Archive for May, 2011
‘Mandate’ Mitt’s Candidacy May Be the Biggest Obstacle to Repealing ObamaCare
When Republican presidential hopeful Mitt Romney delivers his health care speech today, the question on everyone’s mind will be whether and how he will try to square his support for repealing President Obama’s government takeover of health care with the fact that he imposed an identical government takeover on Massachusetts when he was that state’s governor in 2006. The answer is: he can’t.
Romney bears as much responsibility for ObamaCare as any Democrat, and all the Republican health policy boilerplate in the world won’t change that fact. The Washington Post has unearthed an interview where Romney fantasized about “a nation that’s taken a mandate approach.” If “Mandate Mitt” once again clings to his untenable position that RomneyCare is good but ObamaCare is bad, he will reinforce the perception that he has no principles and will say anything to get elected. But admitting that RomneyCare was a mistake would also reinforce that perception — he was for RomneyCare, before he was against it.
If Mandate Mitt finally chooses the latter course, he will finally make the below video moot. So, I’ll post it in the hope that this will be my last opportunity to do so:
If Republicans pick Romney as their standard-bearer, they will be choosing someone who, as the Wall Street Journal editorializes, is either a leftist on health care, too clueless to realize the Left played him for a fool, or so unprincipled that he doesn’t care. The Obama campaign would like nothing more. The attack ads write themselves. Romney would become a laughingstock — if he isn’t already — and would drag the ObamaCare-repeal effort down with him.
If Romney really wants to repeal ObamaCare, here is the best that a man in his compromised position can do. First, don’t just apologize. Explain why RomneyCare was a mistake: it relies on government planning to allocate health care resources, which will make health care more costly and scarce. Second: encourage the state officials whose campaigns he is supporting not to create any type of health insurance Exchange — neither the kind he created in Massachusetts, nor the kind Gov. Jim Huntsman (R) created in Utah — because creating any Exchange is a vote to preserve ObamaCare. Third, announce that instead of running for president, he will run for governor of Massachusetts on a “repeal RomneyCare” platform. He’s just the man to do it.
Cato’s Latest Obamacare Brief
As I noted yesterday, Obamacare is moving towards its inevitable date with the Supreme Court. Although the pace may be aggravating, attorneys on both sides are strengthening their arguments and clarifying the issues presented.
Cato’s latest brief, filed today in the Eleventh Circuit in support of 26 states and the National Federation of Independent Business, sharpens the position we already expressed in briefs filed in the Fourth Circuit and the Sixth Circuit. Our focus remains the question of whether the Constitution authorizes Congress to mandate that individuals purchase health insurance or suffer a fine.
The government has subtly shifted its thinking at this stage, however, to argue that the individual mandate does not so much compel “inactive” citizens to act but merely regulates when and how health care is purchased. Everyone will eventually purchase health care, the argument goes, and the mandate requires that people pre-pay for that care so they don’t shift the costs onto others.
We point out how this argument is a spurious misdirection, an attempt to recharacterize the individual mandate in terms that are directly contrary to the purpose and function of the overall statute. Obamacare explicitly regulates the status of being uninsured—and not just those who seek to shift health care costs to the future or slough them onto taxpayers (indeed, the politically uncomfortable truth is that those most likely to incur health care expenses they cannot pay, the poor, are exempt from the mandate).
We argue that, regardless of the spin that the government places on it, the individual mandate “regulates” inactivity, something that not even modern constitutional doctrine allows. The status of being uninsured cannot be transformed into economic activity via semantic prestidigitation; no matter how artfully articulated, a decision not to purchase insurance, or to do nothing, or to self-insure, is not a federally regulable action. The outermost bounds of Congress’s power under the Commerce Clause, as exercised via the Necessary and Proper Clause, reach certain classes of intrastate economic activity that substantially affects interstate commerce. But Congress cannot reach inactivity even if it purports to act pursuant to a broader regulatory scheme.
Allowing Congress to conscript citizens into economic transactions would not only be unprecedented—as government-friendly the precedent is—but would fundamentally alter the relationship between the sovereign people and their supposed “public servants.” The individual mandate “commandeers the people” into the federal government’s brave new health care world.
The Eleventh Circuit will hear Florida v. U.S. Dep’t of Health & Human Services in Atlanta on June 8.
The King’s Speech
His Royal Highness Prince Charles, who lives, well, like a king, off wealth that his ancestors stole, appears at a Washington Post conference to tell his still-recalcitrant former subjects to change their economic system. As befitting a hereditary aristocrat, coming from a long line of people used to issuing orders, with little interest in spontaneous order or actual economic growth, he finds an
urgent need for . . . the willingness of all aspects of society — the public, private and NGO [non-governmental organizations] sectors, large corporations and small organizations — to work together to build an economic model built upon resilience and diversity.
Sure thing, guv’nor, we’ll get right on that.
High-Speed Rail and Federalism
Florida Governor Rick Scott deserves a big round of applause for dealing a major setback to the Obama administration’s costly plan for a national system of high-speed rail. As Randal O’Toole explains, the administration needed Florida to keep the $2.4 billion it was awarded to build a high-speed Orlando-to-Tampa line in order to build “momentum” for its plan. Instead, Scott put the interests of his taxpayers first and told the administration “no thanks.”
That’s the good news.
The bad news is that the administration is going to dole the money back out to 22 passenger-rail projects in other states. Florida taxpayers were spared their state’s share of maintaining the line, but they’re still going to be forced to help foot the bill for passenger-rail projects in other states.
Here’s Randal’s summary:
Instead, the Department of Transportation gave nearly $1 billion of the $2.4 billion to Amtrak and states in the Northeast Corridor to replace worn out infrastructure and slightly speed up trains in that corridor, as well as connecting routes such as New Haven to Hartford and New York to Albany. Most of the rest of the money went to Midwestern states—Illinois, Iowa, Minnesota, Michigan, and Missouri—to buy new trains, improve stations, and do engineering studies of a few corridors such as the vital Minneapolis-to-Duluth corridor. Trains going an average of 57 mph instead of 52 mph are not going to inspire the public to spend $53 billion more on high-speed rail.
The administration did give California $300 million for its high-speed rail program. But, with that grant, the state still has only about 10 percent of the $65 billion estimated cost of a San Francisco-to-Los Angeles line, and there is no more money in the till. If the $300 million is ever spent, it will be for a 220-mph train to nowhere in California’s Central Valley.
Why should Floridians be taxed by the federal government to pay for passenger-rail in the northeast? If the states in the Northeast Corridor want to pick up the subsidy tab from the federal government, go for it. (I argue in a Cato essay on Amtrak that if the Northeast Corridor possesses the population density to support passenger-rail then it should just be privatized.)
I don’t know if taxpayers in Northeast Corridor would want to pick up the federal government’s share of the subsidies, but I’m pretty sure California taxpayers wouldn’t be interested in footing the entire $65 billion for their state’s high-speed boondoggle-in-the-works. As I’ve discussed before, the agitators for a national system of high-speed rail know this:
If California’s beleaguered taxpayers were asked to bear the full cost of financing HSR in their state, they would likely reject it. High-speed rail proponents know this, which is why they agitate to foist a big chunk of the burden onto federal taxpayers. The proponents pretend that HSR rail is in “the national interest,” but as a Cato essay on high-speed rail explains, “high-speed rail would not likely capture more than about 1 percent of the nation’s market for passenger travel.”
According to the Wall Street Journal, congressional Republicans aren’t happy that the administration is taking Florida’s money and spreading it around the country:
Monday’s announcement drew criticism from House Republican leaders, who questioned both the decision to divide the money into nearly two-dozen grants around the country—instead of concentrating it into fewer major projects—and the fact that many of the projects will benefit Amtrak, the federally subsidized passenger-rail operator.
I heartily agree with the Amtrak complaint, but I’m not sure why as a federal taxpayer I should feel better about instead “concentrating [the money] into fewer major projects.” Subsidizing passenger-rail is no more a proper role of the federal government than education or housing. Unfortunately, for all the criticisms of the Obama administrations and the constant talk about spending cuts, Republicans don’t appear to possess much more desire to limit the scope of the federal government’s activities than the Democrats.
See this Cato essay for more on fiscal federalism.
Distortions versus Outlays
My friend Gawain Kripke at Oxfam posted a very good blog entry yesterday on the proposed cuts to agriculture subsidies. In it, Gawain elaborates on a point that I made briefly in a previous post about Rep. Paul Ryan’s 2012 budget plan: that cutting so-called direct payments—those that flow to farmers regardless of how much or even whether they produce—is only part of the picture.
Here’s Gawain’s main point:
Most farm subsidies are price-dependent, meaning they are bigger if prices are low and smaller if prices are high. Prices are hitting historic highs for many commodities, which means the bulk of these subsidies are not paying out very much money. Over time, the price-dependent subsidies have been the bulk of farm subsidies. They also distort agriculture markets by encouraging farmers to depend on payments from the government rather managing their business and hedging risks.
So—these days there’s only about $5b in farm payments being made, and these payments are not considered as damaging in international trade terms because they are not based on prices…
Still, Congress will probably make some cuts. But these cuts won’t really be reform and won’t produce much long-term savings unless they tackle the price-dependent subsidies. Taking a whack at those subsidies could save taxpayers money later and make sure our farm programs don’t hurt poor farmers in developing countries. (emphasis added)
I will be delighted if direct payments are abolished, thereby saving American taxpayers about $5 billion a year. But we should not be content with that, nor should we fool ourselves that we have tackled the main distortions in agricultural markets. If the price- and production-linked programs are not abolished, too, then taxpayers and international markets will pay the price if/when commodity prices fall.
A Ban on Farm-Filming?
Animal-welfare activists have scored much publicity success by releasing hidden-camera videos that they say document the mistreatment of animals at farms and slaughterhouses. Now, at the behest of farm interests, lawmakers in Iowa, Florida, and Minnesota are proposing laws seeking to criminalize the making and even possession of such videos. According to the New York Times, the Iowa bill, which has passed the lower house of the legislature in Des Moines:
would make it a crime to produce, distribute or possess photos and video taken without permission at an agricultural facility. It would also criminalize lying on an application to work at an agriculture facility “with an intent to commit an act not authorized by the owner.”
From a libertarian perspective, there’s so much wrong with these bills that it’s hard to know where to begin. Maybe with the bills’ ridiculous overbreadth and over-punitiveness—the Florida proposal, for example, apparently would ban even roadside photography of farms, and send offenders to prison for as much as thirty years. In proposing a (very likely unconstitutional) ban on even the possession of improperly produced videos, the Iowa bill, ironically or otherwise, echoes the tireless legislative efforts of some animal rights activists over the years to ban even possession of videos depicting dogfights and other instances of animal cruelty, for example.
The fact is that we already criminalize too much photo-taking. Depending on where you live, it may be unlawful to snap photos in a busy transit hub, or videotape the police officer who’s conducting an arrest; New Jersey is now considering a law that could ban much picture-taking of children in public places. To be sure, farmers and food processors also have rights deserving of respect, but the core of those rights should be the right to post a notice of “No photography on premises” and then seek civil (as distinct from criminal, in the absence of forcible entry) remedies against visitors or employees who ignore it.
Relatedly, the New York Times invited me to join a “Room for Debate” discussion today on farm animal welfare and my contribution is here. My suggestions that the federal government leave the issue to the states, and that the development of a market in more expensive but humanely raised meat is to be welcomed, brought down predictable outrage from some readers, whose comments included, “The ‘free-market’ litany is a lying crock” and, “It would be a very good thing if meat became unaffordable to most ordinary people.”
Not so relatedly, I am happy to report that the Environmental Protection Agency has finally backed off its position that dairy farmers must build elaborate containment structures to guard against milk spills on the theory that—milk containing butterfat and all—those mishaps should be legally construed as “oil spills.” I had criticized the agency’s interpretation here and here.
Obama Admin. Repeats Discredited Cost-Shifting Claim in Federal Court
Defending ObamaCare in federal court yesterday, the Obama administration’s acting solicitor general, Neal K. Katyal, peddled the widely discredited claim that the uninsured increase your and my health insurance premiums by $1,000:
“When people self-finance their health care,” Katyal contended, “that raises the cost of health care overall by $43 billion a year, and that raises the average family’s premiums by $1,000 a year. That will price untold numbers of people out of the market.”
That estimate comes from two left-wing groups, Families USA and the Center for American Progress Action Fund.
When President Obama himself made this claim, FactCheck.org reported:
[Obama] said ”the average family pays a thousand dollars in extra premiums to pay for people going to the emergency room who don’t have health insurance.” That’s from a recent report by Families USA, a group that lobbies for expanded government coverage. But another study for the authoritative Kaiser Family Foundation thinks that figure is far too high.
Serendipitously, the same day that Kaytal was repeating this discredited claim in federal court, USA Today reported:
Jack Hadley, senior health services researcher at George Mason University in Fairfax, Va…has found that privately insured individuals don’t end up paying higher premiums to make up for the uninsured because hospitals that serve lower-income families don’t have a lot of patients with insurance. He said the government pays about 75% of those unpaid hospital bills either by direct payment or through a disproportionate payment of Medicaid. (emphasis added)
Filed under: Cato Publications; General; Government and Politics; Health Care
Michelle Rhee Endorses Private School Choice…Sort of
Former DC Schools Chancellor Michelle Rhee declares in a new op-ed that she endorses private school choice for low-income families, but adds: “I’m not for school choice for its own sake. I am for choice because it can, directly and indirectly, provide better opportunities for low-income children—not simply more opportunities.”
I’m not sure I understand her. Is Rhee saying that given two alternatives: one in which parents have many different educational choices and one in which they don’t, she inherently prefers the option that gives parents no choice if test scores are not impacted either way? Why not prefer choice for its own sake, as well as for its academic benefits?
Rhee then goes on to say that private schools receiving government funding should be under government oversight, and be required to do such things as administer standardized tests in order to ensure “accountability.” But isn’t this precisely the sort of “accountability” to which state-run schools are already subjected in minute detail, and which has coincided with stagnation or decline in academic achievement for two generations (depending on the subject) and a catastrophic productivity collapse? It’s worth noting that it is the freest, least regulated, most market-like education systems that consistently produce the most effective, efficient schools.
It’s a short op-ed, providing little room for Rhee to explain how she came to hold the particular policy views she espouses regarding private school choice. It will be interesting to learn more.
Wednesday Links
- On immigration, the president offers mostly nice words, not much else.
- The debate about the debt ceiling is important—take the time to get it right.
- When it comes to defense appropriations, it is worth keeping in mind that restraining ambition is the first step in sensibly trimming military spending.
- There is no empirical evidence that national standards improve educational outcomes.
- The tax code is not an appropriate tool for social engineering, despite bipartisan attempts to use it for that purpose.
Law Professors against “Tyrannophobia”
Over at the American Conservative, I have a review of Eric Posner and Adrian Vermuele’s new book Executive Unbound: After the Madisonian Republic. Funny enough, the working title for my book on presidential power was “Executive Unbound,” but P&V have a very different take on the dangers of concentrating power in the executive (they coin the term “tyrannophobia,” for irrational fear of executive abuse).
From the review’s intro:
The New York Times book editors assigned their review to the Straussian political philosopher Harvey Mansfield, the self-styled expert on “manliness” who’s as rabid a supporter of the imperial presidency as you’re likely to find. In the late Bush era, Mansfield wrote a 3,000-word Wall Street Journal op-ed, “The Case for the Strong Executive,” arguing that defects in the rule of law ‘‘suggest the need for one-man rule.”
Yet even Mansfield blanched at Executive Unbound’s case for unbridled presidential power. He began his review by noting indignantly, “Eric A. Posner and Adrian Vermeule, law professors at Chicago and Harvard, respectively, offer with somewhat alarming confidence the ‘Weimar and Nazi jurist’ Carl Schmitt as their candidate to succeed James Madison for the honor of theorist of the Constitution.”
Gott im Himmel! A book that embraces a leading “Nazi jurist,” applauds the American presidency’s liberation from law, and is apparently hardcore enough to scare manly Harvey Mansfield? What sort of work is Executive Unbound? A Satanic Bible for worshippers of the strong presidency? The black-metal version of John Yoo?
As I dug into the book—while Tomahawk missiles rained down on Libya in yet another unauthorized presidential war—that’s what I was expecting. But Posner and Vermuele have produced something very different and, quite to my surprise, I liked it.
You can read the rest here.
“Let Them [Safety Certified Mexican] Truckers Roll, 10-4”
OK, I took some editorial license on the line from the 1970s song by C.W. McCall about truckers bantering on their CB radios, but the spirit of the song applies to our ongoing dispute with Mexico over access to U.S. highways.
On Friday, the comment period will end in the Federal Register on a pilot program proposed by the Obama administration that would allow qualified Mexican trucks and their Mexican drivers to make long-haul deliveries within the United States. With the exception of a brief interlude from 2007 to 2009, the U.S. has banned Mexican trucks from serving destinations within the United States.
I explain why this is bad for our economy and our reputation as a nation in an op-ed this morning in the Washington Times and in my own comments filed with the Federal Register. As I wrote in the op-ed:
Despite the hundreds of complaints already posted in the Federal Register, the Mexican trucking issue has never been about safety. The proposed pilot program would require Mexican trucks entering the United States to meet all federal regulations on driver qualifications, truck safety, emissions, fuel taxes, immigration and insurance.
Experience from the previous pilot program in 2007-09 demonstrated that Mexican trucks and their drivers are fully capable of complying with all U.S. safety requirements.
An August 2009 report from the Department of Transportation’s Inspector General found that only 1.2 percent of Mexican drivers that were inspected were placed out of service for violations, compared with nearly 7 percent of U.S. drivers who were inspected. In February 2010, the Congressional Research Service reported that recent data provided by the Federal Motor Carrier Safety Administration found that “Mexican trucks are as safe as U.S. trucks and that the drivers are generally safer than U.S. drivers.” What the Teamsters and their congressional allies really object to is that these trucks will be driven by Mexicans.
The Obama administration deserves credit for its effort to end this dispute in the face of pressure from its union base. The sooner we allow more freedom and competition in the cross-border trucking sector, the better.
Two Cheers for Iraqi Nationalism
What Does This Mean? (Reuters/Ceerwan Aziz)
Today’s New York Times has a piece on the running discussion in Iraq about the prospect of U.S. military withdrawal from their country. As the article highlights, the discussion itself “reflects a nation still struggling with issues of sectarian identity, national pride, and how to secure its future.”
One of the few things former President Bush said about Iraq that I agreed with was his claim on Al Arabiya in 2005 that “the future of Iraq depends on Iraqi nationalism and the Iraq character—the character of Iraq and Iraqi people emerging.”
In general, I am not very fond of nationalism, but if you want to hold together a country of 25 million people, especially when they have been riven by decades of sectarian strife, a living-memory civil war, a variety of identity politics divides, and disputes over the rents from natural resources, you could probably use some. (Maybe we could find a way that a very diverse coalition of Iraqis could chase us out.)
As the article indicates, there are a range of views about the prospect of American withdrawal. One Iraqi remarks hopefully that “I prefer that the U.S. forces leave Iraq because then extremists wouldn’t have an excuse to carry guns.” A follower of Muqtada al-Sadr remarks that “Whatever [Sadr] says, we will do. We will keep on resisting until the last days of our lives.” An intellectual remarks that if American military forces leave, “the sectarian conflict between Iran and the rest of the Arab countries will seep into Iraq because the Iranians will try and make the Shiites more powerful and the Arab countries will support the Sunnis. This will lead to a sectarian war.”
Several of the Iraqis interviewed were profoundly cynical about American intentions, believing that the United States would try to stick around for various selfish reasons. At a time when political leaders like Sen. Lindsey Graham, Rep. John Boehner, and others are suggesting that we need to find a way to stay in their country, can you really blame the Iraqis for feeling a bit cynical?
Regardless, the future of Iraq will ultimately turn on whether Iraqis decide that there is such a thing as Iraq, and if so, whether they should identify strongly with it and be loyal to it. The fact that the jury is still out on those questions more than eight years after we changed the regime speaks volumes about the folly of the war in the first place.
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