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The official blog of the National Center for Public Policy Research, covering news, current events and public policy from a conservative, free-market and pro-Constitution perspective.

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Bloomberg Soda Ban a Bust, Project 21’s LeBon Comments

In a devastating blow to the New York City nanny state of former mayor Michael Bloomberg, judges on the New York State Court of Appeals voted to uphold two lower court rulings thus keeping the city government from banning the sale of certain soft drinks in certain places under the mayor’s regulatory grip.

This was the last possible appeal, and the extent of the former mayor’s overreach in crafting the ban may deal a devastating blow to other nanny state policies in the Big Apple and elsewhere because the ruling now calls into question the authority of the city’s Board of Health.

Under Bloomberg’s rule, the Board of Health imposed a ban that prohibited specified sugary soft drinks from being served in containers larger than 16 ounces.  Besides the assault on consumer choice and basic freedom, the plan was criticized for having many exceptions (milkshakes and coffees were exempted from the ban that was largely seen as targeting carbonated beverages) and only restaurants, theaters, arenas and other venues under the authority of the Board of Health were affected.

The judges voted four to two to go along with the lower court rulings that stopped the ban from going into effect, with Judge Eugene F. Piggott, Jr. writing that the Board of Health “exceeded the scope of its regulatory authority.”

In dealing this blow to city regulators, other harsh rules imposed by the New York City Board of Health such as the infamous ban on trans fats and the menu calorie-count requirement – things that are now championed by the likes of the Obama Administration – could be at risk.

Project 21 co-chairman Cherylyn Harley LeBon, a long-time critic of nanny state policies in general and the Bloomberg soda ban plan in particular, is cheering the judges’ decision to curtail the power of city bureaucrats.  Cherylyn said:

While we all acknowledge that obesity is a problem in our country, attempting to mandate behavior by regulation is not the best approach.  I am glad that New York’s Court of Appeals ruled that the city’s health board lacked authority to impose the ban.  I wholeheartedly agree.

We should focus on programs which help individuals make better choices for themselves and encourage schools to increase physical education programs and after-school activities promoting activity instead of sitting in a room.

In the end, individuals have to be motivated to change their behavior.  Limiting the availability of soda in one establishment only motivates people to patronize another business – it did not dissuade people from wanting to consume soda.


The Constitution Beats Barack Obama, 9-0

An amusing side note to the major Supreme Court case decided today, NLRB. v. Noel Canning, is how many people believe Noel Canning is a man.

For example, this lead paragraph in The Wire:

In a narrow ruling that preserves much of the presidential recess appointment power, the Supreme Court struck down President Obama's 2012 recess appointments to the National Labor Relations Board. The court was unanimous in its judgement for Noel Canning, who challenged the president's decision to fill vacancies on the NLRB, even though the Senate was holding "pro forma" sessions to prevent the president from using that power....

Here's a photo of "Mr." Noel Canning:


If you think Mr. Canning bears a remarkable resemblance to a Pepsi-Cola bottling plant, you'd be right.

The Wire is owned by Atlantic Media, which, as the owner of the Atlantic and National Journal (among other media properties), is big enough to have editors.

On the merits of the case: President Obama was trying to use his recess appointment power not to overcome the fact that the Senate was out of town and unavailable to confirm his nominees, but to overcome the fact that the Senate did not approve of his nominees. The Constitution gives no authority to the President to use the recess appointment power to bypass Senate opposition to his nominees. As such, the President's actions were improper, and the Court was right to strike them down.

NLRB v. Noel Canning is an important case for the protection of the Constitution during an Administration that has been shameless about seizing powers belonging to the other branches of government. Fortunately, the Court saw the President's illegal and improper maneuver for what it was, and the Constitution won, 9-0.

I commented further here.


Lesson of the VA: Employees More Likely To Cheat When They Can't Be Fired

The VA scandal is, in part, the result of the fact that most employees at the VA have civil service protections, which makes it very difficult to terminate their employment.

When employees have goals they can’t meet—such as a 14-day waiting standard—and not meeting them means they don’t receive promotions, raises and bonuses, well, the incentive among employees to manipulate the data is much higher when they can’t be fired.  We’d like all people to be honest, even those who have civil service protection, but the odds are on honesty going down the crapper when there are few consequences for dishonesty.

From the Office of Inspector General interim report, here’s a few of the tactics that VA personnel resorted to in order to goose the wait time numbers:

-Don’t put them on the list:  At the Phoenix facility, the OIG “identified an additional 1,700 veterans who were waiting for a primary care appointment but were not on the EWL [electronic waiting list]…The length of time these 1,700 veterans wait for appointments prior to being scheduled or added to the EWL will never be captured in any VA wait time data because Phoenix HCS staff had not yet scheduled their appointment or added them to the EWL. Until that happens, the reported wait time for these veterans has not started. Most importantly, these veterans were and continue to be at risk of being lost or forgotten in Phoenix HCS’ convoluted scheduling practices. As a result, these veterans may never obtain their requested or required primary care appointment.”

-Use the first open date, not the date requested by the patient: “…it appears that a significant number of schedulers are manipulating the waiting times of established patients by using the wrong desired date of care. Instead of schedulers using a date based on when the provider wants to see the veteran or when the veteran wants an appointment, the scheduler deviates from VHA’s scheduling policy by going into the system to determine when the next available appointment is and using that as a purported desired date. This results in a false 0-day wait time.” “Overall, 13 percent of scheduling staff interviewed indicated they received instruction (from supervisors or others) to enter in the ‘desired date’ field a date different from the date the Veteran had requested.” 

 Now, none of this is to suggest that data manipulation doesn’t happen in the private sector. Of course it does!  But, in the private sector, there are actually consequences:

-GlaxoKlineSmith PLC’s former head of R&D in China—whom Glaxo fired this month, saying a scientific paper he helped write contained “misrepresented” data—has denied any involvement in data manipulation.

Glaxo didn’t say who was responsible for misrepresenting the data in the paper, which was published in Nature Medicine in 2010. But earlier this week, the company said it had fired Jiangwu Zang, the company’s China R&D chief, after a company investigation found problems with some data in the Nature Medicine paper.

-Barclays sacked five staff over Libor manipulation scandal. Investment bank chief Rich Ricci tells banking standards commission 13 were disciplined – but others had already left.

-Apparently, even the press frowns on this:  ”April 1 may forever haunt Colin Crawford, Los Angeles Times Director of Photography, and Brian Walski, a staff photographer covering the war in Iraq for the paper. That was the day Walski was fired, after it was revealed that a photo he submitted on Sunday was actually a composite of two images he had captured.”

-Even firms that are only partially private sector hand out pink slips to data manipulators: Government Motors General Motors “Tavera recall gets murkier as company fires staff for fudging data.”

Such consequences increases the amount of honesty in the private sector and prevents more data manipulations from happening than otherwise would.  Thus, it makes good sense that some of the VA reform proposals contain provisions making it easier to fire VA employees.   


Black Conservatives Discuss Canning Case

Today’s big decision from the U.S. Supreme Court was a unanimous ruling against the Obama White House in the case of NLRB v. Canning.

The justices found that President Obama acted improperly in making recess appointments to the National Labor Relations Board at a time when the Senate was in session.

A president acting decisively in this manner, such as making appointments during a crisis when senators were out of town, was more of factor when travel was not so easy.  In this case, the Senate was in session and the appointments in question were controversial nominees who likely would not pass Senate muster had a vote even been scheduled.

Project 21 members are speaking out about the Canning decision and what this means and says about the Obama Administration method of governing.

Project 21 co-chairman Horace Cooper, a legal commentator who taught constitutional law at George Mason University and is a former leadership staff member for the U.S. House of Representatives, lays a lot of the blame for the circumstances that brought the justices wrath upon this executive branch overreach on Attorney General Eric Holder, the Obama Administration’s chief legal officer.

Horace said:

The Supreme Court’s unanimous ruling makes clear that President Obama should never have attempted these appointments to the NLRB.

This is yet another loss based on ill-considered legal reasoning.

The Obama Administration has been ill-served by the Justice Department and Attorney General Eric Holder.  Recommending to the President that he has authority he clearly lacks created unnecessary conflict and will result in a host of challenges to the activities of the NLRB.

An Attorney General committed to the Constitution more than to his political party would never have let this happen.

Project 21 Deroy Murdock, a syndicated columnist and Fox News Channel contributor applauded this limit on Obama’s quest for increased and unbalanced executive power:

Today’s unanimous Supreme Court decision in the NLRB v. Canning case is a major and much-welcome rebuke to Obama’s “go-around Congress” approach to governing.

As he grows more dictatorial by the day — using his “pen and a phone” to issue decrees and re-write ObamaCare and other legislation at his whim — the Supreme Court has put our Dear Leader back in his place.

While Obama may not like it, the federal government is composed of three separate and co-equal branches of government.  Obama should learn from this humiliating defeat, stop behaving like a Third World despot and cooperate with Congress when he hopes to change public policy or appoint federal officials.


Project 21's Derryk Green: Federal Unemployment Numbers Not What You Think

Project 21 member Derryck Green tells Soul of the South host Angela Rae that the reported decline in the government’s unemployment calculations is “not impressive,” noting that factors such as a lack of confidence on the part of potential employers and the many people despondent and living under “a heavy blanket of apathy” has profoundly affected workforce participation.  This factor, which is as bad as it was in the late 70s Carter era of malaise, is more authoritative and shows a more negative picture of the nation’s employment crisis.

On the 6/17/14 edition of “D.C. Breakdown,” Derryck notes many new college graduates are unable to find good jobs, and are often forced to make ends meet by taking jobs below their skill level.  Job creators are wary, with many thinking it more prudent right now to try to “ride out the Obama wave.”  But the longer the innovators and the employers wait, the harder it is likely to be to restart America’s stalled economy.

This perilous cycle of circumstances forces many young people to move back in or remain living with their parents and makes it difficult — if not impossible — for them to repay expensive student loans.

As for the performance of President Obama in dealing with the problem, Derryck says Obama makes the situation worse because he “advocates for equality [in the economy]… not wealth creation.”  Congressional inactivity also adds to the problem, and conservatives need to be more convincing and forceful with a counter-narrative to the agenda of the Obama Administration and its supporters.


Skeleton of VA Nursing Home Patient Found After Missing 15 Years

Carl McKenzie, a psychiatric patient, had been missing for four months from the Veterans Affairs Medical Center in Salem, Virginia.  In late March, his body was finally found in some underbrush near the hospital.  That same day, a groundskeeper found patient Leonard Cunningham who had been missing since February.  Cunningham was hanging by a rope on a tree not far from where McKenzie had been found. In response, the authorities initiated a clearing of the underbrush that covered much of the facility. 

In May, that effort resulted in the discovery of a skeleton.  It’s wristband revealed it to be a patient who had wandered off from the facility’s nursing home 15 years earlier.

After that, measures were taken to improve the search procedures at the Veterans Affairs Medical Center in Salem, but the effectiveness of those measures is open to debate. In December of that year, Roy Phillips, a Korean War veteran who could barely walk, went missing from the hospital.  A search was organized but was called off later that night.  Two groundskeepers found Phillips the next morning dead from exposure.

While that sounds like something that happened recently at the VA, it occurred back in 1992.

It’s no secret that the VA has had a long history of such scandals.  Ironically, though, I found the above story in Phillip Longman’s book Best Care Anywhere: Why VA Health Care Is Better Than Yours. In a piece that will be out shortly, I show how the idea popularized by Longman’s book is, in part, to blame for the VA waiting list scandal.

One of Longman’s contentions is that the VA works so well because of its computerized medical record system known as VistA.  Supposedly VistA enables physicians and other health care providers to avoid making serious, sometimes deadly, medical errors.  That makes this recent story about the VA seem rather curious:

Two psychiatric patients at a veterans facility in Brockton received no regular evaluations of their condition for years, part of a “troubling pattern of deficient patient care” that federal investigators say they have confirmed at veterans health care facilities nationwide.

One of the neglected patients at the Brockton Community Living Center who had been admitted for “significant and chronic mental health issues” was living in the 106-bed facility for eight years before he received his first psychiatric evaluation, investigators reported.

The other unidentified patient, although he was classified as 100 percent mentally disabled due to his military service, had only a single “psychiatric note” placed in his medical file between 2005 and 2013.

How good is a medical record system if it takes eight years for a patient living in a VA facility to receive an evaluation?  Granted, errors will happen even in the best record system, but that’s one pretty big error. I suspect that as this scandal unfolds we are going to find out that VistA isn’t all it’s cracked up to be.

To read more about VA disasters, a report released yesterday by Senator Tom Coburn’s is a good place to start. Here’s one example:

A nurse at the Lexington medical center was charged with killing a World War II veteran and eventually admitted fault with very little consequence. The veteran, who served in Europe, was killed by a morphine overdose at a VA Hospital in Lexington, Kentucky in September 2006. The nurse who administered the lethal dose was charged with murder. Some of the veteran’s family members said the nurse “harassed them for two years to try to get them to admit guilt” in the death. The veteran’s stepdaughter said, “the FBI was here a couple of times. They interrogated me and tried to make me say I did it and not to ruin the VA hospital’s reputation.”The court found the “additional doses of morphine provided by” the nurse “were a contributory cause of” the veteran’s death and she eventually pled guilty to involuntary manslaughter. At least two other veterans cared for by the same nurse “died under suspicious circumstances” after being given morphine, according to a special agent with the VA Inspector General (IG). The nurse was sentenced to “time served of eight days.” Eight days represent significantly less time than most veterans spend waiting to receive care at a VA center.  


The U.S. Supreme Court Should Stop Keeping Secret What Cases It is Handing Down and When

Supreme CourtWould you look twice at one of these people, dressed normally, at the supermarket?

Far be it for me to criticize the U.S. Supreme Court, which has ways many and sundry of communicating that its members are superior to those of us who are (so it thinks) mere peons in comparison, but why must the public go through, every year, the suspense of waiting until the Court hands down decisions to find out which decisions it is handing down?

Each case handed down is of keen interest to some people, but each case is not of equal interest to all people. Nonetheless, the court forces everyone with an interest in any case to set aside time, over and over again, in case any given day in which decisions are handed down is THE DAY in which the decision(s) they care about are handed down.

It's obnoxious, that's what it is.

I realize many people are content to wait to learn to decision of the court on the news, but many others -- the parties to the cases, attorneys, reporters, government officials and policy analysts like myself -- have specific work to do when certain cases are handed down. Yet we aren't allowed to schedule that work in advance because the court doesn't have the simple courtesy to give advance notice: "Monday we will be handing down Jarndyce v. Jarndyce."

Heck, even to post on the court website the night before what is scheduled for morning release would be better than the current situation, in which thousands of people repeatedly set aside time to deal with, report upon or analyze the aftermath of Jarndyce v. Jarndyce, only to find the court instead has handed down a decision on Argentinian bonds.

And for their part, how many Jarndyce v. Jarndyces did the Argentinians have to sit through, waiting for their decision?

There's no reason the court can't tell us what decisions will be handed down when once it knows, and don't tell me "tradition." That might get me started on some of the other "traditions" of the court, one of which was "corruption." Hopefully we gave that one up.

My belief is that the justices enjoy being the only ones in the know. It's really impossible to watch the rude way they treat attorneys in the court without recognizing that a few of them have gotten way too big for their gowns.

Oh, and the part I said about "far be it for me to criticize the U.S. Supreme Court"? If you haven't noticed by now, I take that back. In addition to making more than one bazonkas decision, and interrupting the lawyers too much, and jerking people around as to when specific decisions will be handed down, the Court should allow cameras in the courtroom so we the people can watch and hear the arguments as they are made in real time, as well as the interruptions, excuse me, questions, made by the justices.

Doing so would help educate people about the arguments made in cases. Transcripts of oral arguments are good and appreciated, but let's face it, many people (inexplicably) avoid reading. It's not good of them, but it is true. And much of the news media ignores aspects of stories if there's no footage. Ratings, you know.

I wrote an article on this in the Ft. Lauderdale Sun-Sentinel in 2000 when the court was hearing arguments in Bush v. Gore. Public interest in that case was a wee bit high, but we mere peons in the public weren't allowed to watch. Might discomfit our betters.

Maybe if the public had been able to watch, more people would have understood the issues grappled with, and fewer would have been bitter at the result. I don't know how many times in the intervening 14 years I've read comments by bitter Gore partisans about that case -- comments that made it clear they did not understand the issues (other than the presidential race) on the table.

My take: Who cares if Justice Souter wanted to go to the supermarket without being recognized? He quit anyway.

P.S. Here is a group circulating a petition to the Chief Justice asking for cameras in the courtroom.


Commonwealth Fund Study: Cost Versus Access

I recently appeared on the Andrew Wilkow show to discuss the new Commonwealth Fund study that purports to show that the U.S. health care system is dead last among 11 industrialized nations.  

Greg Scandlen adds some more points about the flaws in the study at The Federalist:

Commonwealth places excessive emphasis on costs to bring down the American ranking. In virtually every instance of the U.S. ranking below other countries it is due to the cost of care. For instance, in questions of access to care it reports on the number of people who –

  • “Had medical problems but did not visit the doctor because of cost in the past year.
  • “Did not get recommended test, treatment, or follow up because of cost in the past year.
  • “Did not fill a prescription of skipped doses because of cost in the past year.”

(Bolding mine) Note that it is unconcerned about access denied or delayed for other reasons such as availability of services.  One might think that having access to a needed service, even if it costs you something, is far better than not having access at all. But that is not how Commonwealth sees things. It is also unconcerned about how the service is paid outside of direct out-of-pocket spending.

Yes, I may have a substantial copayment in getting a needed treatment, but how much more in taxes would I have to pay to avoid that out-of-pocket expense? Is it more efficient to pay taxes to a government agency, which then pays the provider for the service, or to skip the administrative burden and pay the provider directly? Passing the money through Washington before it goes to the provider means paying many additional people to handle the money.

Read it all here.

And here is my appearance on “Wilkow!”:


The IRS Scandal: Lessons from Scripture

Bible DPC WMatthew 9:9-13

"As Jesus was walking along, he saw a man called Matthew sitting at the tax booth; and he said to him, 'Follow me.' And he got up and followed him. And as he sat at dinner in the house, many tax collectors and sinners came and were sitting with him and his disciples. When the Pharisees saw this, they said to his disciples, 'Why does your teacher eat with tax collectors and sinners?' But when he heard this, he said, 'Those who are well have no need of a physician...'"

Tax collectors were welcomed by Christ at his table because they wished to repent and sought his mercy.

According to Scripture, none of them said, as IRS Commissioner John Koskinen recently did, "I don't think an apology is owed."


Who Does Washington Fear More... Americans, or Foreign Aggressors?

SWAT officers in tactical gearOur best information indicates the number of full-time, armed federal law enforcement officers is nearly 1/3 the projected size of the U.S. Army in the latest Pentagon budget.

It appears Washington fears Americans.

The new Pentagon budget, proposed earlier this year, would cut our Army down to a pre-World War II level of between 440,000 and 450,000 soldiers. That's a decline of over 25% just after 9/11.

At the same time, the federal government is arming up against citizens.

In 2008, according to the "Census of Federal Law Enforcement Officers," there were 120,000 federal employees in 73 agencies authorized to carry guns and make arrests. That was an increase of 12.5% in just four years.

We don't know exactly how many such employees there are today because the every two-year census that started back in 1993 suddenly stopped during the Obama Administration.

When asked why the Census was discontinued, a Justice Department spokesperson said, "Due to available resources and staff we have delayed a number of projects, the Census of Federal Law Enforcement agencies being one."

Justice did, however, find resources to conduct several studies relating to guns last year as it was pushing for more stringent gun control laws.

Even without a more recent Census of Federal Law Enforcement Officers, it is clear that the number of armed federal employees has grown. According to the Census' "Annual Survey of Public Employment and Payroll Summary Report: 2012," there were 192,354 federal employees involved in "police protection." Though this number includes employees who are not sworn officers, including lab technicians, dispatchers and the like, historical data suggests that sworn officers constitute two-thirds of this number, putting the number of full-time armed employees at around 129,000 as of 2012 and likely even more today. That's nearly a third the size of the Obama Administration's proposed Army strength. And bear in mind that this number does not count state, county and local officers.

If we want to demilitarize, perhaps we should start at home.


When Bush Was in the Middle of a World Financial Meltdown, His Employment Numbers Were Still Better Than Obama's Today

QuizzicalBlackManDPCBorderWThe United States should change how we measure the health of the economy. The unemployment rate tells us very little given that those who get discouraged exit the labor market, lowering the unemployment rate.

Wouldn't a better measure be the proportion of employed to the total population?

If that's the measure, it becomes obvious that we're in decline.

In January 2009, the number of Americans with full-time jobs was 115,794,00 and the number last month was 118,727,000 (both seasonally adjusted).

But the population has grown from 305,794,224 in January 2009 to an estimated 318,264,459 last month, meaning that the percentage of Americans with full-time jobs has decreased from 37.8% to 37.3% since President Obama's inauguration.

Some additional interesting statistics...

The number of full-time employed in November 2007, the month before the recession began, was 122,649,000 -- almost 4 million more than today. The population then was about 302 million, meaning that 40.5% of Americans had full-time jobs.

In November 2008, when the world was reeling from the financial crisis, the number of full-time employed was 119,596,000 -- 869,000 more than today. A month later, the number was 118,668,000, almost imperceptible from the number today. The population back then was 305 million, meaning that the percentages of Americans employed were 39.2% and 38.9%, respectively.

So, just to recap... President Bush was in the middle of world financial meltdown and he still managed to beat Obama's economic performance.

(Oh... and, by the way, the uninsured rate was lower in October/November 2008 than it is now, too.)

Let's start measuring unemployment honestly.


Project 21's LeBon Discusses Logic of, Black Support for Voter ID

Dispelling myths about voter identification laws and civil rights concerns, Project 21 co-chairman Cherylyn Harley LeBon tells “D.C. Breakdown” host Angela Rae that — contrary to popular liberal belief — the majority of black Americans actually support a verification of identity at polling places before ballots are given to prospective voters.  This majority support for state-level voter ID laws was found in a poll that also showed the same blacks surveyed supported President Obama strongly on his other agenda items such as economic and health care policy.

On the 6/17/14 edition of this Soul of the South network program, Cherylyn pointed out the logical need for ID for more than just voting, as well as the inherent and real threat to the democratic process from “ghost voters” when there are no simple safeguards in place to safeguard balloting. 


RAD Director Jeff Stier to UN Panel: Private Sector Involvement is Key to Fighting Non-Communicable Diseases


National Center Risk Analysis Division Director Jeff Stier spoke at the United Nations today, urging delegates there to recall that voluntary, private sector initiatives can and should be an effective part of the mix in deterring non-communicable diseases (NCDs).

NCDs, according to the World Health Organization, kill about 36 million people a year worldwide. They include such things as heart disease, cancer, respiratory diseases and diabetes.

At the U.N., Jeff said,

I am heartened to hear, both from this roundtable, as well as from the participants in the opening session today, that there is consensus surrounding a multi-stakeholder approach to confronting non-communicable diseases. While industry has been demonized for years, and in some cases rightfully so, I am encouraged that this process recognizes the need for a seat at the table for industry.

I urge the high level meeting taking place in July to include in its outcome document specific and concrete examples of how this engagement with the private sector can be implemented.

The two areas being discussed here today related to the leading causes of NCDs are food products and tobacco products. In both cases, innovations by these industries can be harnessed to help reduce the burden of NCDs worldwide.


In the food industry, innovations and choices already offered by industry to reduce salt content or to substitute non-caloric sweeteners should be recognized and further encouraged. These innovations have come from the private sector and should be leveraged in this U.N. process.

With regard to tobacco-related disease, widely recognized as the greatest contributor to the global NCD burden, the private sector has also innovated to help smokers quit. The growing popularity of e-cigarettes among cigarette smokers is very promising.

These products provide a choice to consumers, allowing them to dramatically reduce their risk of disease.

The concept of reducing harm through innovation should be included in the UN High Level Meeting Outcome document. Thank you.

Jeff reports that H.E. Mr. Courtenay Rattray, Permanent Representative of Jamaica and the chairman of the hearing (officially "the United Nations Interactive Hearing with Non-Governmental Organizations, Civil Society Organizations, the Private Sector and Academia on the Prevention and Control of Non-Communicable Diseases") said to Jeff in response, "I hear you loud and clear." Rattray also said the involvement of the private sector "is fundamental to fighting NCDs."

More about Jeff's speaking appearance at the United Nations and what he is trying to achieve there can be found here.


NCPPR's Hogberg Discusses Health Care Hassles in Several TV Interviews

Dr. David Hogberg, the National Center’s policy analyst for health care issues, appeared on two television interviews this week.

On the Soul of the South’s “D.C. Breakdown” program on 6/16/14, David was asked about the 8 million people the Obama Administration claims are signed up for ObamaCare through the federal and state health care exchanges.  While that number may be correct, David said it is also highly likely that between 10 and 20 percent of those who signed up for ObamaCare before the mid-April deadline may no longer be attached to ObamaCare by the end of the year because they are not qualified to enroll, non-payment of the policy they signed up for, they got a job with employer-provided care or qualified for and enrolled in Medicaid instead.

David said the Obama Administration has only itself to blame for problems regarding qualifications because, for example, the enrollment system was originally set up to take people on their honor about financial information.  Likewise, there was a lack of foresight into how the policy would develop and evenutally cost that is now causing people to find that policies available to them on the exchanges are much more expensive than they anticipated.

On the 6/17/14 edition of “Wilkow!” on Glenn Beck’s Blaze TV network, David discussed the possible politics and methodology behind a new report by the Commonwealth Fund that purported to find American health care to be both the most expensive and lowest quality among 10 other “peer” countries.  David called the report “utter rubbish.”

Host Andrew Wilkow saw the report as a means for the political left to continue to push American health care toward a government-run single-payer system.  David agreed that the demonizing of American health care was an obvious goal of the report.  He also noted that the way the report was put together — in which Britain was ranked the best peer — seemed to ignore important factors such as wait times, quality of care an conditions and factors such as cancer-survivability that would have made America look much better in comparison.


Chris Christie and John Kasich Want to Tax Virtue?

smoking skullIf a tax on tobacco cigarettes is a "sin" tax, is a tax that stops people from quitting smoking a "virtue" tax?

In "The Christie-and-Kasich Tax Show: Why are they taxing people who are trying to quit smoking?," published by National Review Online, National Center Senior Fellow Jeff Stier and the Heartland Institute's Greg Conley ask why two supposedly conservative governors want to raise taxes on e-cigarettes, devices that help people quit cancer-causing tobacco cigarettes.

Jeff and Greg write, "There's an interesting phenomenon playing out in both New Jersey and Ohio: Two of the country's most prominent conservative Republican governors have proposed new taxes of a sort that haven't appealed even to traditionally liberal, tax-hungry state legislatures in states like Massachusetts and Washington."

In the past, "sin taxes" were sold to us by politicians on the theory that their imposition would make "sinning" more expensive, so people would do less of it. Harsh taxes on tobacco cigarettes were sold to the public in precisely this manner.

But as e-cigarettes help people to stop sinning, aren't taxes on them something akin to a "virtue tax"?

And those of us who live in Maryland thought our state rain tax was bad! At least Maryland doesn't tax virtue - yet.

Jeff and Greg provide more details about the keep-folks-smoking tax in their article:

New Jersey governor Chris Christie and Ohio governor John Kasich have asked their legislatures to enact an excise tax, or sin tax, on the sale of electronic cigarettes (e-cigarettes).

E-cigarettes are smoke-free, tobacco-free, battery-operated devices that allow smokers to get nicotine without inhaling burning-tobacco smoke. Currently, these products are subject to sales tax, like any other consumer product, in Ohio, New Jersey, and 46 other states.

Jeff and Greg explain more about what is going on in each of the two states:

New Jersey: "Governor Christie announced the plan in the spring but still has not actually specified the rate at which he wants to tax e-cigarette products. That hasn't stopped his Treasury Department from somehow estimating that $35 million in revenue would result from this undefined tax hike. Indeed, his administration has refused to admit that this is a tax hike, instead describing the tax as part of a move to 'level the playing field' between e-cigarettes and combustible cigarettes, the latter of which are taxed at the state level at $2.70 a pack. Putting aside the absurd notion that cigarette markets need to be protected from competition, Governor Christie's adamant denial of the fact that he is seeking to increase taxes should worry any conservative who wants to see him in the White House."

Ohio: "Governor Kasich's Ohio plan would, over two years, raise the state's tax on a pack of actual cigarettes from $1.25 to $1.85, tax e-cigarettes at 49 percent of wholesale price, and raise the state's tax on smokeless tobacco to the same rate. The Kasich administration is claiming that the estimated $850 million in revenue created by these tax increases over a three-year period would allow Ohio to cut income taxes along all brackets."

Jeff and Greg also explain why these particular sin taxes are so antithetical to a core conservative principle:

E-cigarettes are a prime example of the free-market insight that the private sector is better than government at addressing societal problems. E-cigarettes may do more good for public health by getting people to quit smoking than any tax, warning label, or self-righteous taxpayer-funded ad campaign has ever done. So we are bewildered as to why Governors Christie and Kasich would proactively seek to undermine this private-sector approach to smoking by, of all things, taxing it.

smoking skullWhy do Chris Christie and John Kasich want to deter people from using products that help them quit smoking?

The authors have a theory as to what is really going on.

Our best bet is that it has nothing to do with public health per se, and everything to do with another kind of addiction. These proposals underscore the fact that state governments are more addicted to cigarettes than most smokers are: At least some smokers can quit -- but states don't give up tobacco taxes. Now that smokers are quitting tobacco and using the dramatically less risky alternatives, those responsible for state budgets want to keep their hands in our pockets by taxing tobacco-free e-cigarettes. The governors' approach to the real public-health heroes who have quit smoking with e-cigarettes? Pay up.

Jeff and Greg add:

We think sin taxes are a bad idea. But if they do exist, even for e-cigarettes, they should at least have a structure that more accurately reflects the risks of different products.

First, for decades, high sin taxes on cigarettes have been justified by pointing to the costs incurred by taxpayers in treating smoking-related illness. These costs have been overstated, but e-cigarettes, which help people quit, will reduce health-care costs, so no additional tax on them is justified.

Second, advocates for cigarette sin taxes argue that taxes help 'nudge' people to behave differently. Making the cost of e-cigarettes equal to or higher than that of real cigarettes would nudge people in the wrong public-health direction -- away from using the dramatically less harmful alternative to cigarettes.

It's not just Jeff and Greg who say e-cigarettes are much less harmful than smoking. The piece continues:

The chief regulator at the Food and Drug Administration's Center for Tobacco Products, Mitch Zeller, dispelled that notion when testifying before a U.S. Senate committee in May. 'If we look at a subset of smokers who are otherwise unable or unwilling to quit,' and 'we could get all of those people to completely switch all of their cigarettes for one of these noncombustible products, that would be good for public health,' Zeller said. He reiterated that belief earlier this month, telling attendees at a public health conference, 'Let's not lose sight of the bigger picture here -- tobacco use remains the leading cause of preventable death and disease principally because of the ongoing use of products that burn tobacco.'

Jeff and Greg conclude:

Republican governors, especially those who may have presidential aspirations, could learn a thing or two from Vermont's Democratic governor, Peter Shumlin, who opposed Christie- and Kasich-style taxes in his own state. 'My own view on e-cigarettes is that we should be cautious about taxing a product that we think might be gettin' some folks off of tobacco,' declared Shumlin at a press conference. We couldn't agree more.

Read the entire article at National Review Online.


New HHS Report Also Shows ObamaCare Raising Premiums, Reducing Choice

As noted below, the new report from the Dept. of Health and Human Services shows ObamaCare is likely headed for a death spiral.  The study also reveals that ObamaCare has increased insurance premiums.

The report states that the “national average for the second-lowest cost silver plan premium rate is $226 per month for a 27-year-old, ranging between a low of $127 to a high of $406.” Research by Heritage’s Drew Gonshoronski shows that the average premium in the individual market for all policies for 27-year-olds in 2013 was about $168.  The range was $87 to $500.  Remove New York with its community rating and guaranteed issue laws, and the top of the range is $329.

A new study by Avik Roy of the Manhattan Institute does a county-by-county breakdown of the premiums costs and found that they are, on average 49 percent higher than in 2013.

The HHS report also notes that…

…the amount that a 27-year-old woman with an income of $25,000 (218 percent of the FPL) would pay for the second-lowest cost silver plan is capped at $145 per month.  If she lived in Jackson, Mississippi, the premiums for the second-lowest cost silver plan available would cost her $336 per month before tax credits. Therefore, the amount of the premium tax credit would be $191 per month.  She could apply the $191 per month tax credit toward any plan of her choosing in any metal level. By applying her tax credit to the lowest-cost bronze plan in Jackson, which is priced at $199 per month, she could obtain Marketplace coverage for just $8 per month after tax credits. 

If she receives a tax credit premium subsidy.  If not, then her lowest-cost option is a $150 catastrophic plan.  A National Policy Analysis I authored shows that in 2013 that 27-year-old woman had 26 cheaper options on and 14 cheaper options on (Finder).  For people who receive no premium subsidy or a very small one, premiums on the exchanges are higher than they were in the individual market in 2013.

The report also tries to boost the choice aspect of the exchange by claiming that on average “consumers shopping in the Marketplace can choose from approximately 47 Marketplace plans,” and that there “were a total of 266 issuers by state offering Marketplace plans, ranging from a low of one issuer in New Hampshire and West Virginia to a high of 16 issuers in New York.”  

That same National Policy Analysis shows there were an average of 55 plans to choose from on alone for both male and female 27-year-olds in 2013.  On Finder, there were 77 for men and 84 for women.  For a 57-year-old couple, there were 51 choices on and 61 on Finder. In short, people generally had more insurance choices in 2013 that they presently have on the exchanges.

Research by Ed Haislmaier of Heritage shows that 360 insurance issuers participated in the individual market in 2013—94 more than are on the exchange.  The range was better as well, with 18 issuers in Texas and Florida and 2 for Hawaii, Montana, New Hampshire and Rhode Island.

Finally, the HHS report states that “82 percent of the people eligible to purchase a Marketplace plans live in rating areas with at least three issuers of Marketplace plans and 96 percent live in areas with at least two issuers. Fifty six percent can choose from plans offered by five or more issuers.”

That’s pretty much putting lipstick on a pig.  As this helpful pie chart form the report shows, 18 percent live in areas with only 1 or 2 carriers, and nearly half—47 percent—live in areas with 4 or less.


HHS says this “compares favorably with those covered by employer-sponsored insurance.”  Maybe, but that’s apples versus oranges.  How does it stack up with the individual market in 2013?  That comparison would tell us if the exchanges are improving choice or not.

As of right now, I’m unaware of any analysis that looked at the numbers this way for 2013.  If you know of any, let me know.


You Can't Sugarcoat Distasteful Legislation

In a piece for Forbes, Dr. Henry I. Miller and I discuss campaigns to have the government further regulate what we eat and drink in a misguided effort to fight obesity.

When we’ve written about these issues in the past, big-government advocates have rebutted our conclusion by misstating our premise. So up front, we make it clear, that obesity is a serious health problem.  

Obesity is a public health time bomb in young as well as older Americans.  It affects 12.4 percent of children ages 2 to 5, 17 percent of those ages 6 to 11 and 17.6 percent of those ages 12 to 19.  And it is insidious.  It takes a toll on the joints, is associated with several risk factors for cardiovascular disease (including high blood pressure, abnormal lipid patterns, and Type 2 diabetes), and is linked to cancers of the esophagus, breast, uterus, colon, rectum, kidney, pancreas, thyroid, and gallbladder.

There’s no doubt about it. So now, the question is what “we” should do about it. And who are the “we” that the activists want to do things. I once thought “we” are the same people as the “they” in “they say” it’s dangerous to swim after eating, or that Mikey from the Life cereal commercial died in a Pop Rocks accidentBut it turns out, “we” means the government.

But is curbing obesity the responsibility of the government?  The activists who constitute the self-appointed food police think so, and they are not shy about making their radical views known.  Their extreme proposals and hyperbolic rhetoric demonize big food producers and characterize food marketers as the worst sort of hucksters and profiteers.

Here’s how it works. 

The activists argue that obesity rates are sky-rocketing and that this growing public health emergency calls for extreme measures.  However, when the CDC says that childhood obesity has plateaued, and that rates have declined 43 percent among 2-5 year olds in the last decade, the nanny-staters seamlessly change their tune: “See, what we’ve been doing is working.”

Now, there’s legislation in the works that further advances the activist agenda.

Nanny-staters must love California’s SB 1000, a bill passed by the State Senate that will be considered by the Assembly this month.  It would mandate obesity, diabetes and tooth decay warning labels on sugary soft drinks.  But the proposed legislation is unscientific and inconsistent in so many ways. Why would the warning apply only to beverages?

Scientific evidence indicates that liquid calories are not inherently different than solid calories when it comes to weight gain.  As USDA’s Dietary Guidelines Advisory Committee reported in 2010, “In general, if total calorie content is held constant, there is little support for any effects on energy intake and body weight due to the calories consumed either as liquid or solid… . Thus, Americans are advised to pay attention to the calorie content of the food or beverage consumed, regardless of whether it is a liquid or solid.  Calories are the issue in either case.”  If activists reject scientific evidence, why should we accede to their demands?

Another inconsistency is that the bill requires warning labels for only an arbitrary subset of beverages.  This anomaly is obvious if we compare, for example, a 12 oz Starbucks Java Chip Frappuccino with a regular carbonated soda of the same size.  The former has 330 calories versus 140 for the soda, 13 grams of fat compared to none for the soda, and 46 grams of total sugars versus 39 for the soda – yet because it is milk-based, the Frappuccin would be exempt from the warning label. You don’t have to be a rocket nutritionist to know that this makes no sense.

As it relates to tooth decay, fermentable carbohydrates — including sugars — are the substrate the bacteria in your mouth use to produce the acid that can result in tooth decay.  Fermentable carbs are found in a wide variety of foods — not just sugar sweetened beverages — including but not limited to bananas, raisins and bread.  But tooth decay does not result from just the presence of fermentable carbs, bacteria and a suitable substrate (tooth).  The fourth important factor is time — time in the mouth that the tooth is exposed to the carbs and bacteria.  Thus, the importance of good oral hygiene.

In order to pass these types of laws, the activists use some pretty outrageous rhetorical devices which are unsupported by the science.

The food police subject us to the constant drumbeat of warnings that sugar is the new tobacco and that, therefore, we need warning labels, marketing restrictions and heavy excise taxes to protect consumers from making choices the activists think are unwise.

 But hyperbole about the dangers of food is in vogue these days, so why compare sugar only to tobacco if you can stigmatize it further  as being “just like” heroin?  That’s what best-selling author and advocate Dr. Mark Hyman says in the propaganda film, “Fed Up,” trying to shock viewers with the claim that “you are going become an addict.”  Should we be dispensing methadone to quell the craving for a Big Gulp or a Hershey’s bar?

 “Fed Up” is a good example of slick propagandizing about obesity.  Katie Couric, Laurie David and the lopsided panel of experts they interviewed in the film want us to believe it is an unbiased and factually balanced portrayal of the causes of obesity in the United States.  It is anything but.

 Food police activists love the film — and not only because they all seem to be in it.  “Fed-Up” advances Freedhoff’s thesis that obesity is caused by industry and government, while “personal responsibility” is just a canard cooked up by “big food” to seduce us into becoming helpless Twinkie-munching, soda-swilling zombies.

 Whether it’s California’s proposed warning labels, New York City’s ban on large sodas (currently in litigation), or campaigns to restrict marketing as if food were the same as tobacco (or heroin), activists need the public to buy into the narrative that no matter what happens, ethically-challenged industry will always be part of the problem rather than a potential part of the solution.  They believe the answer is ever more government intrusion and coercion.

We aren’t anarchists. We believe there is a proper place for govenment here. But it’s in advancing food science not political science.

There is, indeed a role for government policy making, but it’s not intrusive, punitive, arbitrary, gratuitous regulation; it’s allowing market forces to stimulate the production of a wide variety of innovative foods, from which consumers can choose.  SB 1000 is yet another example of H.L. Mencken’s observation that there is an easy solution to every human problem — neat, plausible, and wrong. 

*** Update: At least some legislators are listening. The California soda warning label bill, SB 1000 failed in the assembly.  


New HHS Study Provides More Evidence ObamaCare Headed For A Death Spiral

A new report from the Dept. of Health and Human Services purportedly showing that the ObamaCare exchanges are improving cost and choice inadvertently provides more data that the exchanges are heading toward an insurance death spiral.  (If you need an explanation of a death spiral, see the definition at the end of this post).

As I’ve noted before:

[Exchange] enrollees’ choice of insurance suggests that the [insurance] pool may be sicker than is optimal for an insurance pool. Sixty-two percent of exchange enrollees have chosen a silver plan. For enrollees at or below 250 percent FPL, silver plans tend to offer the most coverage for the lowest price. For persons under 250 percent FPL, ObamaCare offers help with copays and deductibles, but only if the consumer chooses a silver plan. The actuarial value for a silver plan is 70 percent (that is, a silver plan must, on average, cover 70 percent of a policyholder’s medical claims), but when the subsidies for cost-sharing are included, the actuarial value rises to between 73 and 94 percent. As one writer notes, “Why would someone opt for a silver-level plan over a cheaper bronze or catastrophic-level plan? The most plausible explanation is that the enrollee anticipates incurring significant medical expenses over the coming year, which is to say that he’s not healthy.” 

Thus far the only data we’ve had to support that theory is the inordinate popularity of silver plans among exchange enrollees.  According to last HHS enrollment report, 65 percent of enrollees chose a silver plan.

But today’s HHS report contains this very revealing table:


Notice that the largest average monthly premium subsidy (“tax credit” in HHS’s lingo) is for those who enrolled in silver plans.  That’s telling because bigger subsidies go to those with lower incomes.  If silver plans have the largest average premium subsidy, then those with lower incomes (i.e., below 250 percent FPL) have chosen silver plans at a higher rate than any other plan.  And they have done so at what looks to be a substantially higher rate—the average premium subsidy for silver plans of $276 is more than $40 higher than for any other plan type.

This is most substantial evidence we have yet that the exchanges have attracted a lot of less-than-healthy folks and that the exchanges are likely headed for a death spiral.

Death Spiral:  A death spiral occurs when the young and healthy drop out of the “insurance pool.” This leads to “adverse selection” in which insurance is primarily attractive to those who tend to be older and sicker. If the insurance pool is comprised largely of older and sicker people, then insurance prices naturally rise to cover their costs. That rate increase results in even more young and healthy people dropping their insurance, leaving the pools even older and sicker than before, and so forth.


IRS Says It Can't Find Still More Emails - And It Kept This Fact Secret from Investigators for Months


Turns out, the Internal Revenue Service has been doling out the bad news slowly when it comes to its ability to retain the emails of employees suspected of being up to no good.

From the House Ways and Means Committee today:

Today, Ways and Means Committee Chairman Dave Camp (R-MI) and Oversight Subcommittee Chairman Charles Boustany Jr., M.D. (R-LA) revealed that the Committee's early work into "lost" IRS emails show the problem is much bigger than the IRS initially admitted to.

In addition to Lois Lerner's emails, the IRS cannot produce records from six other IRS employees involved in the targeting of conservative groups. One of those figures is Nikole Flax, who served as Chief of Staff to Steve Miller, who at the time of the targeting was Deputy Commissioner and would later serve as Acting Commissioner of the IRS - a position from which he was fired for his role in the targeting of conservative groups. The timeframe for which Ms. Flax's communications are purportedly unrecoverable covers when the Washington, DC office wrote and directed the Cincinnati field office to send abusive questionnaires, including inappropriate demands for donor information, to conservative groups.

Camp and Boustany also uncovered that the IRS has been keeping secret for months the fact that the Agency lost these critical records. Ways and Means investigators have confirmed that the Agency first knew of the destroyed emails as early as February 2014 - nearly three months prior to newly installed Commissioner John Koskinen telling the Committee the IRS would produce all of Lois Lerner's emails...

Read it all here.


Supreme Court’s Important Unfinished Business

As is the tradition at the U.S. Supreme Court, justices are leaving the release of their decisions on many of the biggest cases of the term until the very end.

After today’s three opinions, there are 14 rulings still left to be revealed before the Court’s term ostensibly ends on June 30.

Among the cases to be decided include the ObamaCare mandate forcing religious businessowners to compromise their faith, the President’s probable unconstitutional use of recess appointment power, free speech around abortion clinics, coercive union fees and police power to search cellphones.

Currently, there are three more scheduled days — the remaining Mondays in June and this coming Thursday — scheduled to release these opinions.

Horace Cooper, the co-chairman of the National Center’s Project 21 black leadership network, noted this remaining large parcel of decisions could contain some of the most important rulings in recent memory:

Over the next two weeks, the U.S. Supreme Court will issue rulings in some of the most critical cases to come before the highest court in the land.

The cases that remain offer the American people an opportunity to understand many of the basic principles of our constitutional system.

From the power of the presidency, the scope of religious rights of corporations to whether police can confiscate your cellphone and read its contents, the U.S. Supreme Court is ultimately going to reaffirm our fundamental rights or push us in a post-constitutional direction.

While most Americans can’t name these individual justices, they will likely have remarkable influence on our liberties and freedoms.

top photo credit: iStockPhoto

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