are more vulnerable, the per capita matching grants have an unintended consequence, according to Cannon. They will give states incentives to enroll able-bodied adults in preference to others who are more needy.

Cannon prefers giving the states block grants, which have the benefit of limiting federal expenses to a fixed amount, making the program financially sustainable.

For more, read my Philadelphia Inquirer op-ed, “Fulfill Promise to Repeal ObamaCare.”

Controversial Subjects in Involuntary Educational Institutions

Last week, the Cato Institute hosted a policy forum on teaching controversial subjects such as sex and religion in k-12 educational institutions. All of the panel members pointed out that schools needed to do a better job at improving student civic outcomes such as character skills and tolerance of others’ views; however, a couple of the speakers claimed that the issue is not a result of our traditional system of public schooling.

This assertion fails to recognize the scientific evidence and, more importantly, the clear logic of incentives.

While families have a diverse set of values and goals for their children, the political process regurgitates a uniform educational environment. Further, since children are forced to attend schools based on zip codes, the government perhaps rightfully protects various family values by avoiding controversial discussions altogether. After all, if public schools were teaching that evolution was not real, many parents would obviously be very upset.

Of course, it is not the fault of public school employees. If you or I were held accountable to standardized test scores, we would probably not allocate a lot of time towards fostering friendly debates on provocative topics. In fact, it would be a risk to do so if we taught in a state that had laws attempting to protect individual family values. It is completely rational that traditional public schools are not spending much time on controversial issues.

On the other hand, if families had the ability to opt into or out of schools based on their values and goals, the state would not need to protect them. In addition, if parents cared about civic skills such as citizenship and tolerance, they would be able to reward schools for improving the lives of their children. Further, schools would not have the perverse incentive to focus on standardized tests if they were accountable to parents instead of public officials.

The scientific evidence largely supports the theory. Dr. Patrick Wolf’s review of the evidence finds that school choice increases civic skills. Moreover, my forthcoming review of fourteen rigorous studies also shows that private school choice improves civic outcomes such as crime and tolerance.

We must not pretend that the scientific evidence is mixed on such an important topic. We also must not pretend that school systems have nothing to do with shaping skills that will impact children and societies for years to come. If we wish to live in a more tolerant society, we ought to listen to scientific evidence, clear logic, and the needs of all families.

Methods of Presidential Defenestration

How do you solve a problem like the Donald? In a much-discussed column that ran Tuesday, Ross Douthat offered “The 25th Amendment Solution for Removing Trump.” Our 45th president has, by now, Douthat argues, demonstrated a breathtaking lack of the minimum requirements for the position he holds: including “managerial competence, a decent attention span… [and] a measure of restraint and self-control.” But given that his offenses thus far smack less of “high crimes [than] simple omni-incompetence,” removal under the 25th Amendment, on the grounds that Trump is “unable to discharge the powers and duties of his office,” is constitutionally “more appropriate” than impeachment, Douthat writes.

As a libertarian, I’m a sucker for crazy, longshot ideas, so of course I enjoyed the column. But Douthat’s argument rests on an unexamined assumption: that the impeachment power is categorically unavailable in cases of “omni-incompetence.” I don’t think that’s right. As I argue in a forthcoming piece for Reason magazine, this is the rare congressional power that’s actually broader than Congress believes it to be. (I’m sure Nick Gillespie’s going to love it.) 

The view that you can’t impeach a president for gross incompetence is widely shared, and some of the legislative history behind Article II, section 4, supports it. According to Madison’s notes on the Constitutional Convention, when George Mason moved to add “or maladministration” to the list of impeachable offenses, Madison objected that “so vague a term will be equivalent to a tenure during pleasure of the Senate.” Mason then substituted “high Crimes and Misdemeanors,” and that’s what we ended up with.

But that text does not preclude all cases of “maladministration.” As the Nixon-era House Judiciary Committee report on “Constitutional Grounds for Presidential Impeachment” noted, “at the time of the Constitutional Convention, the phrase ‘high Crimes and Misdemeanors’ had been in use for over 400 years” in British impeachments,” and extended to negligent discharge of duties, “procuring offices for persons unfit and unworthy of them,” and other transgressions falling short of grave criminality. Early American commentators, like Justice Joseph Story, understood the phrase to include offenses “growing out of personal misconduct, or gross neglect, or usurpation, or habitual disregard of the public interests, in the discharge of the duties of political office.” 

About That Private School Disability “Discrimination”

Everyone wants what’s best for children with disabilities. So it is not surprising when private schools—and hence school choice programs—are criticized because they do not have to accept all children with disabilities. We’ve heard the concerns before, and we heard them again in an NPR story yesterday taking the Indiana voucher program to task for private schools turning away kids with disabilities.

How could they be so cruel, we might ask, and choice supporters so callous?

Let’s start with a simple reality: Educating children with disabilities is generally more expensive than educating children without them, and private schools often struggle just to pay for educating the latter group. That should be no surprise: In the 2011–12 academic year—the most recent with public and private data—public schools spent $13,398 per pupil. Private schools, which rely on families paying tuition after they have paid taxes for the “free” public schools, charged on average $11,170, and many private students receive tuition discounts and aid. For Roman Catholic and other religious institutions—the most numerous private schools—tuition was even lower: $7,170 and $9,040, respectively. Private schools do sometimes receive subsidies from parishes, dioceses, and donors, but it is herculean task to overcome public schools’ big funding and pricing advantages.

But in Indiana there is a voucher program, so surely private schools there have no excuse.

Set aside that for most of the life of Hoosier private schools there was no voucher program—it only started in 2011—so they were hard-pressed to compete for non-disabled students, much less establish robust special education programs. Is the funding equitable now?

No. As the NPR story notes, “the poorest students qualify for a voucher that’s worth roughly 90 percent of what the state would have spent in a public school, but now some middle class families actually qualify for a half voucher.” So no one using a voucher gets their full state allotment. And the state is only one funder of public schools; altogether, Indiana public schools spent over $10,000 per student. What’s the biggest average voucher? Only about $5,700.

Obstruction of Justice

President Trump is being accused of “obstruction of justice” because of a conversation that he may have had with former FBI Director James Comey.  According to the news stories, Trump may have asked Comey to lay off his former National Security advisor, Michael Flynn.  In this post I want to briefly examine the legal doctrine of obstruction of justice.

To begin, a basic principle of American criminal law is that the line between what’s lawful and what’s unlawful needs to be clear so we will know, in advance, what conduct might land us in a prison cell.  That’s the gist behind the constitutional prohibition of ex post facto laws.  Laws with vague terms raise the same danger.  When laws are vague, police and prosecutors can abuse their power and trap people.  And that’s the danger with a catch-all doctrine such as “obstruction of justice.”

“Obstruction” has sometimes been defined by the authorities as almost any action that “impedes” an investigation.  Invoking your constitutional right to silence, your right to speak with an attorney, or the attorney-client privilege are sometimes deemed “obstruction.”  Don’t the courts restrain those abuses?  Yes, sometimes they do.  I’m presently editing a book of Judge Alex Kozinski’s legal opinions.  One case, United States v. Caldwell, touches on this subject.  Here is Judge Kozinski:

Under the government’s theory, a husband who asks his wife to buy him a radar detector would be a felon — punishable by up to five years in prison and a fine of $10,000 — because their actions would obstruct the government function of catching speeders. So would a person who witnesses a crime and suggests to another witness (with no hint of threat) that they not tell the police anything unless specifically asked about it.So would the executives of a business that competes with a government-run enterprise and lowers its prices to siphon off the government’s customers. So would co-owners of land who refuse to sell it for use as a military base, forcing the government to go to the extra trouble of condemning it. So would have Elliot Richardson and William Ruckelshaus, had they agreed with each other to quit if asked by President Nixon to fire Archibald Cox. The federal government does lots of things, more and more every year, and many things private parties do can get in the government’s way. It can’t be that each such action is automatically a felony.

I should note that when James Comey served as a prosecutor in New York, he pursued Martha Stewart and went so far as to say that her assertion of innocence was itself a violation of the law!  When Comey worked as assistant attorney general, he also took a dangerously expansive view of what he considered “uncooperative” conduct by business firms.  He expected lawyers for business firms to act as deputies for the federal government, which raised constitutional problems—especially for employees who were unaware of the legal minefield all around them during a purported “internal” investigation.

Can the Iran Deal Survive?

The Iran deal is working as advertised by containing Iran’s nuclear weapons program. That non-proliferation success creates a greater one: it vastly lowers the odds of a U.S. attack on Iran and pacifies relations. That’s what makes the deal anathema to those on both sides who would preserve enmity to gain in domestic political fights.

The deal’s fate may be sealed in the coming weeks. A presidential election Friday in Iran will either re-elect Hassan Rouhani, who pushed for the deal and now defends it, or replace him with a hardliner. The Trump administration recently launched a review of Iran policy and the deal, which could yield a decision to try to undermine the agreement or to truly stay in it.

Under the 2015 deal, officially the Joint Comprehensive Plan of Action, Iran agreed to limit its nuclear program in various ways and allow International Atomic Energy Agency inspections in exchange for relief from some of the sanctions that the United States, the European Union, and the UN Security Council had imposed and the release of frozen funds. The deal leaves in place sanctions on Iran for human rights violations, ballistic missile development, and support for terrorist organizations. The Obama administration also dropped charges against a number of Iranian sanctions violators in exchange for Iran’s release of four American prisoners.

Last fall’s elections put the deal in peril. They matched a Republican Senate majority that had openly tried to undermine the deal’s negotiation with a militaristic president who opposed it as a candidate. Trump made typically contradictory statements about the deal in campaigning but mostly voiced hostility typical of GOP hawks. For example, he told the AIPAC convention, “My number-one priority is to dismantle the disastrous deal with Iran.” Trump’s top foreign policy appointees seemed to share a particular hostility to Iran. Even Secretary of Defense James Mattis, who many saw as a lone voice of foreign policy caution, had notably belligerent views on Iran, even bizarrely suggesting that it had created ISIS, despite Iran’s aide for ISIS’s opponents in Iraq and Syria.

Despite this rhetoric, neither Congress nor the administration has raced to dismantle the deal. Congressional leaders have suggested they expect to abide by it. Senator Bob Corker (R-Tenn), chairman of the Senate Foreign Relations Committee did join the panel’s ranking member Robert Menendez (D-NJ) to introduce a bill that would heighten sanctions on Iran for missile development, support for terrorist organizations, and human rights abuses. Though adopting the bill would antagonize Iran and make it more difficult for the United States to hold up its end of the bargain, it would not directly violate its terms.

The Trump administration, thus far, has stuck with the deal, while huffing and puffing. Officials say they’ll honor its terms pending a review run by National Security Advisor General H.R. McMaster, who, notably, isn’t a strident proponent of confrontation with Iran, like his predecessor, General Michael Flynn. The State Department recently certified Iran’s compliance but, in the same press release, proclaimed Iran’s continued support for terrorism. Secretary of State Rex Tillerson knocked the deal for failing “to achieve the objective of a non-nuclear Iran,” seemingly referring to its retention of enrichment facilities. President Trump then claimed that Iran is “not living up to the spirit of the agreement” and called it “terrible.”

These statements are a boon to Iran’s hardliners, who call the deal a capitulation to the United States, which they see as irredeemably hostile. Evidence of that hostility also comes in U.S. policy: the Corker-Menendez bill, Iran’s inclusion in the Trump administration’s legally-fraught travel ban, potentially-heightened U.S. military aid for their rival Saudi Arabia in its brutal bombing campaign in Yemen, and a likely massive arms sale to the Saudis.

Knowing about Segregationist Housing Policy Is the First Step to Justice

In education, there is a widespread belief: the federal government ended segregation. This is, of course, based on the Supreme Court’s landmark ruling in Brown v. Board of Education, and subsequent federal efforts to end segregated schooling. But as a sobering new book by the Economic Policy Institute’s Richard Rothstein makes clear, while all levels of government forced, coerced, or cajoled racial segregation through housing policy, the feds may have been the worst, and the crippling legacy of those actions may be much further reaching than even schooling policy.

The Color of Law: A Forgotten History of How Our Government Segregated America is essentially a catalogue of discriminatory housing policies perpetrated throughout the 20th Century, but peaking from the 1930s through the 1960s. It chronicles local injustices including police ignoring or even stoking mobs that tormented African Americans who dared buy a home in a white neighborhood, and states with segregationist intent mandating local referenda to approve low-income family public housing. But it is the federal government that seems to have had the most powerful hand in it all, if for no other reason than only it could sweep every American into the corners where it decided they did—or did not—belong.

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