Category Archives: The Nanny State

The Brits Have Finally Lost It

…why don’t they just make stabbing illegal?

Plans to replace the traditional pint glass with one made of shatter-proof plastic will not be accepted by drinkers, the pub industry has warned.

The Home Office has commissioned a new design, in an attempt to stop glasses being used as weapons.

Official figures show 5,500 people are attacked with glasses and bottles every year in England and Wales.

“There’s going to be quite a push behind this in terms of the Home Office.”

The Home Office Minister, Alan Campbell, said the redesign could make a significant difference to the number of revellers who are injured.

He said: “Innovative design has played an important role in driving down overall crime, including theft, fraud and burglary.

“This project will see those same skills applied to the dangerous and costly issue of alcohol-related crime and I am confident that it will lead to similar successes.”

When I first came across this on Lowering The Bar, I thought it must be false. I thought even the Brits would avoid pushing themselves into a reductio ad absurdum. They were warned about the slippery slope, and responded by saying that slippery slopes are dangerous and it’s a lot safer to be all the way down at the bottom!

Stories like this almost make me feel like my home, California, is free!

The Nanny State In Action — School District Bars Kids From Riding Bikes To School

I wouldn’t be able to do it anymore because district boundaries in my hometown changed a long time ago, but when I was a kid I used to ride my bike to school nearly every day that weather permitted it.

It’s a good thing I didn’t live in Saratoga Springs, New York:

SARATOGA SPRINGS — The first day of school, already a happy and trying event for any student, saw a little additional stress for Maple Avenue Middle School student Adam Marino.

Marino and his mother, Janette Kaddo Marino, left for school by bicycle on Wednesday morning, as they often do in good weather, despite a phone call placed to students’ homes by school officials, asking parents not to allow students to walk or ride bikes to school.

(…)

One section of the school policy states: “The Board of Education forbids the riding of bicycles by students to and from Maple Avenue Middle School.” Another section also prohibits riding to elementary schools.

In an apparent contradiction, a third section states: “Secondary school pupils may ride their bicycles to school and shall park them in the racks provided.”

The policy was written when the Maple Avenue school opened in 1994, and has never before been reviewed, Superintendent of Schools Janice White said.

Remember, they’re from the government and they’re here to help you.

Are Health Insurance Mandates Constitutional ?

After a piece last month in the Washington Post, which I wrote about here, lawyers David Rivkin and Lee Casey are back with a piece in the Wall Street Journal expanding on their argument that a requirement that every American buy health insurance would be unconstitutional. This time, they argue that, even under current commerce clause precedent, there is no Constitutional authority for a Federal health insurance mandate:

The Supreme Court construes the commerce power broadly. In the most recent Commerce Clause case, Gonzales v. Raich (2005) , the court ruled that Congress can even regulate the cultivation of marijuana for personal use so long as there is a rational basis to believe that such “activities, taken in the aggregate, substantially affect interstate commerce.”

But there are important limits. In United States v. Lopez (1995), for example, the Court invalidated the Gun Free School Zones Act because that law made it a crime simply to possess a gun near a school. It did not “regulate any economic activity and did not contain any requirement that the possession of a gun have any connection to past interstate activity or a predictable impact on future commercial activity.” Of course, a health-care mandate would not regulate any “activity,” such as employment or growing pot in the bathroom, at all. Simply being an American would trigger it.

Article 1, Section 8, Clause 3 of the Constitution sets forth Congresses commerce power:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

Strictly construed the Commerce Clause would not seem to be that broad of a grant of power. After all, the chief ill that it was aimed at was to allow goods and business to flow easily between the respective states, something that was not possible under the Articles of Confederation. However, the Supreme Court has interpreted the clause so loosely that it has gone far beyond the point where it actually imposed any limits on Congressional authority. For example, in 1942, in Wickard v. Filburn, the Supreme Court ruled that a farmer who grew wheat on his own land for his own consumption affected interstate commerce and was therefore subject to the regulations of Agricultural Adjustment Act of 1938. Once that happened, the door was open to allow Congress to use the Commerce Clause to justify extensions of Federal power into areas that the Founding Fathers would never have conceived it would be exercised.

The post-Wickard history of the Commerce Clause has been one of expanding federal power and increasing regulation of activities that have only a tangential relationship to interstate commerce. But there have been some bright spots recently.

As the article notes, in 1995, the Supreme Court ruled in United States v. Lopez that the commerce clause could not be used to justify a Federal Law that made it a crime to carry a gun with a certain distance from a school. In 1996, it ruled in Seminole Tribe v. Florida, that the Commerce Clause did not give the Federal Government the right to abrogate the soverign immunity of the state. And, most notably, in a dissent in Gonzalez v. Raich, the 2005 case that upheld the supremacy of Federal drug laws over state medical marijuana laws, Justice Thomas said the following:

Respondent’s local cultivation and consumption of marijuana is not “Commerce … among the several States.” Even if a grower were to incorperate a grow room design in the cultivation process, as long as it is local then it is not automatically “Commerce among the several states”.
Certainly no evidence from the founding suggests that “commerce” included the mere possession of a good or some personal activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.

Given this trend, the a Constitutional challenge to an individual mandate would seem to be a potentially successful argument. However, as Eugene Volokh pointed out in a post responding to the original WaPo article, that isn’t necessarily the case:

As much as I oppose the various health care reforms promoted by the Obama Administration and current Congressional leadership (and as much as I would like to see a more restrictive commerce clause jurisprudence), I do not find this argument particularly convincing. While I agree that the recent commerce clause cases hold that Congress may not regulate noneconomic activity, as such, they also state that Congress may reach otherwise unregulable conduct as part of an overarching regulatory scheme, where the regulation of such conduct is necessary and proper to the success of such scheme. In this case, the overall scheme would involve the regulation of “commerce” as the Supreme Court has defined it for several decades, as it would involve the regulation of health care markets. And the success of such a regulatory scheme would depend upon requiring all to participate. (Among other things, if health care reform requires insurers to issue insurance to all comers, and prohibits refusals for pre-existing conditions, then a mandate is necessary to prevent opportunistic behavior by individuals who simply wait to purchase insurance until they get sick.)

At best then, this would seem to be a very close call and, given almost 200 years of Supreme Court precedent it seems unlikely that a Court would overturn something as far reaching as a health care reform plan — although as the National Recovery Administration learned in 1935, it’s not impossible.

Hey Ezra, Strawman Much?

Ahh, the infamous strawman. Take one aspect of an argument, assume it is not part of a cohesive whole, and argue against it as if it negates everything else at hand. I.e. libertarians and conservatives argue that capping drug prices just MIGHT reduce drug innovation, and Ezra Klein acts as if we’d keep everything else equal in the system:

For a long time, I took questions about stifling innovation very seriously. So did a lot of liberals. But then I realized that the people making those arguments wanted to do things like means-test Medicare, or increase cost-sharing across the system, and generally reduce costs in this or that way, which would cut innovation in exactly the same way that single-payer would hypothetically cut innovation: by reducing profits.

I also found that I couldn’t get an answer to a very simple question: What level of spending on health care was optimal for innovation? Should we double spending? Triple it? Cut it by 10 percent? Simply give a larger portion of it to drug and device manufacturers? I’d be interested in a proposal meant to maximize medical innovation. I’ve not yet seen one.

It turned out that concerns about innovation weren’t really about innovation at all. They were just about attacking universal health care ideas of a certain sort. Which is why I stopped taking them seriously.

No libertarian in the world will argue that government spending can’t achieve certain goals. After all, government spending got us to the moon. If you set the goal of American society, as Kennedy did, as getting to the moon within a decade, then you forcibly take the money to pay for the goal [since Americans weren’t exactly going there of their own accord], you can probably get there.

Likewise, if government really put its mind to drastically advancing medical innovation, and threw out, say, $50B a year for drug research to stem the growth of most types of cancer, I’ll bet within two decades they might have results. While money doesn’t exactly solve everything, government subsidies can certainly accelerate development. Granted, that cancer research might be at the expense of heart disease research, and AIDS research, and diabetes research, and just about everything else [excepting penis enlargement research, of course, because that’s always a growth industry, especially when it comes to Penis Enlargement Pills].

But now I’m getting away from the point. Why is this a strawman? Because opponents to gov’t healthcare view the death of medical innovation as one bad side effect of a wider bad policy, not the most important argument against gov’t healthcare.

Look at it this way. We don’t argue that there is no innovation in the digital music player industry because gov’t doesn’t spend enough. After all, we’ve got all different flavors of iPods, the new Zune, all manner of knockoff players and tiny upstarts, not to mention the fact that just about every new cellphone or car stereo can play MP3’s. Ten years ago, when I was in college, MP3’s were limited to those of us savvy enough to navigate Napster, hook our computers up to our stereos, and had a fast enough internet connection to make the whole deal worthwhile. Today MP3 players are ubiquitous and digital music threatens to destroy the entire existing business model of music production.

I’m not going to address the conservative rebuttals, but I’ll take a look at this from a libertarian perspective. Libertarians aren’t opposed to profits. We are not opposed to competition. We are not opposed to market-based prices that may, in some cases, not cover the costs of drug development. We don’t view medical innovation as a simple question of “should WE spend X or 2X or 3X?” Not because we don’t have an opinion on optimal spending — we may or may not — but because we oppose to the WE. We implies collective action, and usually implies forced collective action.

The WE, of course, has a lot of unintended consequences to it. If the WE becomes too large [cough]medicare[/cough], it tends to crowd out private spending. When private spending is crowded out, prices become opaque. They cease to be a clear sign of market value and cease to be a proper incentive for producers. As I said above, $50B a year in research money would entice quite a few drugmakers to focus R&D onto cancer. But is that the optimal amount to spend? Would that be useful or wasteful? What is the opportunity cost of pulling that money out of the economy through taxation and redistributing it through the government? All these questions distort the free market, and when you try to distort the free market you end up with problems.

There are two SIGNIFICANT government distortions specifically into drugs: the patent scheme and the FDA.

The FDA:

Simply put, the FDA’s job is to restrict access to medicine until in meets very stringent guidelines. The doctrinaire libertarian position on the FDA is that it needlessly delays medicine that has some efficacy and takes away freedom of choice from individuals who may wish to take personal risks by purchasing that medicine despite the FDA’s lack of recognition.

The doctrinaire libertarian position is a moral position on individual choice, but the economic case is much simpler and stronger. FDA regulation artificially raises the cost of creating new medicines. If your R&D division knows that of all the medicines they research, only 40% will be effective, and only 10% will be approved through FDA trials, you know that 75% of effective drugs they create cannot be purchased. This means that they must more than double the price of drugs to cover R&D on those which wouldn’t be effective, and then quadruple the price beyond that for those which would have been effective but not meet FDA approval. Prices charged for drugs are dependent as much on covering the cost of failure as the cost of success.

Patents:

From a doctrinaire libertarian perspective, you can go two ways on patents. First is that intellectual property isn’t property, and patents are simply government distortion into the market that should be distorted. I like the argument, but even as a doctrinaire libertarian, I’m not far enough behind the anti-IP program to defend it (see mises.org for that one). The opposite (yet still doctrinaire libertarian) argument is that intellectual property should not be arbitrarily time-limited by the government, and that the patent protection time is too short.

The second argument is an explanation for the price of drugs. When you develop a new drug, have to recoup the development & testing costs of that drug, need to recoup all the development costs of the failed drugs, you need to forecast the expected use of that drug between the time it launches and the time your patent expires. Once that patent expires, you’re fighting generics for market share. If you think that 10,000 people per year might need your drug, and you have patent protection for 5 years, you know what price you need to set to recoup your investment and make a profit. If your patent protection extends for 10 years, though, you can set the price at roughly 1/2 the level and still make your profit.

Either way, from an economic standpoint the extension of patent protection might reduce costs and improve pharmaceutical innovation. Reducing patent protection might increase short-term costs (reducing them long-term) but at the expense of pharmaceutical innovation. There are trade-offs and issues no matter what you do.

The solution:

Frankly, the solution isn’t to ask what WE should spend on health care or medicine, just as WE don’t ask what WE should spend for iPods, HDTV’s, heads of lettuce or pickup trucks. The difference is that in those products, we have a functional market. In a functional market, competition and choice lead to efficiency and an optimal mix of innovation vs. price.

The solution is NOT price controls. Economic history shows that price controls lead to shortages.

The solution is NOT rationing. Rationing doesn’t control prices but controls expenditures (unit volume). Rationing increases prices and/or leads to shortages.

The doctrinaire libertarian solution is to reduce the role of the FDA and put more responsibility on the individual to choose health care options, and to ensure that intellectual property laws are set optimally to protect innovation. The free market is known for reducing prices and increasing innovation. Perhaps we should have more of this “free market” thing.
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AARP Ad: Opponents of ObamaCare Oppose “Health Care Reform”

The “Ambulance Commercial” from AARP claims that the “special interest groups” are “trying to derail” the healthcare debate. Those who oppose “reform” are “spreading myths” about rationing of care. In case you’ve missed it, here’s the ad:

One of the things that really makes me angry about this debate is the way groups like AARP, the Obama Administration, and the Democrat Party use straw man arguments to characterize those of us who oppose government run healthcare are “anti-reform” or happy with the system the way it is. Nothing could be further from the truth.

I’m sure there are some who are GOP political hacks out there who oppose ObamaCare but would have no problem supporting RomneyCare or whatever variation of government healthcare McCain would have been pushing had he won the presidency. I get that. But despite what Rachel Maddow, Kieth Oberman, or any of these other Left-wing talking heads would have you believe, there actually are legitimate reasons to fear ObamaCare and not everyone who opposes it is not some sort of Right-wing lunatic.

So who is really spreading the “myths” about ObamaCare?

To be fair, I’m pretty sure it’s not the intention of Democrats to create healthcare rationing. Maybe proponents of the bill claim such things as “death panels” to be myths because such panels of bureaucrats are not part of the plan per se. Perhaps what the fans of big government do not understand is that rationing is inevitable, whether or not rationing is intended. If Red Lobster decided to serve steak and lobster for “free” to the general public every Saturday, one would imagine that there would be lines around the block and Red Lobster would run out of steak and lobster very quickly on Saturdays (and not everyone who stood in line would receive their free food).

The same is true for healthcare or any other product. If suddenly some 50 million uninsured individuals suddenly have access to “free” healthcare along with the remaining 250 million with no increase in the supply of healthcare providers, there will be shortages. Whenever there is a shortage of a product or service in a government controlled program, rationing is the only way to meet the needs for the greatest number. In other words, bureaucrats make the decision regarding who receives healthcare and who does not. The most likely choice will be that the elderly will be asked to sacrifice themselves for the good of “more productive” individuals (i.e. tax payers). This very phenomenon is already happening with vital organ transplants in the U.S. and around the world (with the notable exception of Iran of all places!).

But what is even more galling about the AARP ad than the complete ignorance regarding supply and demand is the notion that those who oppose ObamaCare are anti-reform. Just because some of us oppose ObamaCare does not make us anti-reform but simply anti-government healthcare. There are good free market approaches to health care reform; Cato Institute has an entire website dedicated to such approaches . I’m sure Dr. Ron Paul has some ideas and many other free market individuals as well but AARP, the Democrat Congress, nor the Obama Administration want to consider these approaches.

Couldn’t we just as easily say that they are anti-healthcare reform? If anyone is “derailing” the debate it would be AARP and their special interests.

If AARP believes “special interests” are obstacles to a quality healthcare system, just wait until they get their wish and politicians get between the patients and their doctors.

For those who would like to see the free market reforms Cato proposes, click on the banner below.

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