Philadelphia Reflections

Law of Perpetuities

It may be a surprise, but the concept of a Limiting Factor (the Law of Perpetuity) may once again intrude the U.S. Supreme Court into the Affordable Care Act. It may also be a little hard to follow, so pay attention to what would ordinarily be regarded as a dry subject.

The concept of a limiting factor makes modern law, and possibly modern economics, possible. Several centuries ago, well before the US Constitution was written, lawyers came to see that many things are only possible if you don't carry them too far. The operation of compound interest is an example. In ordinary human commerce, the tendency of compound interest to rise over time leads to an eightfold rise over one lifetime of 84 years (48 in 1901 to 84 in 2017). A 200-year lifetime would lead to even more rise, to the point where one dollar invested at birth at 7% would pay for the entire average medical cost of a lifetime of $350,000 expressed in the year 2000 dollars. But quite obviously, if some scientist discovered a drug which lengthened life that much, something in the law would have to be changed to hold the economic world together.

So, about three hundred years ago, some English judge laid down the Law of Perpetuity, stating that Trust Funds may not endure for more than one lifetime, plus 21 years. It's proved to be a useful limiting factor, not likely to be changed easily. Congress might feel empowered to change it, but too much of modern commerce revolves around this definition of perpetuity, for the public to permit tampering without huge uproar. Notice the flexible wording: 21 years plus one life expectancy. Changing life expectancy would not invalidate the law.

A century ago, life expectancy was thirty years shorter, five doublings at 7%. And now it is more than eight doublings or in effect (2,4,8,16,32,,64,128,-->)256 times the original number. But that doesn't matter, because the law only effectively states its limit is 2 doublings (four times as much) more than the life expectancy at birth. A century ago, that implied two hundred-fifty-fold increase more than the starting amount at birth, and today it implies a thousand times. Inflation chugs along at 3% simple interest in both cases, at a growth rate doubling in 24 years (72/3). That's three doublings at simple interest a century ago, versus four doublings today. The important present difference is the thousand-fold compounded gain, compared with only 256-fold compounded at 7% a century ago, a seven-hundred-fold difference in the base price. The problem we have nevertheless still threatened less than forces opposed to changing the Perpetuity age limits.

To summarize, compound interest on Medicare-linked investment has gained six or seven hundred-fold over inflation in a century, as a result of medical progress bumping against mathematical principles. This difference is not likely to change in the coming century, because longevity at birth would have to increase to age two hundred to overwhelm the judges into changing the age limits of such a fundamental law. If net Medicare-linked costs rise to approach that level, moreover, this revenue opportunity might disappear.

There is no reason to avoid exploiting this opportunity while it lasts. It presents a quick and dirty solution to the present urgent problem, which is to find alternative proposals for reforming transition to healthcare financing, in case the Affordable Care Act is suddenly repealed. At the present time, the opportunity to reduce the effective cost of transition lies in the gap between the average age of death and the Law of Perpetuity -- about twenty years. At 7%, that's two doublings or four-fold profitability. The question becomes whether to raise the term limit of the Health Savings Accounts above its present level of the age of Medicare attainment. The natural instinct would be to terminate the HSA at death, but the Perpetuity law would permit 21 years more. Since the life and health of the depositor has very little bearing on this subject, Congress has the opportunity to allow Trust funds to continue to earn investment interest after death, until either its Medicare funding debts are extinguished, or the birthdate of the deceased depositor reaches 104 and is terminated by the unchanged Law of Perpetuity. The effect of doing this would multiply the funds for the transition by 400%, and largely solve the problem if the Trust applied all funds to the debt incurred when offered the opportunity to choose. When we get to that subject, the transition is the big obstacle for three reasons: 1) There may not be enough money to do it. 2) The transition may take too long if it is constrained by available funds. 3) And the courts may find some reason to block it.

As a non-lawyer, I can see no technical reason why this could not be done, but some reason might be invented for political reasons. Unanticipated problems might arise, but under present law the challenge would probably come through the State courts, using the Tenth Amendment as a basis. If the adoption of the idea is voluntary with the States, or if demonstration projects are employed, a conflict between jurisdictions is very likely, and the U.S.Supreme Court would have to settle the conflict. This split approach might satisfy both State and Federal proponents enough to remove the obstacle, because the Wickard v. Fillmore decision still rankles after eighty years, and after much longer than that from the Civil War, memory of which still greatly affects the regional popularity of federalism.

Several other ways to pay for the transition costs, or shorten the transition time, will be offered in later chapters. But only this simple change is required early in the process, and so only this proposal will transform transition from a plan to a process. It has always bothered me for a complete transition to take nearly a century, during which interval there would be many changes of political control of Congress. In turn, those transitions offer a chance to smother central concepts in a welter of obfuscation. And that applies to all transitions, suggesting original planning should always be followed. To a certain degree, that has sometimes proved useful, but the transition in this particularly vexed case is going too far with it. So having major alternative approaches, and thus creating opportunities for later innovation, seems on balance a worth-while addition.

Originally published: Thursday, December 22, 2016; most-recently modified: Tuesday, April 30, 2019