Last night I was reading AEI president Arthur Brooks’ excellent Wall Street Journal op-ed on the lottery, that seemingly ubiquitous government revenue scheme targeted at the poor, and it brought to mind Horace Mann, the “father of the common schools.” Did Mann pop into my brain because he was also the father of the “Diamond Dollars” scratcher, or “Pick 6 XTRA”? In a way, yes. 

Mann actually hated the unproductive, greed-fueled lottery, which he wrote “cankers the morals of entire classes of the people.” As was the case for seemingly every social ill perceived by Mann, he had a cure for the canker: universal public schooling. Lotteries, he wrote, “await the dawning of that general enlightenment which common schools could so rapidly give, to be banished from the country forever.”

Fast forward to the present day, and what do we have? Roughly 90 percent of school-aged Americans attending public schools—and all children with access to them—while slickly advertised state lotteries pull in $70 billion annually, according to Brooks, with a disproportionate amount coming from low-income Americans who have little chance of breaking even, much less striking it rich.

Contra Mann’s promise, common schooling did not doom the lottery. Far, far from it. Today, perhaps the primary justification for the lottery is that it provides money for the public schools!

Frankly, Mann, who pronounced with assumed authority on everything from proper chewing to the number of “bodies” in the solar system, should have seen this coming. He certainly identified the supposed beneficiaries of lottery proceeds in his day: “the erection of public works,–to build a bridge, a canal, or a church [italics in original].” Mann was especially incensed by the latter, decrying, “When a church is built by a lottery, can there be any doubt which has the best side of the bargain, the Evil Spirit or the Good?”

Today, the “churches” conceived by Mann—the public schools—are themselves enriched by lotteries. Maybe that’s because they could never spread the universal enlightenment that Mann confidently promised. Maybe it is also because, like most of us, those employed by the public schools want as much money as they can reasonably get, and government schemes like the lottery enable them to bring in more.

The Cato Institute’s Lib​er​tar​i​an​ism​.org web site has released a new, online version of The Encyclopedia of Libertarianism.

The Encyclopedia offers “a general guide to the social and political philosophy that today goes by the name of libertarianism,” including several chapters of interest to health policy scholars:

• Abortion, by Wendy McElroy
• Bioethics, by Sigrid Fry-Revere
• Drug Prohibition, by Gene Healy
• Euthanasia, by Sigrid Fry-Revere
• Genetics, by Matt Ridley
• Health Care, by Michael F. Cannon
• Illicit Drugs, by Bruce Benson
• Intellectual Property, by Aaron Steelman
• Laissez-Faire Policy, by Bryan Caplan
• Liability, by Richard A. Epstein
• Market Failure, by Tyler Cowen
• Paternalism, by Will Wilkinson
• Price Controls, by Donald J. Boudreaux
• Psychiatry, by Jeffrey A. Schaler
• Regulation, by Michael C. Munger
• Welfare State, by Michael D. Tanner

In a recent column, AEI scholar Abby McCloskey claims that “[m]ost people on the right and on the left” want government-sponsored paid family leave. McCloskey links to an admiring summary of a 2016 public opinion poll as evidence.

The summary does not provide the associated poll topline (questionnaire), but Morning Consult kindly provided some questions upon request. They included “Do you support or oppose requiring employers to offer paid parental leave for new parents?” and “if the federal government required employers to offer paid parental leave for new parents, how long should that leave be?”

Unfortunately, the poll’s questions are not sound from a psychology of survey response perspective. As analysts know, the question’s language makes an enormous difference in poll results. When people are asked whether or not they would like a particular benefit sans the process or cost, many will respond affirmatively.

But if costs are mentioned, public opinion transforms (see polling on healthcare for example). As a result, polling can be confusing at best and calculated to elicit certain responses at worst. In the first question, the Morning Consult poll does not describe who will be requiring employers to provide paid family leave or how they will do so. It does not mention tradeoffs. In the second question it asks respondents to accept that government is providing paid leave and then pick the length.

Usually it would be hard to know how much the absence of the “whos” or “hows” mattered for the results. But fortunately, Pew Research asked the same questions and made the details explicit.

Specifically, Pew asked whether A) the federal government should require employers to provide paid family leave or B) employers should be able to decide for themselves whether to provide paid family leave. 

Pew found “there is no consensus,” and public opinion was split evenly. Contrary to McCloskey’s summary article which claims political parties unanimously approve of a government mandate for paid family leave, Pew described public opinion as being divided along political lines. Democrats were the only group where a majority strongly favored the lightest of paid family leave measures; using government tax credits as an incentive for employers to provide paid leave. 

Far from being a top policy priority, another recent Pew poll suggests that “expanding access to paid family and medical leave ranks at the bottom of a list of 21 policy items.” 7 of 10 workers (69%) are at least somewhat satisfied with the benefits their employer already provides, and Americans prioritize other issues over creating an entitlement to a benefit most already receive. 63% of workers who took parental, family, or medical leave say their employer paid for part or all of it.

It seems that the public is divided after all. That said, do Americans like or want paid family leave benefits? Of course, and when asked they say so. But the right question is not whether they like or desire leave, but whether they desire federal involvement. The answer is often “no.”

The rising opioid overdose death rate is a serious problem and deserves serious attention. Yesterday, during his working vacation, President Trump convened a group of experts to give him a briefing on the issue and to suggest further action. Some, like New Jersey Governor Chris Christie, who heads the White House Drug Addiction Task Force, are calling for him to declare a “national public health emergency.” But calling it a “national emergency” is not helpful. It only fosters an air of panic, which all-too-often leads to hastily conceived policy decisions that are not evidence-based, and have deleterious unintended consequences.

While most states have made the opioid overdose antidote naloxone more readily available to patients and first responders, policies have mainly focused on health care practitioners trying to help their patients suffering from genuine pain, as well as efforts to cut back on the legal manufacture of opioid drugs.

For example, 49 states have established Prescription Drug Monitoring Programs (PDMPs) that monitor the prescriptions written by providers and filled by patients. These programs are aimed at getting physicians to reduce their prescription rate so they are not “outliers” in comparison with their peers. And they alert prescribers of patients who have filled multiple prescriptions within a given timeframe. In some states, the number of opioids that may be prescribed for most conditions is limited to a 7‑day supply.

The Drug Enforcement Administration continues to seek ways to reduce the number of opioids produced legally, hoping to negatively impact the supply to the illegal market.

Meanwhile, as patients suffer needlessly, many in desperation seek relief in the illegal market where they are exposed to dangerous, often adulterated or tainted drugs, and oftentimes to heroin.

The CDC has reported that opioid prescriptions are consistently coming down, while the overdose rate keeps climbing and the drug predominantly responsible is now heroin. But the proposals we hear are more of the same.

We need a calmer, more deliberate and thoughtful reassessment of our policy towards the use of both licit and illicit drugs. Calling it a “national emergency” is not the way to do that.

AEI scholar Abby McCloskey’s recent column on paid family leave argues that just “12 percent of private-sector employees have access to paid family leave from their employer.” For McCloskey, this is one of many reasons that the federal government should create a paid family leave entitlement program.

The 12 percent figure surely sounds appallingly low. In fact, it is so low that it seems suspect: it doesn’t match well with real-life experience or casual observation. The figure also doesn’t match with data from nationally representative surveys. For example, 63 percent of employed mothers said their employer provided paid maternity leave benefits in one national study, a 50 percentage point difference from the most recent BLS figure.[1]

So what gives? It seems many U.S. women take paid parental leave, but the Bureau of Labor Statistics (BLS) doesn’t count it. The BLS requires paid family leave be provided “in addition to any sick leave, vacation, personal leave, or short-term disability leave that is available to the employee.” This means that when employees take paid leave for family purposes, it doesn’t count if it could have been used for another purpose. 

In the real world, parents with conventional benefit programs often save and pool paid personal leave, vacation, sick leave, and short-term disability in the event of a birth or adoption. On average, employees with five years of service are provided 22 days of sick and vacation leave. A majority of private-sector employees can carry over unused sick days from previous years, which adds to the tally. Meanwhile, the median short-term disability benefit is 26 weeks for private-sector workers; six to eight weeks can be used toward paid maternity leave.

These benefits do exactly the same thing as paid family leave. As Human Resources Inc. puts it, “family-leave is usually created from a variety of benefits that include sick leave, vacation, holiday time, personal days, short-term disability…” And although not all employers, especially small businesses, have official paid family leave policies, “Many employers are flexible and can work out an agreement with you.” Benefits that aren’t spelled out in the company manual are surely undercounted by BLS figures, too.

Paid leave doesn’t always fit neatly under the BLS’s survey categories for other reasons. Unconventional benefit packages, like consolidated paid leave (or PTO banks) allow employees to use paid leave for any reason, family or otherwise. Consolidated paid leave is on the rise; the BLS reports that 35 percent of private-sector employees receive it. In some industries, more than half of employees receive this flexible benefit.

Unlimited paid leave plans are also growing in certain industries. These plans allow employees to take as much leave as they want, whenever they want, assuming they meet performance expectations. But unlimited and consolidated paid leave don’t provide paid family leave separately, so neither count.

As a result, BLS figures seem to grossly underestimate paid family leave availability. BLS methods penalize employers that provide flexible benefits, by pretending their benefits don’t exist.

This helps to explain why BLS figures differ dramatically from other surveys. In spite of that, don’t expect government-sponsored paid leave advocates to update their figures any time soon.

Leaders at all levels of government and civil society are alarmed at the continued rise, year after year, in the death rate from opioid overdose. The latest numbers for 2015 report a record 33,000 deaths, the majority of which are now from heroin. Health insurers are not a disinterested party in this matter.

Cigna, America’s fifth largest insurer, recently announced it has made good progress towards its goal of reducing opioid use by its patients by 25% by mid-2019. To that end, Cigna is limiting the quantities of opioids dispensed to patients and requiring authorizations for most long acting opioid prescriptions. Cigna is encouraging its participating providers to curtail their use of opioid prescriptions for pain patients and is providing them with data from monitoring the opioid use patterns of their patients with an aim towards reducing abuse.

In a Washington Post report on this announcement Cigna CEO David Cordani said, “We determined that despite no profit rationale—in fact it’s contrary to that—that societally we needed to step into the void and we stepped in pretty aggressively.”

No profit rationale?

Paying for fewer opioids saves the insurer money in the short run. And opioids have become costlier as “tamper-resistant” reformulations, encouraged by the FDA, have led to new patents allowing manufacturers to demand higher prices.

There is growing evidence that, as doctors curtail their opioid prescriptions for genuine pain patients, many in desperation seek relief in the illegal market, exposing them to adulterated opioids as well as heroin. For the same reason, recent studies on the effect of state-based Prescription Drug Monitoring Programs (PDMPs) suggest they have not led to reductions in opioid overdose rates and may actually be contributing to the increase. It is reasonable to be skeptical that Cigna’s internal prescription drug monitoring program will work any differently.

Further research suggests the community rating regulations of the Affordable Care Act may be contributing to the problem. The ACA requires insurance companies to sell their policies to people who have very expensive health conditions for the same premiums they charge healthy people. At the same time, the ACA’s “risk-adjustment” programs systematically underpay insurers for many of their sickest enrollees. The overall effect is that the ACA penalizes insurers whose networks and drug formularies are desirable to those who are sick. Insurers respond to this disincentive by designing their health plans to have with provider networks, drug formularies, and prescription co-payment schedules that are unattractive to such patients, hoping they will seek their coverage elsewhere. This “race to the bottom” between the health plans results in decreased access and suboptimal health care for many of the sickest patients.

Researchers at the University of Texas and Harvard University, in a National Bureau of Economic Research working paper, show “some consumers are unprofitable in a way that is predictable by their prescription drug demand,” and “…Exchange insurers design formularies as screening devices that are differentially unattractive to unprofitable consumer types,” resulting in lower levels of coverage for patients in those categories.

The researchers rank drug classes by net-loss to the insurer (per capita enrollee spending minus per capital enrollee revenue). Opioid antagonists, used to treat opioid addiction, exact the third highest penalty on insurers, about $6,000 for every opioid antagonist user. (See Table 2.)

This suggests that patients suffering from opioid dependency and/​or addiction (there is a difference) are victims of the race to the bottom spawned by the ACA’s community rating price controls.

Thus, the opioid overdose crisis and the ACA mandates—especially community rating—combine to make the “perfect storm.” Insurers team up with state and federal regulators to curtail the prescription of opioids for chronic pain patients, leading many to suffer needlessly and driving some, in desperation, to the illegal drug market and the risk of death from overdose. Meanwhile, the ACA penalizes insurers who help patients seeking rescue from the torment of dependency and addiction.

Vox’s Dylan Scott offers “An oral history of Obamacare’s 7 near-death experiences.” It’s a well-balanced take on how close the Affordable Care Act and ObamaCare—they are different animals—have come to oblivion.

Scott includes an excerpt of an email I sent him on his original, planned theme of “ObamaCare’s nine lives.” But I thought it might be worthwhile to include my entire response to him. I have lightly edited my email for clarity, added two illegal acts I had forgotten (#5 and #7), and added hyperlinks to useful references.

Just nine? The premise is inapposite, though. 

Jonathan Gruber was right: had the public known what the Affordable Care Act does, it never would have passed, because even more Democrats would have voted to kill it. ObamaCare keeps surviving not because it has nine lives, but because the executive and judicial branches keep rewriting the Affordable Care Act, outside the legislative process, to save it from constitutional and political accountability.

These unconstitutional and illegal actions began before the ink was dry on Obama’s signature. They include:

1. Allowing Congress to remain in the FEHBP from 2010 until 2014;
2. The bevy of exemptions Sebelius issued unions and other firms from various regulations;
3. The threats Sebelius made to insurers who spoke publicly and truthfully about the cost of those regulations; 
4. Sebelius soliciting funds for Enroll America from companies she regulates;
5. Sebelius raiding the Prevention and Public Health Fund to the tune of $454 million to fund federal Exchanges; 
6. The Supreme Court rewriting the individual mandate in 2012; 
7. Sebelius gutting the Supreme Court’s Medicaid ruling by coercing states to implement parts of the Medicaid expansion the Court made optional;
8. Obama’s illegal “if you like your health plan” fix/grandmothered-plans exemptions;
9. The IRS issuing subsidies through federal exchanges;
10. The Supreme Court upholding ObamaCare’s subsidies and penalties in federal-Exchange states;
11. The Obama administration making illegal CSR payments;
12. The Obama administration illegally diverting reinsurance payments from the treasury to insurance companies;
13. The Obama administration declaring Congress to be a small business; 
14. The Obama administration giving members of Congress an illegal $12,000 premium contribution to their SHOP premiums;
15. The Trump administration continuing to make illegal CSR payments;
16. The Trump administration continuing to give Congress an illegal exemption from the ACA…

Etc., etc.

It’s not that Obamacare has nine lives. It’s that ObamaCare has 90 or 900 or 9,000 committed ideologues who are willing to violate the law to protect it from the voters. 

What we have left is no longer the law Congress enacted. The ACA was a legitimate law, duly passed by Congress. ObamaCare is an illegitimate law that no Congress ever passed or ever could have passed. 

The ACA is dead. Long live ObamaCare.

Absent these unlawful actions, Republicans’ recent attempt to repeal ObamaCare would have succeeded.

Years ago.