Thursday, June 28, 2012

The Issue of the Day - Updated

(Update at the end.)

With the Obamacare ruling expected in a few hours, here's my in-before-the-deadline thoughts on the individual mandate. Not being a constitutional lawyer myself, as far as I can tell there are three clauses in the US Constitution that might make the individual mandate constitutional. The first and most easily dismissed is the Commerce Clause; second is the Necessary and Proper Clause; third, with the most relevance, is the Tax and Spending Clause.

The Commerce Clause allows Congress to regulate interstate commerce. If that is taken to mean actual interstate commerce, the Commerce Clause would be completely irrelevant here. Almost every state specifically prohibits its residents from purchasing out-of-state health insurance. There is no interstate health insurance market, and that is a direct, deliberate result of government policy. How then, can Congress regulate interstate commerce that doesn't even exist? Interstate commerce doesn't mean that lots of states have their own intrastate commerce. Interstate commerce has to be between states, which for most states is specifically forbidden when it comes to health insurance. At best, the Commerce Clause might allow a health insurance mandate for the three states (RI, WY, GA) that allow out-of-state insurance. Now, I haven't seen any legal expert even mention what I'm talking about, so maybe there's a really awesome legal argument for why I'm wrong. But until I find out what that is, this just seems like common sense to me.

The Necessary and Proper Clause allows Congress to do things that aren't authorized elsewhere, but that are necessary and proper to do things that are authorized elsewhere. The problem is, you won't find "health insurance" in Congress' enumerated powers. Lots of people say it's included in the Commerce Clause (see above), and I suppose it might be counted under "general welfare." But that seems like a stretch to me. Even if the public health is included in "general welfare," when you get to the point of mandating individual citizens to buy specific products from private parties, you've gone way beyond either public health or general welfare.

Even if health insurance is included under "general welfare," it's not clear to me that the individual mandate is either necessary or proper. I understand that the mandate is necessary to prevent the insurance industry from collapsing under the weight of the rest of Obamacare, but that hardly seems like a proper use of the word necessary. That's like me holding Hank's head under water, and then saying it's necessary for you to go buy scuba gear for Hank so he doesn't drown. Giving Congress extra powers to undo damage caused by exercising their other powers just seems like a bad idea to me-- the phrase perverse incentives comes to mind.

The Tax and Spending Clause allows Congress to basically tax whatever they want, as long as it applies equally throughout the country. If the individual mandate is a tax, I think it would pretty clearly be constitutional via the Tax and Spending Clause. The federal government has all kinds of taxes and credits and deductions for very specific, very personal individual behaviors, like buying a house or having a kid or giving to a list of federally-approved charities. I can't see how these would be allowed but health insurance wouldn't be.

In legal circles, the big debate is whether the mandate actually is a tax (which is allowed) or a penalty (which isn't allowed). What's the real difference? There isn't one. Right now, the law explicitly calls the mandate a "penalty," but every instance of "penalty" could be replaced with "tax" and the meaning would be no different. In fact, Congress did exactly that in the other direction-- early drafts called the mandate a tax, but the final law calls the same mandate a penalty. They do exactly the same thing. So why is one constitutional and the other not? As far as I can tell, because constitutional law is stupid. That link makes it a bit difficult to end on that note, but I really don't have a better explanation. 

I have no idea how the Supreme Court will actually rule in a few hours, nor is this an attempt to guess, or to sort out the legal arguments. This is just my attempt at a common sense approach to the Constitution, which is admittedly something even the Founders never intended. I may be way off-base, but based on my interpretation, the individual mandate cannot be justified under the Commerce Clause or the Necessary and Proper Clause. It probably can be justified under the Tax and Spending Clause, and even if it can't, it could be with a nearly-identical law that does the same thing but explicitly calls it a tax instead of a penalty.

The full text of the ruling (193 pages) is here in PDF form. It looks like the Court agreed with me that the Commerce and Necessary & Proper Clauses do not allow an individual mandate, although for different reasons than mine. I was apparently wrong that the mandate would be unconstitutional if you called it a penalty but constitutional if you called it a tax-- constitutional law is more internally consistent (ie less stupid) than I thought. At the same time, Roberts and the four liberal justices ruled that the mandate is not a tax for purposes of the Anti-Injunction Act (ruling otherwise would have prevented the Court from even considering the case), while it is a tax for purposes of the Tax & Spending Clause. In other words, constitutional law is both more and less internally consistent than I thought. (Decide for yourself how that impacts my own internal consistency.)

I still think the individual mandate is a horrible policy, even if it is constitutional. I sincerely hope we can repeal it in 2013. I'm encouraged that individual mandates are not constitutional under the Commerce or Necessary & Proper Clauses; to be passed, they must now be passed as taxes, which will be more politically difficult. The libertarian in me also hopes that this prompts the nation into taking a good, hard look at our tax code and the wide-ranging tax powers our government has. Maybe it's time for a constitutional amendment restricting Congress' tax power.

Sunday, June 24, 2012

Recent Reasons for Optimism V

The latest installment of recent reasons for optimism was a bit delayed on account of this being the tenth day of a ten-day workweek for me. But that doesn't mean there was any less good news! There's been lots of good news in health, but there's also reasons for optimism on the economy, civil liberties and even the threat of asteroid impact.


1. First the bad news-- the cytomegalovirus (CMV) infects 50-80% of people in the US, UK and Australia, and decreases life expectancy as much as smoking or drinking because of its unique effects on the immune system. Now the good news-- researchers at the University of Birmingham are working on an antiviral drug to reverse CMV's effects, potentially adding years to life expectancy. The drug has shown promise in mice, and tests on humans will begin soon. Finally, the great news-- researchers at the University of Connecticut at Farmington have genetically modified CMV to take advantage of what it does to the immune system. The result is a self-reinforcing cancer vaccine. In a study on mice, an untreated control group died of cancer within 23 days; the CMV-treated group lived for the entire length of the study.

2. A new breathalyzer can detect some kinds of cancer on your breath (ht Jason Silva). Although currently less accurate than more complicated tests, it's also far less costly, and could provide cancer screening to the poor around the world who can't afford current tests.

3. One more on cancer: Researchers have developed a patch (that looks very much like the birth control patch) that completely eliminated a certain kind of skin cancer after wearing it just three times, for three hours each. It was a very small trial, with just ten patients, but three months later the cancer was still gone from all ten patients, and after six months, there was no cancer in eight out of ten patients.

4. In Sweden, doctors have successfully transplanted a vein into a 10-year-old girl without the use of immunosuppressive drugs. They accomplished the feat by removing all of the donor's cells from the vein and replacing them with the girl's own stem cells.

Cyborgs and Robotics

5. We're one step closer to brain implants, as a team from MIT has invented a fuel cell to convert glucose in the brain into electricity that can be used by implants or prosthetics. (ht MR)

6. Picking up different kinds of objects is difficult and expensive for robots, especially when the shape of the object may not be known in advance. In an amazing example of the simplicity of innovation, a team at Cornell has found a solution using a balloon and ground coffee.


7. I've mentioned before on this blog that world income is higher than ever before and steadily increasing. Matt Ridley shares a graph showing that not only is world income higher, it's also more equitable.

8. Great news for free-traders: Both Mexico and Canada have now joined the Trans-Pacific Partnership (TPP) negotiations. The TPP, originally an agreement between New Zealand, Chile, Brunei and Singapore, is now being expanded to include the three NAFTA countries, the US, Canada and Mexico, as well as Japan, Australia, Peru, Vietnam and Malaysia. If an agreement is reached between all these countries, the TPP would become the largest free trade area in the world, comprising a full third of world GDP.

Civil Liberties and Crime

9. The Canadian government has backed down from their plan to record private conversations at border crossings and airports. What makes this even more encouraging is that this rapid about-face came in a non-election year, with the Conservatives' majority solidly in place until 2015. And it may not be just the Canadian government-- the US Department of State has withdrawn a request for bids to develop a system to monitor social media.

10. New Yorkers are striking back against that city's "stop and frisk" policy with a new app that allows New Yorkers to easily record and share video of police encounters and report them to the NYCLU. This is a small example of advancing technology being used to protect civil liberties.

11. Crime is down across-the-board. Violent crime fell by 4% from 2010 to 2011, the fifth year in a row it's fallen. That's true across the country, with every region except the Northeast seeing a drop of 4.5% or more. Property crimes were also down for the ninth year in a row, down 0.8% from 2010.

Everything Else

12. NASA scientists say there is little to no threat of a civilization-ending asteroid strike. Lindley Johnson of the Near Earth Object Observation Program says, "We know everything out there that is that big, and there is just nothing right now that's in an orbit that's any threat toward the Earth."

13. Ed Krayewski at Reason lists the "top 5 pieces of good news in the bad news." Some of his reasoning is a bit strained, but it's nevertheless an interesting list.

14. For even more optimism, check out these "21 Pictures That Will Restore Your Faith in Humanity." Among the obligatory pictures of people rescuing animals, there's a Subway restaurant giving free food to the homeless, a dry cleaner's offering free cleaning for the unemployed for job interviews, and the story of the Japanese seniors who volunteered to clean the radiation at Fukushima so the young wouldn't have to.

Thursday, June 14, 2012

The Beginning is Near

From Jason Silva, The Beginning of Infinity (ht Singularity Hub):

"I am very much an optimist. I'm reminded of Rich Doyle's line from Darwin's Pharmacy. He says, 'Dreams do not lack reality. They are real patterns of information.' Or the Imaginary Foundation says that the role of human imagination is to conceive of all these delightful futures and choose the most amazing, exciting and ecstatic possibility and then pull the present forward to meet it.

"That is what we do. We bring our imaginings into existence. But I think that as technology has advanced, we have found ways to outsource our mental capacities to our tools so much more. Our ability to manipulate the physical world has increased in an exponential fashion, so we've been able to shrink the lag time between our imaginings and their instantiation in the real world.

"David Deutsch speaks in his new book The Beginning of Infinity, he says, "If you look at the topography of the island of Manhattan today, that topography is a topography in which the forces of economics and culture and human intent have trumped the forces of geology." I mean, the topography of Manhattan today is no longer shaped by mere geology; it's shaped by the human mind and by economics and by culture.

"So what David Deutsch extrapolates is that ultimately that will be the fate of the whole universe. He says gravitation and antimatter might only shape the universe at its earliest and least-interesting stages, but eventually, the whole entire thing will be subject to the intent of substrate-independent, infinitely-more-powerful minds.

"And to conceive of that just... It just makes me feel ecstatic."

There's far more from Jason Silva here.

Tuesday, June 12, 2012

Recent Reasons for Optimism IV: A New Hope

1. Robin Hanson tackles general pessimism about the future with a comparison to modern high-rise apartments.

2. The New York Times (ht MR) has a list of 32 innovations, some minor, some major, that could change the world in the near future. The innovations range from better-tasting coffee to biosensors in your underwear and on your teeth to synthetic, hangover-free alcohol.

3. The New York Times also examines the "commercial ecosystem" created by the Kinect and Kinect hackers. As I've mentioned before, the Kinect is one of the best recent examples of the Matt Ridley quote on the sidebar here: "The more we prosper, the more we can prosper. The more we invent, the more inventions become possible. The world of things is often subject to diminishing returns. The world of ideas is not."

4. We keep inching closer to a cure for cancer. Some new treatments are able to target cancer cells more directly, while others encourage the immune system to attack the cancer itself.

5. We're also inching closer to driverless cars and the benefits they would bring. A Korean company, Chumdancha, has released several videos of their car driving down a busy highway with the human in the backseat, although it doesn't seem to be as advanced as Google's yet. Also check out this video (ht Driverless Car HQ) from the University of Texas at Austin illustrating "autonomous intersection management." When crossing an intersection no longer relies on human reaction times, we'll never have to wait at traffic lights again. Starting at about 0:51 in the embedded video, you can see their simulation of what that might look like. (I hope driverless cars come with tinted windows!)

6. Moore's Law is a little more secure now. With electronic computers projected to hit up against hard physical limitations within a decade or so, quantum computers have taken a step closer to replacing electronics. A collaboration including Simon Fraser University was able to keep qubits embedded in silicon stable for over three minutes. That shatters the previous record of just a few seconds and opens the door to hybrid electronic-quantum computers.

7. Those with leprosy will be cured, but also, burn victims. A three-year-old South African girl is recovering from severe burns to more than 80% of her body thanks to new skin grafts cloned from her own skin in Boston, then flown to her hospital in Johannesburg. This story highlights not only the great potential of cloning technologies for medical use, but the increasingly globalized scope of medical care.

8. Need even more optimism? Joshua at PostLibertarian has five more reasons for optimism.

Monday, June 11, 2012

Music Monday: I Smile

As this week starts off, here's a fun, uplifting song, ht LoopyLoo305. The actual song starts at about the 1:50 mark.

Friday, June 8, 2012

Romney, Obama and the Big Diversion

Apparently, Romney's latest talking point is that Obama "knowingly" slowed the economic recovery by focusing on passing health care reform rather than improving the economy. Sigh. Never mind whether this is true or not. If you believe half the rhetoric that comes out of the Romney camp on what should be done about the economy, you should be happy that Obama set his sights on health care instead!

Look at what Obama did when he actually was focused on the economy. There were the auto and bank bailouts, then the $800 billion "stimulus" that ended up as mostly just a bailout for state and local governments. Then there was Cash for Clunkers. Once health care reform was done, there was Dodd-Frank, plus talk of a second stimulus that never got anywhere. And since 2010, Obama's economic plan has primarily consisted of taxing the rich and insisting the stimulus worked.

To be fair, part of that stimulus included tax cuts, and there is the payroll tax cut. I suppose it's possible that, if Obama had focused on the economy instead of health care, he would have passed more tax cuts instead of more spending, more bailouts, pushing Dodd-Frank through a few months earlier or even raising taxes. It's possible, sure, if you believe it. But the reality is, if Obama actually had focused on the economy more, we just would have seen more of the same policies that conservatives never wanted in the first place. If you believe conservative ideas are what the economy really needs to recover, you should be happy Obama got distracted by health care!

Is this a sign that Romney doesn't really believe conservative ideas are what the economy needs? Perhaps, but that's probably reading too much into it. More likely, Romney is just appealing to the old idea that government should just do something, no matter what it is, and that being seen to be doing something is more important than what you're actually doing. Romney sees an opportunity to attack Obama for looking like he didn't do enough, even though what he would have done would have made things worse. Hopefully Romney loses that old idea before he moves into the White House and starts to actually govern.

Thursday, June 7, 2012

Do you have change for used gum?

Earlier today, I happened to be thinking about microtransactions-- transactions of extremely small amounts of value, on the order of a few cents or even less than a cent. In a way, microtransactions represent a form of market failure (related to transactions costs). The value of the microtransaction is often so low that the cost of setting up the transaction prevents it from happening at all, even though both sides would be better off. However, part of this failure stems not from markets, but from the nature of our currency-- you can't make change for less than a penny, unless you're operating entirely digitally.

I had a bit of personal synchronicity on reading tomorrow's Dilbert. It turns out that Dilbert, one of the greatest popular examples of homo economicus, has already solved the microtransaction problem by switching to an alternative currency system*, one that has also been adopted by Tina the Tech Writer.

*I'm assuming it's an actual alternative currency system rather than barter, since the value of used gum vis-à-vis lint or bent staples seems to already have been established.

Monday, June 4, 2012

Recent Reasons for Optimism Reloaded

I know "Reloaded" was the second movie, and this is my third Recent Reasons for Optimism entry, but... yeah, I don't have a good reason, so on to the optimism! Space news dominated the week, but there are also reasons to be optimistic about agriculture, health and the economy.

1. For starters, Joshua at PostLibertarian has his own list of reasons for optimism, including SpaceX's success with the Falcon 9, Cubify's new 3D printer and the lowering of legal hurdles for driverless cars. Also check out his previous reasons for optimism, including lower child mortality and improving technologies, among others.

2 Speaking of space, SpaceX has also just signed their first commercial contract for the Falcon Heavy rocket. The Falcon Heavy is basically three Falcon 9's strapped together. When completed, it will be able to take 58.5 tons into orbit, more than double the shuttle's 26.8 tons at less than a quarter of the cost.

3. SpaceX isn't the only good news in space. A company in the UK has announced plans (ht One Per Cent) to launch nanosatellites that, once in orbit, can dock with each other in novel configurations. One of the benefits would be easier in-orbit upgrades to satellites equipped with the technology. In a perfect example of the Matt Ridley quote in the sidebar here, the nanosatellites would use Kinect cameras to sense each other and make docking possible. "The more we invent, the more inventions become possible."

4. Just one more about space: Virgin Galactic has been granted an FAA permit for the first rocket-powered tests of SpaceShipTwo, which will eventually carry tourists into space. They plan to begin those tests this year, with an eye to actual tourist flights starting in 2013-2014.

5. The Free Exchange blog at The Economist reviews two recent books, one painting a picture of an America in decline, the other the opposite. In blogger R.A.'s words, "To spin a story of decline, one has to demonstrate that policies are considerably worse than they used to be, and that they're unlikely to improve. It's actually quite difficult to do this." While there are looming problems, R.A. says, "these issues, and other worries as well, are not being ignored or greeted with complacency," and "American innovation is proving as impressive as ever."

6. Two studies covered at World Climate Report (ht @mattwridley) portend good news for crop yields. Increased atmospheric carbon dioxide helps rice out-compete weeds and encourages more photosynthesis in wheat. Higher temperatures also improve wheat water use efficiency. The scientists predicted that by 2050, global warming would raise wheat yields by about 5.8% in lower altitudes and more than 10% in higher altitudes.

7. A ten-year-old girl, Sammie Hicks, was until recently only able to hear with a hearing aid. In April, she was given a cochlear implant and recorded for Youtube the moment it was finally turned on in May. She jumps as the sounds come in, and adjusts to hearing herself breathe for the first time. In the video, she starts crying, and later said, "It was overwhelming. But the reason I really cried? I couldn’t believe all the stuff I was missing." In a later video, she talks about hearing pencils writing at school, and the wind on her way home.

8. Paralyzed rats with "severe spinal injuries" were effectively cured of their paralysis, regaining the ability to walk after 2-3 weeks and achieving "100% recuperation" after 5-6 weeks of treatment, including a special stimulating device and the ratty equivalent of physical therapy. A similar treatment for humans could be available within just a year or two.

9. The plural of anecdotes is not data. However, anecdotally, in my little corner of the world, the economy seems to be improving. People I know who have been unemployed, some for a very long time, over the last few weeks have been finding jobs. Walking down the street this past week, I've seen "Now Hiring" signs in the windows of local businesses. There are fresh faces working at businesses I frequent, and even the local mall is expanding.

10. With Friday's disappointing employment numbers from the establishment survey, you'd be forgiven for thinking the economic data is all doom and gloom. However, the household survey told a different story. While the establishment survey measured only 69k new jobs, the more-accurate household survey picked up 422k.  Even the establishment survey looks better when you look at the private sector, which is where we want the growth to happen anyway. And while the unemployment rate ticked up from 8.1% to 8.2%, this was because the labor force grew by 642k as the long-term non-employed start looking for work again. That's not a bad thing!

11. Finally, a note on optimism itself. The CultureLab blog at New Scientist interviews Elaine Fox, author of the book Rainy Brain, Sunny Brain. Fox believes that we can retrain our brains to become more optimistic. She also cites research on the benefits of optimism, saying, "The research shows that, as long as they are realists too, people who have an optimistic mindset and feel like they are able to cope when things do go wrong benefit in all sorts of ways. The evidence is also quite strong now that an optimistic mindset is beneficial for our health. People with optimistic mindsets are also more successful in business, and seem to live longer."