(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.
Conclusion
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.
Update
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.
Showing posts with label federalism. Show all posts
Showing posts with label federalism. Show all posts
Thursday, June 28, 2012
Friday, May 11, 2012
Mitt Romney on Health Policy
This is the fourth in a series of entries revisiting Mitt
Romney's policies as stated in the debates. The first covered foreign
policy; the second
covered economic policy. The third covered the social issues
of religion, gay marriage, contraception, abortion, and guns. This entry covers health care, including Obamacare, Romneycare, Medicare, Medicaid and other health reform ideas.
Obamacare vs Romneycare:
Romney often highlighted differences between the Massachusetts health care reform commonly called "Romneycare" and the national Patient Protection and Affordable Care Act, commonly called "Obamacare." While he supported and throughout the debates continued to defend Romneycare, he opposed Obamacare to the extent that he promised to grant waivers to all 50 states on his first day in office and to press Congress for full repeal. Claimed differences include:
Medicare and Medicaid
As mentioned above, Romney often criticized Obamacare for cutting Medicare. In fact, almost every time Romney mentioned Medicare, it was either to criticize Obamacare for cutting it, or defending Romneycare for not cutting it.
Regarding actual reforms to Medicare, he wants a shift to a premium support model like the Ryan plan. He also favors means testing for Medicare, where the rich would receive lower benefits and everyone else would receive higher benefits. Finally, he would not repeal Medicare Part D.
He would send Medicaid to the states as a block grant and only allow it to grow at either 1-2% per year (in the 8th debate) or inflation-plus-one-percent (in the 10th debate). He never mentioned any other reform to Medicaid, but repeated this block grant plan in several debates.
Other Health Reforms
Individual Mandates: While Romney opposes Obamacare, including its national individual mandate, he often defended the individual mandate itself as a good policy to carry out on the state level. In the 3rd debate, he compared it to states' ability to require children to attend school. He sees individual mandates as ways to provide the uninsured with what he called in the 6th debate "market-based, private" insurance. In the 8th debate, he said about the individual mandate in Massachusetts, "A lot of people were expecting government to pay their way. And we said, you know what? If people have the capacity to care for themselves and pay their own way, they should." Romney disagrees with Obama on what level of government should impose the individual mandate, but he agrees that it's a good policy in the first place.
Health Savings Accounts: In the 5th debate, Romney said health care "isn't working like a market," but rather is "working like a government utility" because consumers are separated from the cost of health care. He advocated health savings accounts to fix this problem, mentioning HSAs in the 5th and 9th debates.
Employer-based Insurance: In the 9th debate, Romney said we should treat individually-purchased insurance the same as employer-purchased insurance in regards to the tax code. He also mentioned this in the 19th debate.
Tort Reform: In the 9th debate, he advocated tort reform as part of the package of reforms he would replace Obamacare with.
Health Issues Covered Elsewhere
Romney's positions on contraception and abortion were covered in the third entry in this series, on social issues. In addition to the section above, Obamacare was also covered in the second entry in the context of regulations and fiscal responsibility.
Obamacare vs Romneycare:
Romney often highlighted differences between the Massachusetts health care reform commonly called "Romneycare" and the national Patient Protection and Affordable Care Act, commonly called "Obamacare." While he supported and throughout the debates continued to defend Romneycare, he opposed Obamacare to the extent that he promised to grant waivers to all 50 states on his first day in office and to press Congress for full repeal. Claimed differences include:
- Obamacare raises taxes; Romneycare didn't
- Obamacare takes money from Medicare; Romneycare didn't
- Obamacare is a national program; Romneycare is a state program
- Similarly, Obamacare is unconstitutional for the national government; Romneycare is constitutional because it's at the state level
- Obamacare includes "a panel that ultimately is going to tell people what kind of care they can have," referring to the Independent Payment Advisory Board; Romneycare does not include such a panel
- Obamacare applies to 100% of the citizenry; Romneycare supposedly only addressed the 8-9% who were uninsured (he said 9% in the 5th debate, 8% in the 6th, 7th and 17th debates)
- Obamacare leads to regulations like the contraception mandate; Romneycare had a provision that people did not have to buy coverage for treatments or medical devices which violated their religious beliefs
- Obamacare was 2,700 pages long; Romneycare was 70 pages long
Medicare and Medicaid
As mentioned above, Romney often criticized Obamacare for cutting Medicare. In fact, almost every time Romney mentioned Medicare, it was either to criticize Obamacare for cutting it, or defending Romneycare for not cutting it.
Regarding actual reforms to Medicare, he wants a shift to a premium support model like the Ryan plan. He also favors means testing for Medicare, where the rich would receive lower benefits and everyone else would receive higher benefits. Finally, he would not repeal Medicare Part D.
He would send Medicaid to the states as a block grant and only allow it to grow at either 1-2% per year (in the 8th debate) or inflation-plus-one-percent (in the 10th debate). He never mentioned any other reform to Medicaid, but repeated this block grant plan in several debates.
Other Health Reforms
Individual Mandates: While Romney opposes Obamacare, including its national individual mandate, he often defended the individual mandate itself as a good policy to carry out on the state level. In the 3rd debate, he compared it to states' ability to require children to attend school. He sees individual mandates as ways to provide the uninsured with what he called in the 6th debate "market-based, private" insurance. In the 8th debate, he said about the individual mandate in Massachusetts, "A lot of people were expecting government to pay their way. And we said, you know what? If people have the capacity to care for themselves and pay their own way, they should." Romney disagrees with Obama on what level of government should impose the individual mandate, but he agrees that it's a good policy in the first place.
Health Savings Accounts: In the 5th debate, Romney said health care "isn't working like a market," but rather is "working like a government utility" because consumers are separated from the cost of health care. He advocated health savings accounts to fix this problem, mentioning HSAs in the 5th and 9th debates.
Employer-based Insurance: In the 9th debate, Romney said we should treat individually-purchased insurance the same as employer-purchased insurance in regards to the tax code. He also mentioned this in the 19th debate.
Tort Reform: In the 9th debate, he advocated tort reform as part of the package of reforms he would replace Obamacare with.
Health Issues Covered Elsewhere
Romney's positions on contraception and abortion were covered in the third entry in this series, on social issues. In addition to the section above, Obamacare was also covered in the second entry in the context of regulations and fiscal responsibility.
Wednesday, September 28, 2011
Online Polls from Sixth Debate
In the sixth Republican debate, held in Orlando, Florida, Fox News polled online viewers on a number of questions and then reported on three of the results during the debate. Those questions, the results and my own answers are below. The questions and results are based on the video of the debate here and the transcript here.
I define rich as someone having an annual income higher than:
I was surprised at the result here, with a full 44% of respondents saying someone with an annual income of $999,000 would not be rich. My answer was the lowest available, $100,000, and only 13% agreed with me. My reasoning is that US median individual income for 2010 was $26,197 (table P-7 here). Someone making $100,000 a year makes almost four times more than the median American. If that's not rich, I don't know what is.
If we're talking about households rather than individuals (as I assumed), I might have chosen $250,000, even though I think that's a bit high. For households, an income of $100,000 puts you in the second-highest quintile; the upper cut-off for the second-highest quintile is $100,065 (table H-1 here). I think being in the top-fifth of American households probably qualifies as being rich, so maybe the right answer is slightly higher than $100,000. Even so, the lower cut-off for the top 5% of American households is $180,810, so an annual income of $250,000 puts someone solidly into the top 5%. If that's not rich, once again, I don't know what is.
If you had to cut a government department, what would you cut?
This result wasn't surprising at all. The Department of Education is a huge target for both conservatives and libertarians. I think it could certainly use reform, but I'm not convinced that eliminating the Department entirely is the best way to reform education policy in this country. The same goes for the EPA. They've definitely overstepped their bounds of late, but regulating externalities like pollution is one of the core functions of government.
The Department of Labor could probably be recombined with Commerce, and I'm sure many of the regulations it enforces could be streamlined or eliminated with no ill effects. At the same time, a lot of its agencies perform necessary government functions, like the BLS and OSHA. I think at least some of the opposition to the Department of Labor comes from its name, which some see as synonymous with unions. I didn't realize this until writing this entry, but in fact, the National Labor Relations Board (which does probably deserve to be eliminated) is an independent agency, separate from the Department of Labor.
I voted to eliminate the Department of Housing and Urban Development. As the Department responsible for Fannie Mae and Freddie Mac, HUD has been possibly the most abject failure of any federal department over the last two decades. Even if it hadn't overseen the housing bubble, there's simply no reason that I can see that we need a federal housing policy, or a federal urban development policy. I don't know of anything the federal government does that is more local in nature than urban development. Even the name begs for the department to be localized.
What is the best way to fix immigration in the US?
The third answer read out loud during the debate was "deport all immigrants," which received 22% of the vote and was the second-place answer. I don't remember the exact wording of the options that night, but I hope that either the actual option read "deport all illegal immigrants" or that these 22% of people interpreted it that way. Conflating the illegal/legal immigration issues is something I expect from liberals, not conservatives.
My answer was to "create a path to citizenship," and 35% agreed with me, more than any other answer. However, a stronger fence and more border patrol agents go hand-in-hand, and it's hard to see someone supporting one of those while opposing the other. Combined, the "stronger border" options get 39% of the vote.
I support a path to citizenship out of practicality, although I would prefer to call it a "path to legality." Not everyone who comes to the US wants to stay permanently, and not everyone who stays permanently wants to become a citizen. Our immigration policy has to recognize that fact. But I do support some kind of path to legality for illegal immigrants already here because the other two options are simply impractical. With upwards of ten million illegals in the country, it is practically and fiscally impossible to deport them all. But leaving them alone and maintaining the status quo, where ten million people are in open disobedience of the law, is also impractical. It breeds contempt for the law and for America as a country, as evidenced by the 2006 protests. The only way forward is through some kind of path to legality.
The stronger fence and border patrol also won't work for practical reasons. The border is so porous already that sealing it would cost tens of billions of dollars at a time when we're already borrowing more than 40% of what we spend. Keeping the border sealed would cost tens of billions more. The only reason people immigrate illegally is because we've made it so difficult to immigrate legally. Get rid of the quotas and the waiting lists, and simplify the immigration process, and illegal immigration will fall dramatically overnight.
I define rich as someone having an annual income higher than:
If we're talking about households rather than individuals (as I assumed), I might have chosen $250,000, even though I think that's a bit high. For households, an income of $100,000 puts you in the second-highest quintile; the upper cut-off for the second-highest quintile is $100,065 (table H-1 here). I think being in the top-fifth of American households probably qualifies as being rich, so maybe the right answer is slightly higher than $100,000. Even so, the lower cut-off for the top 5% of American households is $180,810, so an annual income of $250,000 puts someone solidly into the top 5%. If that's not rich, once again, I don't know what is.
If you had to cut a government department, what would you cut?
The Department of Labor could probably be recombined with Commerce, and I'm sure many of the regulations it enforces could be streamlined or eliminated with no ill effects. At the same time, a lot of its agencies perform necessary government functions, like the BLS and OSHA. I think at least some of the opposition to the Department of Labor comes from its name, which some see as synonymous with unions. I didn't realize this until writing this entry, but in fact, the National Labor Relations Board (which does probably deserve to be eliminated) is an independent agency, separate from the Department of Labor.
I voted to eliminate the Department of Housing and Urban Development. As the Department responsible for Fannie Mae and Freddie Mac, HUD has been possibly the most abject failure of any federal department over the last two decades. Even if it hadn't overseen the housing bubble, there's simply no reason that I can see that we need a federal housing policy, or a federal urban development policy. I don't know of anything the federal government does that is more local in nature than urban development. Even the name begs for the department to be localized.
What is the best way to fix immigration in the US?
My answer was to "create a path to citizenship," and 35% agreed with me, more than any other answer. However, a stronger fence and more border patrol agents go hand-in-hand, and it's hard to see someone supporting one of those while opposing the other. Combined, the "stronger border" options get 39% of the vote.
I support a path to citizenship out of practicality, although I would prefer to call it a "path to legality." Not everyone who comes to the US wants to stay permanently, and not everyone who stays permanently wants to become a citizen. Our immigration policy has to recognize that fact. But I do support some kind of path to legality for illegal immigrants already here because the other two options are simply impractical. With upwards of ten million illegals in the country, it is practically and fiscally impossible to deport them all. But leaving them alone and maintaining the status quo, where ten million people are in open disobedience of the law, is also impractical. It breeds contempt for the law and for America as a country, as evidenced by the 2006 protests. The only way forward is through some kind of path to legality.
The stronger fence and border patrol also won't work for practical reasons. The border is so porous already that sealing it would cost tens of billions of dollars at a time when we're already borrowing more than 40% of what we spend. Keeping the border sealed would cost tens of billions more. The only reason people immigrate illegally is because we've made it so difficult to immigrate legally. Get rid of the quotas and the waiting lists, and simplify the immigration process, and illegal immigration will fall dramatically overnight.
Monday, February 8, 2010
Centrally Planning Decentralization
Yesterday, Arnold Kling offered a suggestion for how to return America to federalism. He doesn't explain why he likes federalism so much, so I'm assuming he likes federalism for the same reasons most people do: increased government accountability, greater local autonomy, smaller jurisdictions acting as policy test tubes, etc. Underlying all of these reasons, and usually the desire for federalism itself, is a belief in the efficiency of decentralization. Locals are better informed about local issues and have more at stake than some far-away central government, and so are more likely to make the right decisions for the local population. I'm sympathetic to this line of thinking myself, but I have a few issues with Kling's plan.
Second, much of the plan seems simply arbitrary. (To be fair, he introduces the post as a pre-Superbowl "daydream sort of post.") Some current states and cities are "ridiculously large" while some are too small to warrant equal footing. County-states have more flexibility, and are allowed legislatures and further decentralized governments within the county-state. But that only stresses the arbitrariness of the dividing line between city-states and county-states. The ideal size for a city-state, according to Kling, is a population of 500,000 over 100 square miles, or a density of 5,000 people per square mile. (Interestingly, Kling apparently grew up in St. Louis, Missouri, a city which then had a little more than 500,000 and now has a little less than 500,000, with a density fairly close to 5,000 people per square mile.) Cities like Columbus are too spread out to be city-states, he says, while cities like New York or so huge they should be split up into as many pieces as necessary to make them fit his ideal city size. But it's just a number pulled out of thin air. The same is true for the governance structure. Why should the governor of a city-state be necessarily elected to a life term with no legislature in his/her way, while the governor of a county-state has to deal with a legislature? Not only is his approach excessively centrally-planned, it seems as if it's randomly planned.
For all I know, maybe New York would be better off split into multiple independent cities. Maybe Montana and Idaho would be better off merged into a single state. Maybe some cities would be better off without city councils. But shouldn't those be decisions made by the people who live there? Shouldn't they be allowed to decide for themselves how their governments are structured? What works for New York may not work for LA or Seattle or anywhere else for that matter. That's the advantage to federalism in the first place-- the efficiency of decentralization. Locals use local knowledge to make the best decisions for the local population.
As it stands, it's extremely difficult for specific jurisdictions to change their boundaries. Maybe the solution is to relax those constraints. If two jurisdictions want to alter their boundaries, let them. Make it easier for jurisdictions to change on their own, when they want, in the ways they want, and over time we'll see organic movements towards optimality. No one has to arbitrarily decide for the entire country what the local optima are. The local jurisdictions will do that on their own.
First, this strikes me as an excessively centrally-planned approach to making things less centrally planned. Kling knows exactly how many people a city-state should have over how wide of an area, and if that means forcefully breaking up cities like New York or LA, so be it. Moreover, he knows exactly how they should be governed, with a one-size-fits-all constitution for all of his new city-states. Each is to be governed by a single individual, with no legislature. He has a very specific vision for this new government that allows no diversity of opinion and very few checks and balances.
Second, much of the plan seems simply arbitrary. (To be fair, he introduces the post as a pre-Superbowl "daydream sort of post.") Some current states and cities are "ridiculously large" while some are too small to warrant equal footing. County-states have more flexibility, and are allowed legislatures and further decentralized governments within the county-state. But that only stresses the arbitrariness of the dividing line between city-states and county-states. The ideal size for a city-state, according to Kling, is a population of 500,000 over 100 square miles, or a density of 5,000 people per square mile. (Interestingly, Kling apparently grew up in St. Louis, Missouri, a city which then had a little more than 500,000 and now has a little less than 500,000, with a density fairly close to 5,000 people per square mile.) Cities like Columbus are too spread out to be city-states, he says, while cities like New York or so huge they should be split up into as many pieces as necessary to make them fit his ideal city size. But it's just a number pulled out of thin air. The same is true for the governance structure. Why should the governor of a city-state be necessarily elected to a life term with no legislature in his/her way, while the governor of a county-state has to deal with a legislature? Not only is his approach excessively centrally-planned, it seems as if it's randomly planned.
For all I know, maybe New York would be better off split into multiple independent cities. Maybe Montana and Idaho would be better off merged into a single state. Maybe some cities would be better off without city councils. But shouldn't those be decisions made by the people who live there? Shouldn't they be allowed to decide for themselves how their governments are structured? What works for New York may not work for LA or Seattle or anywhere else for that matter. That's the advantage to federalism in the first place-- the efficiency of decentralization. Locals use local knowledge to make the best decisions for the local population.
As it stands, it's extremely difficult for specific jurisdictions to change their boundaries. Maybe the solution is to relax those constraints. If two jurisdictions want to alter their boundaries, let them. Make it easier for jurisdictions to change on their own, when they want, in the ways they want, and over time we'll see organic movements towards optimality. No one has to arbitrarily decide for the entire country what the local optima are. The local jurisdictions will do that on their own.
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