Philadelphia Reflections

A Toast to Doctor Franklin

Benjamin Franklin

Benjamin Franklin's formal education ended with the second grade, but he must now be acknowledged as one of the most erudite men of his age. He liked to be called Doctor Franklin, although he had no medical training. He was given an honorary degree of Master of Arts by Harvard and Yale, and honorary doctorates by St.Andrew and Oxford. It is unfortunate that in our day, an honorary degree has degraded to something colleges give to wealthy alumni, or visiting politicians, or some celebrity who will fill the seats at an otherwise boring commencement ceremony. In Franklin's day, an honorary degree was awarded for significant achievements. It was far more prestigious than an earned degree, which merely signified adequate preparation for potential later achievement.

And then, there is another subtlety of academic jostling. Physicians generally want to be addressed as Doctor, as a way of emphasizing that theirs is the older of the two learned professions. A good many PhDs respond by rejecting the title, as a way of sniffing they have no need to be impostors. In England, moreover, surgeons deliberately renounce the title, for reasons they will have to explain themselves. Franklin turned this credential foolishness on its head. Having gone no further than the second grade, he invented bifocal glasses. He invented the rubber catheter. He founded the first hospital in the country, the Pennsylvania Hospital, and he donated the books for it to create the first medical library in the country. Until the Civil war, that particular library was the largest medical library in America. Franklin wrote extensively about gout, the causes of lead poisoning and the origins of the common cold. By inventing bar soap, it could be claimed he saved more lives from the infectious disease than antibiotics have. It would be hard to find anyone with either an M.D. degree or a Ph.D. degree, then or now, who displayed such impressive scientific medical credentials, without earning -- any credentials at all.

Roberts the Second

President George W. Bush nominated John Roberts to be Chief Justice of the U.S. Supreme Court in 2005. Since then, the Chief's administrative changes to the court and the whole court system have been slow but methodical. To the extent the Chief Justice has control of the matter, Roberts has been taking steps which make the Court into a more thoughtful branch of the Federal Government, ultimately making it more powerful. His first step was to reduce the number of cases considered each year, constraining them to conflicts between lower jurisdictions, unless otherwise mandated. This year, the number of cases heard is about eighty, or only half of the previous numbers. The policy lets unconflicting Appellate judgments stand. A second court must disagree with the first one, for the Supreme Court to enter the case.

The so-called Obamacare case, (NFIB v. Sebelius), meets this conflict-between-jurisdictions standard, but is notable for other innovations. The case was nationally broadcast as a live slide show. It heard arguments lasting three days instead of the usual single hour, and of course, it broke new substantive ground in a case of national interest. The decisions will now get more press attention; but this relatively rapid evolution toward a national debating contest, through modified Court procedure, is more important than it looks. It would be saying too much to claim the whole nation now fully understands its Constitution of enumerated powers, but surely the citizens who have only recently learned something about it must number in the millions. Before this case, many law school graduates might have had difficulty describing the design of the federalized system in a plausible dinner-table conversation. It's not yet clear where John Roberts is going, but he is surely trying to bring the public along with him.

During the semi-televised arguments, I was at first impressed with the rapid-fire exchanges between Justices and litigators about the operation of health insurance. Some people are born with high-speed brains and high-speed speech apparatus; no doubt, such people are sought after to represent others in court. But after practicing Medicine for sixty years and writing books about health insurance, I recognized that several rapid-fire responses by the attorneys were confident but off-target. Frankly, if you only have a few minutes but many points to make, and have to say them before someone interrupts, you would almost have to be a circus freak to manage. This is quite unnecessary, no matter how entertaining it may be to other lawyers. There seems no reason why the questions cannot be submitted in writing, sometimes employing experts on the specific points, and allowing enough time without interruption to devise a thoughtful answer. At present, it seems to matter more what the litigating attorney will agree to, than what is the fact. The outcome of cutting a litigant off after he says, "Yes, your honor, but.." is now only to establish whether both sides agree on a point; just why they agree or disagree is not even sought, let alone disregarded. It would seem useful to know Justice Thomas' reasons for abstaining from questions during oral arguments, for a different sort of example. So, it is easy to imagine that John Roberts has some thoughtful goals in modifying Supreme Court traditions, and equally understandable if jurists of this distinction become irritated by suggestions from the peanut gallery. It is thus fitting that we all hold back and first watch where the varsity means to take us. But allowing the public to express an opinion, is not the same as lobbying for it.

The Obamacare Act was about 2600 pages long, and two years after the President signed the bill, more than half of the necessary regulations remain to be written. The Law is "not severable", which is to say individual pieces of it cannot be attacked in court, without potentially upsetting decisions made on other portions. As a consequence, both the good and bad parts could endure for a long time to come. Or, the whole thing could suddenly sink from sight, relatively quickly. If the Justices can tolerate it, this legislation with many "moving parts" could be in the courts for a long time to come. So, Justices will then find the rule Roberts has made, of only accepting conflicts between the jurisdictions, protects their time and patience. But in doing so it will shift most final judgments into the hands of the lower, appellate courts. The legal profession will like this quite a lot. It will be like the gratifying situation said to prevail when a commanding General decides to retire -- everybody down the line could get promoted one notch.

By artfully selecting cases to argue, there were here four points open to the decision. Only two of them eventually had bearing on the final outcome of this case, but the whole issue is not necessarily concluded. The first decision got the most attention, deciding that the penalty for not having health insurance could be read as just a tax, and therefore was legal for Congress to use as a Constitutional basis for making health insurance mandatory, as Roberts declared the "Commerce clause" was not. The distinguishing feature of a Congressional exaction which is "just a tax" appears to be whether it exceeds the expenditure intended; if it exceeds the expenditure it would presumably be punitive. Nothing had seemed more important to the Founding Fathers than to expand the ability of the national government to impose taxes to service war debts. To truncate this wish of George Washington and Robert Morris into a short-cut, "Congress has the right to tax", or conversely to expand its confining language into "Congress has the right to tax in order to make private health insurance compulsory" just points up that the only real purpose of taxes in Washington's day was to wage war, and that the purpose of allowable taxes probably would have been defined if other purposes had been foreseen. Someone could usefully point out that what the Constitution really means is that Congress has the right to tax for "defense and the general welfare", and challenge anyone to argue otherwise. One sees the clever hand of Gouverneur Morris fuzzing up that argument; are we to ignore the fungibility of money and ask whether Congress may spend money on the general welfare only if it is general? How about earmarks, for example, are they all for the general welfare?

However, to turn a blind eye toward interesting issues is apparently a price that must be paid for obtaining the right for the Chief Justice to write the majority opinion, which eventually slips in some language (in legal language, an obiter dictum) to the effect that , of course, you couldn't use the Commerce Clause to do that. Getting Justice Ruth Ginsburg to sign that will eventually sound like the box John Marshall constructed in Marbury v. Madison. If that obiter dictum is as heat-resistant as the opinions of the first Justice Roberts in Franklin Roosevelt's court-packing effort, then the Commerce Clause is likely to be off-limits for a long time. Of course, if Chief Justice Roberts had joined the other four conservatives he would still have been able to write the majority opinion, but in the opposite direction. Except of course for that inevitable political accusation: There you go again, you 5-4 conservatives.

The second decision, in this case, is the sleeper. Congressional managers in charge of writing the bill had finally decided they had no way to cover 40 million uninsured people, except by diverting fifteen million of them into what is acknowledged to be the absolutely worst part of the American medical system, the state Medicaid programs. And because many States Rights advocates were in charge of state Governor's offices, the Congressional bill-writers added what is now a fairly familiar prod to cooperation. That is, if a state refuses to take the extra Medicaid patients, it will lose all federal funds for existing clients of state Medicaid. This sort of coercive provision has become so standard in highway bills and other federal programs operating at the state level, that it was largely unnoticed in the 48 hours the Congress was given to examine 2600 pages of legislative provisions. This, however, is blackmail, said John Roberts, quite unallowable under the defined separation of powers of the Constitution, between the state and federal levels of government. Furthermore, if some state decides to accept the penalty, it could close the existing program for the poor and accept the subsidy for the middle class, thus enhancing their revenues and reducing their obligations to the poor. Congress must now devise new strategies for suggesting federal programs to the states, and probably will do so. But the financial blackmail strategy now has a permanent black eye, with a skeptical public eye on the alert for it. The ironic conclusion of all this comes from the Congressional Budget Office, which predicts we will end up with 30 million uninsured persons, anyway.

What's awkward about this was immediately pointed out by attorney Richard Epstein: it ignores the century-old precedent set by Chief Justice Taft. Writing about a Child Labor law, Taft created a Supreme Court precedent that the Constitutional taxing power of the national government may not be used to implement what cannot be implemented directly. We can now see an example within the borders of a single case, where the Constitutional taxing power provision is used to indicate an otherwise impermissible Obamacare, and a few pages later its use is forbidden in the case of Medicaid in order to accomplish a forbidden coercion. Locating the two issues in the same case decision helps make the distinction between using the taxing power for revenue, and using it to coerce obedience; the distinction grows as the magnitude of the tax grows, particularly after it exceeds the intended government expenditure. What is not emphasized is the basis for Chief Justice Roberts reversing the precedent set by Chief Justice Taft on the same topic a century earlier. He did it with the Obiter dictum, and yet he didn't exactly do it. The four liberal Justices who co-signed the decision are not in a position to dispute it, while the four conservative Justices may not wish to. In either direction, however, the vote of the current Chief Justice appears to be both decisive and subtle.

It remains to be seen whether the 'tax, not commerce' strategy was clever. If the tax approach proves to be durable, it presumably extends to a wide range of legislation since Roosevelt's New Deal. Already, its awkward features have emerged in renaming portions of Obamacare into Chapter 48 of Subtitle D of the Internal Revenue Code of 1986 (!). Any law student who tries to look that up is going to have a frustrating time. But on the other hand, sometimes you win by losing. If it should somehow not be a tax, it has already been excluded from the Commerce Clause, so it has no hook left in the Constitution on which to hang it. There's something in this whole wrangle which resembles the position of Germany and Japan after the Second World War. In spite of losing that war, those two nations seem to have prospered better than England and Russia, who lost their empires but are said to have won the war .

Gashouse Gang

Electrician Union Logo

A couple of lawyers from Community Legal Services dropped around to the Franklin Inn club, the other day. Someone in the club thought they might be able to shed some light on the recent sale, or rather frustrated sale, of the Philadelphia Gas Works and invited them over. They told us what they knew, but other luncheon guests came away with the impression they don't know the full scoop. It's for sure the newspapers don't know much, either.

Philadelphia's Gas Company

Philadelphia's Gas Company was started in 1830 and acquired as a City property in 1860. Before that time, an occasional mansion would have its own private gas house, fermenting gas for central lighting and heating, and apparently the scene of other carryings-on, leading to the derogatory title of "Gas House Gang". That was long before any thought of city corruption, or politics, or even professional Baseball. For nearly a century, municipal gas works would produce "Manufacturer's Gas" by fermentation of various discarded materials, but when the "Big Inch" pipeline was converted to natural gas at the end of the World War II, at least people stopped committing suicide with it (natural gas didn't work), and most cities sold the gas company to private owners. Gas work has long had the reputation of featherbedding and corruption, selective collection of gas bills, and a fair amount of graft. Perhaps much of this is a legend of the past, but I wouldn't bet much money on it. It suddenly got into the news lately, when a Connecticut company made a cash offer for PGW, the local gas company. The Mayor liked the idea and brought it to City Council, which refused even to consider it. The newspapers had recently had a run-in with Mr. Dougherty, the President of the Electricians Union, over the conviction of the union for arson of the Chestnut Hill Quaker Meeting House, and there's no doubt the news coverage of the Gashouse sale offered the public a dim perception of City Council politicians and their pro-union behavior.

John Dougherty

Our lawyer guests felt this was a little unfair. The Mayor did request a hearing on the matter, but he is not a member of City Council and needed a member to introduce the topic for discussion. After the Council President expressed an unfavorable position, no other member of Council was willing to introduce it. So the matter was dropped for lack of a sponsor. While there is little doubt much was beneath the surface, it is a little imprecise to say the Council blocked the matter from consideration. The next time the City Charter comes up for review, it would seem reasonable to allow the Mayor to introduce measures by himself, perhaps by giving him ex officio membership. Leaving him without some way to start a discussion, as he was humiliated to admit in public, does seem a little awkward. But it permits it to be said they actively blocked him, in this particular case.

Gov. Tom Corbett

Let's be sure we remember the biggest news in this state for a decade, has been the discovery of shale gas, leading to energy independence, low energy prices, and potential prosperity. Governor Corbett had refused to allow taxes on the shale extraction, and a lot of politicians had been counting on getting a piece of this action for their own local purposes. In the November 2014 election, there had been a Republican landslide across the whole nation, including the Pennsylvania Legislature. But Republican Governor Corbett was swept out of office, in a striking exception to the landslide. One of the visiting lawyers mused that Philadelphia's Democratic Mayor was probably looking for some state assistance in his struggling budget problems, and perhaps, just perhaps, that was the reason he was acting in such a wayward manner in this gashouse thing. No one was talking. After all, it was a common belief that gas transmission lines were all sewed up, many stronger politicians had got there first, and gas for Philadelphia was a non-starter. Since no one is willing to talk about it, everybody has a right to his own guess. Here's mine.

James P. Torgerson

A thing is worth what you can sell it for, not a penny more. The President of a Connecticut gas company presumably has something on his mind when he crosses two state lines to make an offer for some distant city's gas company. Two possibilities come to mind immediately, and one of them is immediately squelched. That would have been the idea that the acquiring company would plan to dump the defined-benefit pension plan of the city employees, and offer a defined-contribution plan like everyone else. But that idea had occurred to others first, and it had been testified the pension plan for the gas workers was actually pretty well funded. So, if that's a non-starter, there's only one other excuse the Connecticut gas president could offer to his own Board of Directors, for pursuing a $42 million cost to acquire a $30 million dollar savings, particularly when PGW already had the highest rates in the state and obviously wouldn't be able to raise them after a merger.

It would be my guess this talk about the hopelessness of getting a pipeline constructed, was bunkum. My suspicion is he had good reason to believe he could get a pipeline, and that a Republican president would approve it. Governor Corbett had already shown unusual foresight in attracting pipelines by refusing to tax shale gas. By the time he got the pipe in the ground, a gas glut would drop gas prices so severely no competitor in another state could compete with it. That's why the dimwits in the Legislature were so mad at him; they were expecting a joy ride on those taxes for themselves. Instead, we have taken a couple of steps toward making Pennsylvania the oil capital of a nation which has shale competition in forty other states. But Pennsylvania would have the pipelines. Poor Corbett got a political pistol-whipping, but if he has friends who owe him bigtime in the oil business, he won't be permanently sorry.

THREE WAYS TO ACHIEVE FUNDED HEALTH INSURANCE

Since everybody would benefit if the country found a way to pre-fund health insurance, what options are available or doing so? Or put another way, what obstacles, objections, and vested interests obstruct each possible way of doing it; how difficult would it be to overcome them?

Three general approaches might work reincarnation of Individual Retirement Accounts (IRAs) .for this special purpose, the legal encouragement of health insurance companies to sell permanent insurance or the creation of a national trust fund. Each of these approaches will now be changed to make them possible. All of them must somehow overcome the main problem inherent in payment in advance, which is that people must find spare money somewhere. while of course the disposable income could be found by reducing expenditures for non-essential luxuries, this discussion limits itself to examining how seed money might be squeezed out of inefficient practices in the existing health financing system.

Health Banking The first approach to be examined has been known by several names. When Michael J. Smith of Louisiana proposed it, he called it the CHIP proposal (Consumer's Health Investment Plan). When John McClaughry and I independently proposed something similar, it was called the Health Protection Account, Peter J. Ferrara of the Cato Institute, who likewise got the idea independently, had the genius to call it the IRA for Health. The IRA for Health has the great beauty that the title itself does most of the explaining; most people know what an IRA is, or was. An IRA for Health is obviously an IRA whose use is limited to health care costs. Unfortunately, congressman, whose cooperation is vital to the success of the idea, have gone through the experience of repealing the tax exemption of IRA's trying to reduce the national budget deficit. Congressmen have the mindset that IRAs will worsen the deficit, or at least that their constituents might think so. It isn't a correct perception, but the catchy H-IRA title has become a hindrance and must be replaced. Health Banking is here offered as a substitute title for Health Iras because it suggests an interest group who might assist the process of public persuasion because they would benefit from it. The definition of what constitutes a bank is in the process of change; perhaps there is room for health banking in some future compromise revision of the Glass-Steagall Act. For example, the mutual fund industry could become interested in health banking as part of their vision of non-bank banking. Perhaps the moribund savings banks could be entrusted with a trillion-dollar consolation for their regulation-induced troubles.

Whatever institution might aggregate and invest the funds, the main idea is that the tax-sheltered money which employers now spend on health benefits would be deposited in individually named accounts, and invested according to some rule of prudence. Withdrawals from the accounts would only be permitted for specified health purposes. It is absolutely central to understand that nothing is here proposed to be tax sheltered which is not already tax sheltered. For better or worse, employer contributions for health benefits are already tax-sheltered, and will almost surely remain so. Even recent deficit-desperate congresses have not dared to threaten that $50 billion annual revenue cost to the Treasury. Indeed, when Congress does develop the courage to curtail the tax exemption of health benefits (for employed people), perhaps then health banking could be described as costly. Until such time, however, it remains fair to generalize that reestablishment of IRAs, limited to health expenditures, has no Federal cost.

In the next chapter, we will discuss the investment issues which are raised. For the present, we should assume that the institution which becomes custodian or health banker will generate a safe and adequate stream of revenue; what rules must govern the way it is spent? Ideally, a health investor would want to accomplish the following goals:

-He would want to pay for essential health care.

-If he lives a long time and has money to spare, he would want to provide for custodial care in his old age.

If he dies and has money left over, he would want it to go to his estate.

But these are decreasing priorities. The first rule is survival. If he cannot pay for his old age, he must plan to throw himself on the mercy of family, friends, and community. If he has nothing left for his heirs that is no worse than a pity when he has no dependents, but tragic if he does.

To the foregoing self-evident principle should be added two more which are less adequately appreciated. The first is that the federal government has long addressed the problem of aid for dependent children, and ordinary Social Security benefits are quite generous for survivors. No doubt these programs for widows and orphans could be more generous, but they are as generous as twenty congresses have decided to be; it is unrealistic to include provision for dependent survivors in a new program proposal.

The second mitigating principle is nature's trade-off. Nothing is more clear to a doctor than the experience that ten percent of his practice develop ninety percent of the illness. If you get very sick very often, you need not worry greatly about the prospective costs of living for years in a retirement home. Dying young is a tragedy, and outliving your income in a shabby old age are both tragedies, but relatively few people experience both of them. To the extent that some people are needlessly insured against both disasters, it should be possible to create insurance efficiencies by combining both risks in one funding mechanism.

By reflecting on the general principles of prudent provision for the future, we arrive at the following proposed rules for releasing money out of healthy banks (aka IRAs for Health). Vouchers may be issued, or disbursements made directly, to pay health insurance premiums, front-end deductibles, nursing home insurance, entrance fees for life-cares communities, specially designated trade-offs with Medicare, and payment of any residual balance to the individual's estate. Investment income would not be taxed, but the estate tax would apply after age sixty-five. Since this statement of benefits is technical and terse, the following explanatory footnotes are necessary:

Payment of front-end deductibles. If the health bank only paid the present premiums of health insurance there would be nothing left over to invest. It is anticipated that premiums would initially be lowered y purchasing health insurance with at least $500 yearly deductible, and the amount of the "front-end" deductible would later gradually rise as funds accumulate in the account. This process would, in turn, cause a progressive lowering of the premium of the health insurance, accelerating the savings. When expensive illness occurs, the fund would reimburse the subscriber the full amount of the deductible, upon presentation of evidence that his health insurer had paid out amounts in excess of it.

Special trade-offs with Medicare, Nursing home care, Life-care communities. It will be necessary for the reader to be patient for these proposals to coordinate health banking with the entitlements under Medicare and federal catastrophic health insurance. The subject is dealt with in the section of the book devoted to Prescription II: Last Year of Life Insurance.

Payment of Residuals to Estates.No doubt there would be an instinct to examine whether the program could be made less expensive if residuals were forced to revert to the federal treasury. To permit an estate to retain these funds would seem to enrich the heirs out of funds which were largely made possible by federal income tax exemption. True enough, but long experience in my medical practice with life tenants of trust funds has been that they will relentlessly seek ways to spend money on pseudo medical care if there is no other way to get their hands on what they regard as their rightful money. Some incentive must be created to prevent "health insurance companies" from creating benefits like suntan oil and health spas in warm climates, whose only real purpose is to collude with beneficiaries. To attempt to prevent this sort of behavior with regulations is laughable.

That's not all you could do with health banking, however. If individuals should die young or use up all of their funds with repeated expensive illnesses, they might seem to be about where they are now without health banking, minus the extra layer of administrative overhead. But they have achieved portability. They can become unemployed, change employers, or retire early without the same concern that they have lost their health insurance. If they have developed a chronic problem, it has not become a "pre-existing condition" in the eyes of some new insurance carrier. They can quit their jobs without fear that a new employer with company self-insurance would regard them as potentially expensive employees. They need not fear that post-retirement health benefits will be blown away by a corporate raider, or that the company where they worked for years will subsequently go bankrupt and leave them with empty promises instead of health insurance. Portability.

For the vast majority of participants, however, another whole new concept becomes possible after a few years. We are now back to Benjamin Franklin and perpetual insurance. The health bank was just a transitional stage to reach it. The ingredients of perpetual health insurance are:

The fund has grown so large that its investment income is big enough to pay the premium on a high-deductible health insurance policy without any further contribution

And the fund is big enough to pay all of the deductible portions of a major illness

And there is still enough investment income to pay the premium of a reinsurance policy which covers the unusual instance of sustaining two or more major illness.

As a guess, such a fund would be in the neighborhood of thirty thousand dollars. As a further guess, most people would continue to work past the time the fund went perpetual, and further contributions would accumulate. Individuals who reached this happy state of affairs would almost by definition be fairly healthy, and in all likelihood would look forward to a long and dreadful sojourn in a nursing home. For a quick overview of the situation, the next time you go to a high school reunion, take a stroll over to the area where the fifty-year class is meeting. About half of the class will be in attendance, some in wheelchairs, but the other half of the class will be in memoriam. Fifty-fifty at the fiftieth.

What has been briefly described is a mechanism for designating a considerable amount of funds for long term care that are not now available. It was achieved without financial or other barriers to healthcare access except possibly some self-denial since full reimbursement for healthcare is available to every participant. If someone wants to put up with his hemorrhoids in order to have more money for later nursing home care, or if he wants to hold off entering a nursing home in order leave more money in his estate, well, those are his options. If he holds off getting treated for his cancer "for those same reasons", in my medical experience those wouldn't have been the true reasons", in my medical experience those wouldn't have been the true reasons at all and he would have held off no matter what his insurance arrangement might be. So, what's the magic? Where did this money come from?

From the operation of compound interest of between 3% and 8%, depending on the amount of equity risk assumed.

From self-denial of borderline necessary or even frivolous medical expenditures in response to the development of an incentive to save.

From the downward pressure on medical prices created by a more cost-involved public.

From the out-of-pocket contribution of health care expenses which fail to exceed the yearly deductible amount.

From reduced administrative costs of processing small claims through first-dollar coverage rather than paying them out-of-pocket. The reader is invited to consider this issue in more detail in Prescription IV: Insurance Tangles.

Will all this be enough to carry the project? Hard to know. What isn't hard to know is that savings of just 1% of a $500 million annual medical cost, amount to $5 billion per one percent saved.

Health Insurance Companies Unchained.Observers of the economic scene, especially the Washington political-economic scene, will be well aware that health banking is a proposal from the conservative side of politics. It had origins in the Reagan administration and the libertarian Cato Institute. A staunch Virginia conservative, Representative French Slaughter, introduced a bill (HR 536) along these lines, and he has been supported by the Republican Study Group under the chairman of Representative David Dreier of California. Just exactly because the proposal has this sort of appeal, it has a strong weakness. The idea is strongly rooted in the idea that individuals should make their own choices, even to the point of being allowed to make wrong choices. Individual citizens should be allowed to have their own way with their own money, even if their betters think their choices are not in the best interest of society or even best for the particular individual.

Well, that's just fine, but unfortunately in this instance, it comes up against a pretty big problem. Even when the IRA was available, only 14% of the eligible public availed themselves of it, there were vast numbers of people who had never heard of it. I spent endless hours fruitlessly attempting to persuade several of my secretaries to create an IRA, and even some of my children had to be prodded pretty hard. An executive of one of the largest corporations in the country told me of the dispiriting experience at his company with a 401 (k) plan, which is essentially an IRA. The company offered to match contributions dollar for dollar and conducted a large and continuous education program. This man made the estimate that in the whole corporation no more than a dozen unmarried women availed themselves of the opportunity, and the workforce included plenty of women lawyers and accountants. With an experience of only 14% enrollment in the IRA, it certainly isn't fair to point to just single women as having an anti-saving mentality, although I suppose there is something to it if he says so. In doing my little bit to encourage the world to establish IRAs, I noticed that one of the most effective inducements among those who did it was the wicked pleasure of beating the government out of some taxes.

So, we enthusiasts must make a grudging concession that if health banking is to succeed on a major scale any time soon, it must do more than just make itself available and then wait for everybody to get smart enough to buy it. It isn't necessary to share the rhetoric one union president unleashed on me, "You've got to find a way to keep the working man from spending his wages on drink". The paternalism of that degree is too much for me, but I will concede that something must be done to prod people a little. And that missing ingredient just might be a vast army of glib commission-motivated insurance salesmen.

It must not be assumed that health insurance companies are straining at the leash, impatiently lobbying for legislative release from their inability to sell funded health insurance. In fact, most of them do not have much sales force since health insurance is typically marketed in bulk to employer benefits departments. Most of them do not have much investment portfolio management department, especially outside the area of the short-term paper. There is minimal research on the subject of lifetime health costs. Incentives are weak; health insurance is typically regarded as a loser by full-line companies, Blue plans which dominate what is left are non-profit concerns. Insurance companies are fiduciaries, custodians in trust of other people's money. If careless paying obligations they get sued, if they can't pay their obligations they go bankrupt. If they make big profits they get bad press or ruinous competition, it doesn't matter which.

However nothing important is easy, and we want them to peddle our product. What's their problem? Their central problem turns out to be the fact that funded health insurance asks the company to assume the risk, and no one knows how to price the risk. Using the health banking approach, the individual subscriber assumes the twin risks that future health costs will inflate at a predictable rate and that investment results will equal the historical record. Who knows if we will have inflation like a banana republic, a depression like the one in 1933, or the development of medical miracles no one can afford? That's a risk, which the individual holder of a tax-sheltered medical account might assume willingly on the argument that any outcome could be no worse than unfunded health insurance. Put an insurance company's guarantee into the hands of that person, however, and you had better pay your promise if you want to stay out of court. Life insurance companies are just beginning to experiment with best-efforts investing, using the name of variable annuity life coverage, and that sort of approach would surely be necessary for funded health insurance. Predicting the average life expectancy of a large group of healthy people is however a minor mathematical exercise compared with estimating the aggregate average health care costs for the next thirty-five years. The actuary doesn't even know for certain how many people will have any health cost at all; at least the life actuary knows that everyone is going to die. The advent of a new and fatal epidemic like AIDS shows you what these predictions can be worth. The price Dr. Starzl's hospital charges to transplant your liver startled even me when I heard it last year.

Quick reflection on the issues brings the firm conclusion that health insurance companies could only be expected to offer best-efforts investing, without any insurance guarantee at all. They would surely market the product skillfully, as we desire they should, but the cost increment would be quite appreciable. The sales cost for life insurance is typically equal to the entire first year's premium, while an additional profit must be offered the company to induce it to handle the product. Investment experts will have to be paid to manage the money, and they characteristically value their own services highly. It's too bad to have to say it, but if you are too dumb to manage your own money you are going to pay through the nose to have someone else do it.

Perhaps this is an appropriate time to mention the idea that some large unions have toyed with, of becoming self-insured for the health benefits of their members. All that means is they would expect the employer to give them the money, and they would pay it out. In order words, they propose to become insurance companies. Most everything which has been said about other health insurance, therefore, applies to them, too. In addition, it might not hurt to mention Ricardo's principle of relative advantage, which roughly states that people with professional experience in a field often do the best job at it.

Publicly Managed Trust Funds. The third general method for achieving pre-funded health insurance is one which the American Medical Association as a method for basic restructuring of the Medicare program. In a widely discussed report of the AMA proposed the creation of an independent federal agency to receive the health insurance payroll taxes which now flow into the Medicare trust funds, invest them, and issue vouchers to the elderly which would permit them to purchase private health insurance. The agency would also fill the badly needed role of a group of experts charged with overseeing the course of national health inflation, demographic and health practice changes, and the national investment climate.

The AMA employed expert advice in the preparation of this plan, and it is likely their financial estimates are sound when they project that Medicare could become totally pre-funded by 2016, using tax rates achievable close to present taxation. This plan would include provision for working off the present unfunded liability for existing beneficiaries, honoring commitments previously made to the elderly. It is a great testimonial to the flexibility of the AMA in recent years. as well as to the tremendous power of compound interest, that such a monumental problem could be effectively addressed. After all, the AMA in 1965 quite correctly warned the country that the Medicare program would quickly pile up mountains of unfunded obligations if it adopted a "pay as you go" financing method. Not everyone who has been vilified for being right will subsequently adopt a constructive problem-solving approach to repair the accurately predicted damage.

The creation of an independent board of expert overseers supplies a need which health banking through the IRA doesn't, and creations of a government agency create a guarantor of last resort, even though it might be stoutly denied. Lots of Americans trust their government to keep its promises. However unsophisticated that attitude may be m, it helps get national support for the idea of pre-funded insurance in a way no television spot commercials could do, and no insurance salesman could do over the kitchen table. Every government since the Lydians invented coinage might have remorselessly devalued its currency, and it would not matter. A very large proportion of Americans trust government bonds as they trust nothing else in society.

However, a sizeable group of people simply will not have this approach, and a number of them are in Washington. The AMA made a small tactical error in describing the proposed independent agency as roughly comparable to the Federal Reserve Board in its independence and suggested a similar method of appointment. Apparently, the AMA had no idea of the violence with which the Federal Reserve Board is hated by certain influential members of both legislative and executive branches, or of the decades of bitterness between mid-western bankers and the New York banks which control the open market committee of the Fed. In a sense, the Federal Reserve is actually owned by the banks it regulates and tends to defend their interests. The whole investment community is at war (nice polite war, of course) with banks, struggling for turf in some pending revision of that Treaty of Versailles, the Glass-Steagall Act. Every election year, the Federal Reserve gets embroiled in bitter controversy as to whether its policies are slanted to cover up for congressmen who want the Fed to do their dirty work and have it within their power to abolish the whole agency if it does not comply. Independent as the Fed. Foo.

Let a Hundred Flowers Bloom. No doubt this inflammation can be soothed with diplomacy, but there are more serious worries about the investment difficulties which are unique to a trillion dollar fund run y the Federal Government to be addressed in the next chapter. In the meantime, the three funding mechanisms can be summarized as having certain flaws and certain strengths which are peculiar to each. It seems unlikely that the country could agree to permit only one of them to be designated to the exclusion of the other two. To a serious proponent of the general approach, it seems imperative that we authorize all three approaches while forcing them to remain in competition with each other. After all, we are talking about a system which addresses the needs of everyone no matter how different the circumstances. People who take wild chances should be restrained from becoming public charges, ignorant people should be protected against those who would fleece them. As Adlai Stevenson said, "It used to be said, a fool and his money are soon parted. But nowadays, it can happen to anyone."

There is, however, no certain way to know the future even if you go to Princeton to learn it. Let the banks and mutual funds exploit their lower marketing costs, let the insurance companies sell rings around them. Let the private sector shame the mediocre performance of the public trust fund, while the trust fund stands as a tower of strength among self-serving investment pitchmen. So long as the public is allowed to switch around, things should work out, in an investment version of the system of checks and balances.

Albany Conference 1754

State and Federal Powers: Historical Review

John Dickinson of Delaware

It was expedient to leave certain phrases in the Constitution intentionally vague, but the overall design is clear enough. Just as twenty-eight sovereign European nations now struggle to form a European Union, thirteen formerly sovereign American colonies once struggled to unify for the stronger defense at a reduced cost. Intentionally or not, that created a new and unique culture, reliant on the constant shifting of power among friendly rivals. Everybody was a recent frontiersman, trusting, but suspicious. It still takes newcomers a while to get used to it.

So the primary reason for uniting thirteen colonies was for a stronger defense. As even the three Quaker colonies of New Jersey, Pennsylvania and Delaware could see, if you are strong, others will leave you alone. In time, the unification of many inconsequential behaviors created a common culture of important ones; and in time that common culture strengthened defense. At first, it seemingly made little practical difference locally whether construction standards, legal standards, language and education standards and the like were unified or not. Except, that in the aggregate, it forged a common culture.

The practice of Medicine was certainly one of those occupations where it mattered very little whether we were a unified nation. Unification of medical care offered a few benefits, but mostly it didn't matter much, right up to 1920 or so. Even then I would offer the opinion, that unification of the several states (with consequent Free Trade) only made a big difference to health insurance, and still made little difference to the rest of medical care. In fact, there are still about fifteen states with too little population density to provide comfortable actuarial soundness for health insurance, as can readily be observed in the political behavior of their U.S. Senators. Although the number of low-population states gets smaller as the population grows, there are even so perhaps only ten big states where multiple health insurance companies can effectively compete within a single state border. Quite naturally the big-state insurers expect one day to eat up the small ones. By contrast, the nation as a whole, the gigantic population entity which Obamacare seeks to address, has far too many people spread out over far too large an area, to be confident we could unify them into one single program. Dividing the country into six or seven regions would be a much safer bet. That's the real message of the failure of the Computerized Insurance Exchanges -- far too much volume. And the coming failure of the Computerized Medical Record -- with too much complexity. With unlimited money, it can be done, because diseases are disappearing and computers are improving. But why struggle so hard?

It is at least fifteen years too early, and mostly serves the interest of insurance companies, if they can survive the experience. At the same time, we are at least fifteen years away from growing the smallest states to the point where we could decentralize. It's really a situation very similar to the one John Dickinson identified, James Madison briefly acknowledged, and where Benjamin Franklin improvised a solution. In their case, it was a bicameral legislature. In the case of medical care, it could be an administrative division of revenue from the expenditure. It could be the cure of a half-dozen chronic diseases. It could be six regional Obamacare. But creating one big national insurance company during a severe financial recession is something we will be lucky to survive.

Returning to the Constitutional Convention, an additional feature was added to the tentative 1787 document to respond to protests from small component states. They objected that whatever the big-state motives might be, small states would always be dominated by populous ones with more congressmen if a unicameral Legislature is made up of congressmen elected by the population. Pennsylvania had recently had a bad experience with a unicameral legislature. So a compromise bicameral legislature (with differing electoral composition in the two houses) was added to protect small-state freedoms from big domineering neighbors. Even after the Constitution was agreed to and signed, the states in ratifying it still insisted on a Bill of Rights, especially the Tenth Amendment, elevating certain citizen prerogatives above any form of political infringement, by any kind of a majority. These particular points were "rights"; individuals were even to be insulated from their own local state government. The larger the power of government, the less they trusted it.

John Dickinson of Delaware, the smallest state, soon made the essential point abundantly clear to a startled James Madison, when he pulled him aside in a corridor of Independence Hall, and uttered words to the effect of, "Do you want a Union, or don't you?", speaking on behalf of a coalition of small states. It was probably galling to Dickinson that Madison had never really considered the matter, and went about the Constitutional Convention airing the opinion that, of course, the big states would run things. Dickinson, who had been Governor of two states at once, had observed the effect of this attitude and wasn't going to have more of it.

Delegates

Benjamin Franklin, who for over 40 years had been working on a plan for a union of thirteen colonies (since 1745, long ago producing the first American political cartoon for the Albany Conference), devised the compromise. It was essentially a bicameral legislature -- with undiminished relative power in the Senate for small states. In this backroom negotiation, it was pretty clear Franklin held the support of two powerful but mostly silent big-state delegates, Robert Morris and George Washington. These were the three men of whom it could be said, the Revolution would never have been won without each of them. In 1787 they were still the dominant figures in diplomacy, finance, and the military. All three were deeply committed to a workable Union, each for somewhat different reasons. Now that a workable Union was finally within sight, parochial squabbles about states rights were not going to be allowed to destroy their dream of unity.

And so it comes about, they gave us a Federal government with a few enumerated powers, ruling a collection of state governments with regional power over everything else. And since big-state/small-state squabbles are unending, almost any other solution to some problem repeatedly, seemed preferable to disturbing what holds it all together. On the other hand, the Industrial Revolution was beginning at about the same time, and people who recognized the power of larger markets almost immediately set about attacking state-dominated arrangements, systematically weakening them for a century, and redoubling the attack during the Progressive era at the end of the 19th Century. Attacks on what seemed like an abuse of state power, the power to retain slavery, and later the power to perpetuate white racism, were claimed to justify this attrition of states rights. The ghost of the Civil War hung over all these arguments, restraining those who pushed them too far.

However, the driving force was industrialization, with enlarged businesses pushing back against the confinement of single-state regulation within a market that was larger than that. This restlessness with confining boundaries was in turn driven by railroads and the telegraph, improving communication and enlarging markets, which offered new opportunities to dominate state governments, and when necessary the political power weakens them. One by one, industries found ways to escape state regulation, although the insurance industry was the most resistant, whereas local tradesmen like physicians found it more congenial to side with state and local governments. The 1929 crash and the Franklin Roosevelt New Deal greatly accelerated this dichotomy, as did the two World Wars and the Progressive movement from Teddy Roosevelt to Woodrow Wilson. The Founding Fathers were said to have got what they wanted, which was a continuous tension between two forces, supporting both large and small governments; with neither of them completely winning the battle.

Insurance Monopoly

The medical profession further evolved from a small town trade into a prosperous profession during the 20th century, but the practice of medicine remained comfortably local. Even junior faculty members who move between medical schools quickly come to realize their national attitudes are somewhat out of touch with local realities. For doctors, state licensure and state regulation remained quite adequate, and state-regulated health insurance companies paid generously. State-limited health insurance companies had a somewhat less comfortable time of it, but the ferocity of state-limited insurance lobbying, as exemplified by the McCarran Ferguson Act, perpetuated it. The medical profession watched uneasily as the growth of employer-paid insurance extended the power of large employers over health insurance companies beyond state boundaries, and thus in turn over what had been medical profession's kingdom, the hospitals. And the medical profession also had to watch increasing congeniality with big government extend through businesses, unions and universities, fueled by overhead allowances of federal research grants and finally in 1965, federal health insurance programs. Nobody likes his regulator, but national organizations inevitably prefer a single regulator to fifty different ones. Furthermore, everybody could see that health care suddenly had lots of money, and naturally, everybody wanted some.

There is nothing naturally inter-state about medical care -- except health insurance.

It was all very well to pretend that health care was out-growing local-state regulation, but those on the inside could uneasily watch the federal/state competition for control, with the federal government repeatedly stacking the deck more in its own favor. Aside from federal program interventions, there is still nothing naturally inter-state about medical care -- except health insurance. Doctors, hospitals, and patients all tend to remain local, but insurance can easily cross state lines if regulation permits. Even in insurance, small states have difficulty maintaining actuarial stability, driving health insurance toward one-state monopolies. With a few big-state exceptions, even most health insurance companies prefer single-state monopoly status to federal regulation because it facilitates marketing. To praise the virtues of insurance competition is fine, but if sharing the local market means struggling for adequate risk reserves, nationwide regulation will inevitably lead to domination by a few big-state insurance companies. Small-state insurers would enjoy access to a national market; but blocked from it, they need to retain a local monopoly to survive. Fleeting thought might be given to Constitutional Amendment, but there are probably always going to be enough states which consider themselves small, to block the two-thirds requirement for Amendment. Imposing nationwide uniformity by force would possibly improve standards, but uniformity is increasing rather than decreasing, so the argument is not a strong one.

To be fair about it, there was not a strong case for state regulation, either. It could have been argued that uniformity and reduced administrative costs favored central regulation over-dispersed control, because of improved efficiency; and few would have argued about it. Until the ACA insurance exchanges crashed of their own weight around the ears of hapless creators, that is, unable to do what Amazon seems to do every day, and raising quite a few embarrassing recollections. Recollections of the mess the Sherman Antitrust Act inflicted on local medical charity in Maricopa County, Arizona. Recollections of the "Spruce Goose" airplane that Howard Hughes made so big it couldn't fly. Recollections of the gigantic traffic jam strangling the District of Columbia every weekend. And, reminders that 2500 pages of legislation remain to be converted into 20,000 pages of regulations which it would take a lifetime to understand. Suddenly, let's face it, retaining state regulation of health care, or not rocking the boat, gets a lot better press. It might even work better than the national kind, especially in an environment where no one expected a perfect solution, and just about everyone had heard of the Curse of Bigness. When we first discovered that use of health insurance added 10% to the cost of health care, it had seemed like an easy place to extract 2% of the Gross Domestic Product for better things, just by streamlining administration. But after the health exchange fiasco, some people begin to wonder if 10% is just what it costs to use insurance to pay for healthcare. If that is the case, perhaps we should look at other ways of paying our bills, not just a different regulator. Nobody would pay 10% just to have his bills paid, if he understood what he was doing.