Archive for May, 2010
Ask Kagan about ObamaCare
Senate Judiciary Committee members should be sure to ask Solicitor General and Supreme Court nominee Elena Kagan, during her upcoming confirmation hearings, whether she or her office played any part in crafting ObamaCare or the administration’s defense to the lawsuits challenging that law. If Kagan helped to craft either, that would present a conflict of interest: when those lawsuits reach the Supreme Court, she would be sitting in judgment over a case in which she had already taken sides.
Though the Solicitor General deals with appellate matters, it is certainly possible that Kagan was consulted during the drafting of the law or the administration’s legal strategy for defending it.
The Senate Democrats who drafted ObamaCare took pains to protect it from a constitutional challenge. The law contains several pages of findings designed to show that the Constitution’s commerce clause authorizes Congress to force Americans to purchase health insurance. It would have been prudent for Senate Democrats to ask the government’s top appellate lawyer, who belongs to the same political party, whether they had done all they could to protect the “individual mandate” from a constitutional challenge.
Opponents began filing legal challenges to ObamaCare just minutes after President Obama signed it into law, and seven weeks before he announced Kagan’s nomination. On Tuesday, the Obama administration filed its first response, to a private lawsuit. According to the Associated Press, that filing “is to be followed in coming weeks and months by federal government court responses to lawsuits filed by many states.” Regarding the case filed by 13 (soon to be 20) state attorneys general, The New York Times reports, “Some legal scholars, including some who normally lean to the left, believe the states have identified the law’s weak spot and devised a credible theory for eviscerating it.” It is not certain, but it is certainly possible that the Office of the Solicitor General was consulted on the government’s response to lawsuits that would likely reach the Supreme Court.
If Kagan played a role in drafting ObamaCare or formulating the administration’s legal defense, and is confirmed by the Senate, propriety would dictate that she recuse herself from any challenges to that law that reach the high court. Supporters and opponents alike should be interested to know whether the Court will judge ObamaCare with nine justices on the bench, or eight.
Filed under: General; Government and Politics; Health Care; Law and Civil Liberties
The Wall Street Journal’s Surveillance Fantasies
There are too few periodical venues for good short fiction these days, so I’d normally be enthusiastic about the Wall Street Journal‘s decision to print works of fantasy. Unfortunately, they’ve opted to do so on their editorial page—starting with a long farrago of hypotheticals concerning the putative role of the Foreign Intelligence Surveillance Court in hindering the detection and apprehension of failed Times Square bomber Faisal Shahzad. In fairness to the editors, they acknowledge near the end of the piece that much of it is unvarnished speculation, but their flights of creative fancy extend to many claims presented as fact.
Let’s begin with the acknowledged fiction. The Journal editors wonder whether Shahzad might have been under surveillance before his botched Times Square attack, and posit that the NSA might have intercepted communications from “Waziristan Taliban talking about ‘our American brother Faisal,’ which could have been cross-referenced against Karachi flight manifests,” or “maybe Shahzad traded seemingly innocuous emails with Pakistani terrorists, and minimization precluded analysts from detecting a pattern.” Anything is possible. But it’s a leap to make this inference merely because investigators appear to have had fairly specific knowledge about his contacts with terrorists after he had already been identified. They would not have needed to “retroactively to reconstruct his activities from other already-gathered foreign wiretaps:” Once they had zeroed in on Shahzad, his calling patterns could have been reconstructed from phone company calling records whether or not he or his confederates were being targeted at the time the communications occurred, and indeed, those records could have been obtained by means of a National Security Letter without any oversight from the FISA Court.
A Response to Jonathan Gruber on ObamaCare & Health Care Costs
In this week’s New England Journal of Medicine, MIT health economist and Obama administration consultant Jonathan Gruber responds to claims that ObamaCare will increase health care costs. Gruber acknowledges the Obama administration’s estimates that ObamaCare will increase health care spending, but compares that to the administration’s estimate that 34 million otherwise uninsured U.S. residents will obtain coverage under the law:
[B]y 2019, the United States will be spending $46 billion more on medical care than we do today. In 2010 dollars, this amounts to only $800 per newly insured person — quite a low cost as compared (for example) with the $5,000 average single premium for employer-sponsored insurance.
What a bargain! Of course, Gruber is being sneaky. The cost per newly insured person is not $800. It will be higher than $5,000. But only $800 of that cost will appear as new health care spending. The rest of that cost will be borne largely by people who already had coverage, but find their access to care reduced. These include Medicare enrollees who will receive fewer benefits through (or who will be ousted from) their private Medicare plans; Medicare enrollees who will have a harder time accessing care because some hospitals, skilled nursing facilities, home health agencies and other providers “might end their participation in the program,” according to the Obama administration; and maybe even some (currently) privately insured people who find themselves in Medicaid. (The administration itself says it is “probable” that ObamaCare “could result…in some of this demand being unsatisfied.”) Other costs include the economic growth and opportunity that is destroyed by ObamaCare’s tax increases, and the costs associated with trapping workers in low-wage jobs.
And that’s if everything goes as planned. Gruber remains convinced that future Congresses will not undo ObamaCare’s tax increases or downward adjustments to Medicare’s price controls, as Congress has consistently undone scheduled reductions in the prices that Medicare pays physicians. Gruber’s sometime employer — the Obama administration — itself contradicts his argument when it writes that the bulk of those reductions in Medicare spending are “doubtful” and “unrealistic.” Gruber inadvertently shows why critics are right to be skeptical about the tax increases and spending reductions when he writes:
The cuts in spending and increases in taxes are actually “back-loaded,” with the revenue increases rising faster over time than the spending increases, so that this legislation improves our nation’s fiscal health more and more over time.
The fact that the austerity measures had to be backloaded is a sign of their implausibility. If they were popular, they could take full effect tomorrow. But their implementation had to be delayed to head off significant political resistance — resistance that will express itself between now and when those austerity measures take effect.
On the broader issue of reducing the growth of health care spending, Gruber claims that ObamaCare “cautiously pursue[s] many different approaches toward cost control and stud[ies] them to see which ones work best.” Yet each approach is all but guaranteed to fail. The tax on high-cost health plans? Unlikely to survive. (But at least Gruber now admits it is a tax.) The rationing board designed to curtail each congresscritter’s ability to keep the money flowing to health care providers in their districts? Also unlikely to survive, for obvious reasons. Pilot programs experimenting with different government price and exchange controls? Even successful pilot programs get nixed. Comparative-effectiveness research? A pipe dream that fails every time the government tries it.
To the extent that these spending cuts fail to materialize, health care spending will rise, and deficits will deepen. Congress will need to impose additional tax increases, and/or find sneakier ways to ration medical care curb health care spending. Gruber’s Massachusetts enacted ObamaCare four years ago, and that’s exactly what state officials are doing.
Since President Obama signed this law, the Congressional Budget Office has announced that its cost, including the so-called “doc fix” and spending subject to appropriations, is already about $200 billion higher than previously believed. As I’ve written elsewhere:
ObamaCare would create new constituencies for government spending, hook existing constituencies on even more government spending, and promise implausible cuts in existing subsidies to constituencies that are highly organized and vocal.
Gruber gets chutzpah points for arguing that the same law would actually contain health care costs.
England Is the New France
The chart below shows everything you need to know about why the United Kingdom is a fiscal disaster. Over the past 10 years, the burden of government spending has skyrocketed from 36.6 percent of GDP to more than 53 percent of GDP. Taxes, meanwhile, have remained largely unchanged, averaging about 40 percent of GDP.
Since the OECD numbers show that the fiscal crisis in the U.K. is solely the result of a bloated public sector, the obvious solution is … you guessed it, higher taxes.
David Cameron’s new coalition government has announced support for a higher capital gains tax and is signalling that this will be followed by an increase in the value-added tax.
There are some proposals to curtail the growth of spending, including some pay cuts for Prime Minster Cameron and other political figures, but I will be very surprised if those amount to more than window dressing. The United Kingdom, I fear, has gone past the point of no return in the journey toward becoming indistinguishable from the decrepit welfare states so common in the rest of Europe.
My First Appearance on The Daily Show
It’s about 3:43 into this Louis Black segment. I think my expression is … appropriate.
| The Daily Show With Jon Stewart | Mon – Thurs 11p / 10c | |||
| Back in Black – Glenn Beck’s Nazi Tourette’s | ||||
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Now International Curriculum Standards?
Mark Schneider, a former National Center for Education Statistics commissioner and current American Enterprise Institute scholar, has put together a very insightful — and disturbing — four-part blog series on the oft-cited Programme for International Student Assessment (PISA) and its creator, the Organization for Economic Cooperation and Development. Basically, Schneider writes, the much-hyped PISA figures very prominently in the “international benchmarking” of coming national curriculum standards — which the Obama Administration is coercing states to adopt — despite the paucity of meaningful evidence that doing well on PISA actually translates into desirable educational outcomes.
Now, Schneider throws out some debatable stuff himself. For instance, he emphasizes early-grade progress on the federal, National Asessessment of Educational Progress while ignoring utterly flat results for 17-year-olds. He also reiterates several things that I have already pointed out in “Behind the Curtain: Assessing the Case for National Curiculum Standards.” Still, his points overall are generally very fresh, and very important. It is also heartening to see growing critiques, even if somewhat oblique, of the national standards that many on the left and right are hoping to impose on us in the coming months.
Let’s Get Serious about Immigration Reform
The controversy over America’s immigration policy does not allow for easy answers, as the post below by Roger Pilon demonstrates. Even among those of us who advocate limited government and free markets, there is room for debate about what our immigration policy should be and the order in which needed reforms should be pursued.
Roger gives a welcome nod to the argument for “a serious guest-worker program,” which I’ve argued is essential to any successful reform effort. He also acknowledges that its implementation should be in concert with serious enforcement rather than delayed indefinitely by demands that we “control the border first.”
One place where I differ with my dear colleague is in his assertion that: “We no longer control our southern border, and Congress seems unable or unwilling to do anything about it.”
I’m not sure there ever was a time, at least in recent decades, that the U.S. government exerted “control” over the southern border in the sense that illegal entry was largely prevented. Sealing a 2,000-mile border remains a daunting challenge to those who advocate it.
If anything, our border with Mexico is more under control today than at any time in recent years. According to estimates by the Pew Hispanic Center and the Department of Homeland Security, the number of people living in the United States illegally has dropped by more than 1 million in the past two years. That strongly implies that the net inflow of illegal immigrants across the border has declined sharply.
The main reason for the drop in net illegal immigration is probably the recession, but increased enforcement has arguably played a role as well. According to a recent paper by Dr. Raul Hinojosa-Ojeda of UCLA, the federal government has dramatically increased the resources it spends to “control the border.”
Consider: The U.S. Border Patrol’s annual budget has shot up by 714 percent since 1992, from $326 million to $2.7 billion. During the same period, the number of Border Patrol agents stationed along the southwest border has grown from 3,555 to 17,415. Hundreds of miles of fencing has been constructed along the border, much of it across private property.
If this is the mark of a government “unwilling to do anything,” I would shudder at the cost and intrusion of a more concerted effort.
The bottom line is that our “enforcement only” approach to controlling the border has failed, and it will continue to fail until we create a legal alternative to illegal immigration.
Another View on Immigration
With all due respect to my colleague Roger Pilon, I can’t say I share his views on immigration. This is an old, old argument among libertarians, so it should come as no surprise that someone takes the opposing view here. Roger writes,
We no longer control our southern border, and Congress seems unable or unwilling to do anything about it. It hardly needs saying that a welfare state, in the age of terrorism, cannot have open borders.
It’s never really been the case, though, that we did control that southern border. Passage has always been relatively easy, at least aside from the natural dangers. This may be a good thing or a bad thing, but it’s a matter of historical fact. We can certainly change that, but it will only be by doing something relatively new.
As to the welfare state, don’t expect me to shed any tears. Our welfare state is already well on the path to bankruptcy, with or without illegal immigrants. Compared to the damage being done by native-born U.S. citizens and their cursedly long lifespans, the immigrants’ overall effects are quite small. It would be unkind of us to set up such an ill-considered system and then pin its inevitable demise on others.
And as to terrorism, there are measures we could take that would both combat it and increase individual liberty — like legalizing recreational drugs. Without the black market in drugs, we’d have a lot less to fear from terrorists, particularly on our southern border. I can’t say I favor a liberty-restricting policy to quash terrorism when a liberty-increasing policy seems to do even better.
Did Kagan Have a “Disparate Impact” on Military Recruiters?
Perhaps you remember the case of Ricci v. DiStefano, so much discussed during Sonia Sotomayor’s confirmation process? To recap briefly: The city of New Haven had used a written test to determine which of its local firefighters would be considered for promotions. When the tests came back, it turned out that the high scorers were overwhelmingly Caucasian, and so the city—fearing a lawsuit from black and Latino firefighters who hadn’t made the cut—scrapped the results. Not, mind you, because the test was in any way discriminatory on its face, but because federal law frowns on any test that has a “disparate impact” on minority groups unless it can be shown to be both closely related to the requirements of the job and less uneven in its effects than comparable alternatives. A number of the white firefighters then sued, claiming that it was discriminatory to discard the test after the fact just because the high scorers were too pale. Bracket the question of how Sotomayor, as a circuit court judge, should have ruled. Clearly as a policy question, most conservatives seemed disposed to side with the firefighters, and in general conservatives have been highly skeptical of “disparate impact” standards. If the standards are facially neutral, and were not chosen with any pernicious intent (the argument runs), we should let the chips fall where they may. Sounds fairly compelling to me.
So it’s a little odd to see folks like Weekly Standard editor Bill Kristol casually talk about Elena Kagan’s “discrimination against the military” during her tenure as dean of Harvard Law School. All Kagan did, after all, was enforce Harvard’s preexisting rule requiring firms wishing to recruit through the school’s Office of Career Services to certify that they did not discriminate by sexual orientation. (This is not the same, incidentally, as “banning recruiters from campus”—the military did continue to recruit on campus via a student group.) It was a neutral rule that applied to any company that wished to avail itself of the Office of Career Service’s assistance, from which the military would have required a special exemption. Kristol clearly didn’t think much of the logic of “disparate impact” in the Ricci case, so why is he so quick to adopt it here? There are many good reasons to be worried about Kagan, not least her apparent fondness for an expansive conception of executive power, but a commitment to even-handed application of the rules is not among them.
Stopping and Searching
Police in New York City conducted 575,000 “stops” in 2009. The actual number could be higher–depending on the number of stops the police decided not to record on paper. The ‘stop and search’ is a legally dubious tactic that persists largely because white, middle-class people are mostly unaffected by it. It is bad enough when the officers are in uniform, but gets worse when the police are in plain clothes and approach people rapidly. The police “target” may have only seconds to determine whether he/she is facing a mugging or a police stop. More here.
Getting Serious about Immigration
Today Politico Arena asks:
Does the level of support for Arizona’s immigration law demonstrate that immigration can be a potent campaign issue in the 2010 midterms?
My response:
Few national issues produce more heat and less light than immigration, as the reaction to Arizona’s recent legislation on the subject demonstrates. And with nearly three-quarters of Americans now saying they approve of allowing police to ask for documents, according to the latest Pew Research Center poll, and the Arizona law’s approval-disapproval rating at nearly 2 to 1, it’s hard to imagine that immigration will not be a factor in the coming elections.
The issues surrounding the immigration debate — criminal, economic, social — are often complex, and not always clear. But the underlying issue is clear: We no longer control our southern border, and Congress seems unable or unwilling to do anything about it. It hardly needs saying that a welfare state, in the age of terrorism, cannot have open borders. If the failure to control is partly a function of our substantive law — the absence of a serious guest-worker program, for example — then that needs to be corrected. But it needs to be done in concert with serious enforcement.
Yet what was President Obama’s response to the Arizona law, which at bottom was a call to Washington to do something? It was to ask the Justice Department to look for any legal problems in the law and to respond accordingly. It was to play the presumed political card, that is, rather than to address the underlying issue, which he’d promised to do during his campaign for the presidency. Well if the Pew numbers are any indication, this “master politician” may have once again, as with ObamaCare, misread his mandate and the public mood. For a growing number of Americans, as recent elections have shown, November can’t come soon enough.
Are You Substituting Worst-Case Thinking for Reason?
Bruce Schneier has a typically good essay on the use of “worst-cases” as a substitute for real analysis. I noticed conspicuous use of “worst-case” in early reporting on the oil spill in the Gulf. It conveniently gins up attention for media outlets keen on getting audience.
There’s a certain blindness that comes from worst-case thinking. An extension of the precautionary principle, it involves imagining the worst possible outcome and then acting as if it were a certainty. It substitutes imagination for thinking, speculation for risk analysis and fear for reason. It fosters powerlessness and vulnerability and magnifies social paralysis. And it makes us more vulnerable to the effects of terrorism.
Worst-case thinking—the failure to manage risk through analysis of costs and benefits—is what makes airline security such an expensive nightmare, for example. Schneier concludes:
When someone is proposing a change, the onus should be on them to justify it over the status quo. But worst case thinking is a way of looking at the world that exaggerates the rare and unusual and gives the rare much more credence than it deserves. It isn’t really a principle; it’s a cheap trick to justify what you already believe. It lets lazy or biased people make what seem to be cogent arguments without understanding the whole issue.
It’s not too long for you to read the whole thing.
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