Obama eligibility challenges spread to 6 states

A judge in Georgia could decide this week whether voters convinced him Barack Obama's name should be removed from the 2012 presidential ballot because he is not qualified to hold the office. But win, lose or draw, the fight won't be over, as other cases are erupting across the nation.


http://www.wnd.com/2012/01/obama-eligibility-challenges-spread-to-6-states/

A US court finally has heard evidence of Obama's eligibility !!

YOU WILL WANT TO READ THIS! IT IS HISTORIC!


January 26, 2012

Here is a break-down of today's historic event --

Given the testimony from today’s court case in Georgia, Obama has a lot of explaining to do. His attorney, Jablonski, was a NO SHOW as of course, was Obama.

The following is a nutshell account of the proceedings:

Promptly at 9am EST, all attorneys involved in the Obama Georgia eligibility case were called to the Judge’s chambers. This was indeed a very interesting beginning to this long awaited and important case. The case revolved around the Natural Born clause of the constitution and whether or not Obama qualifies under it to serve. More to the point, if found ineligible, Obama’s name would not appear on the 2012 ballot in Georgia.

With the small courtroom crowded, several in attendance could be seen fanning themselves with pamphlets as they waited for the return of the attorneys and the appearance of the judge. Obama himself, who had been subpoenaed to appear, of course was nowhere near Georgia. Instead, Obama was on a campaign swing appearing in Las Vegas and in Colorado ignoring the court in Georgia.

Over the last several weeks, Obama’s attorney, Michael Jablonski, had attempted several tactics to keep this case from moving forward. He first tried to have it dismissed, then argued that it was irrelevant to Obama. After that, Jablonski argued that a state could not, under the law, determine who would or would not be on a ballot and later, that Obama was simply too busy with the duties of office to appear.


After all these arguments were dispatched by the Georgia court, Jablonski, in desperation, wrote to the Georgia Secretary of State attempting to place Obama above the law and declared that the case was not to he heard and neither he nor his client would participate.

Secretary of State, Brian Kemp, fired back a letter hours later telling Jablonski he was free to abandon the case and not participate but that he would do so at his, and his clients peril.

Game on..........

5 minutes. 10 minutes. 15 minutes with the attorneys in the judge’s chambers. 20 minutes.

It appears Jablonski is not in attendance as the attorneys return, all go to the plantiffs table 24 minutes after meeting in the judge’s chambers. Has Obama’s attorney made good on his stated threat not to participate? Is he directly ignoring the court’s subpoena? Is he placing Obama above the law? It seems so. If Joe Q citizen were subpoened to appear in court, would he or his attorney be allowed such action or, non action? Certainly not.

Court is called to order.

-- Obama’s birth certificate is entered into evidence.
-- Obama’s father’s place of birth, Kenya East Africa is entered into evidence. Pages 214 and 215 from Obama’s book, “Dreams from My Father” entered into evidence. Highlighted. This is where Obama indicates that, in 1966 or 1967 that his father’s history is mentioned. It states that his father’s passport had been revoked and he was unable to leave Kenya.
-- Immigration Services documents entered into evidence regarding Obama Sr. June 27th 1962 is the date on those documents. Obama’s father’s status shown as a non-citizen of the United States. Documents were gotten through the freedom of information act.

Testimony regarding the definition of Natural Born Citizen is given citing the Supreme Court opinion from Minor vs Happersett (1875). The attorney points out the difference between “citizen” and “Natural Born Citizen” using charts and copies of the Minor vs Happersett opinion. It is also pointed out that the 14th Amendment does not alter the definition or supersede the meaning of Natural Born. It is pointed out that lower court rulings do not conflict with the Supreme Court opinion nor do they over rule the Supreme Court's opinion in Minor vs Happersett. The point is, to be a natural born citizen, one must have 2 parents who, at the time of the birth in question, be citizens of the United States. As Obama’s father was not a citizen, the argument is that Obama, constitutionally, is ineligible to serve as President.


Judge notes that as Obama nor his attorney is present, action will be taken accordingly.

Carl Swinson takes the stand. Testimony is presented that the SOS has agreed to hear this case, laws applicable, and that the DNC of Georgia will be on the ballot and the challenge to it by Swinson.

2nd witness, a Mr. Powell, takes the stand and presents testimony regarding documents of challenge to Obama’s appearance on the Georgia ballot and his candidacy.

-- Court records of Obama’s mother and father entered into evidence.
-- Official certificate of nomination of Obama entered into evidence.
-- RNC certificate of nomination entered into evidence. DNC language does NOT include language stating Obama is Qualified while the RNC document DOES. This shows a direct difference trying to establish that the DNC MAY possibly have known that Obama was not qualified.
-- Jablonski letter to Kemp yesterday entered into evidence showing their desire that these proceedings not take place and that they would not participate.

-- Dreams From My Father entered.

Mr. Allen from Tuscon AZ sworn in. Disc received from Immigration and Naturalization Service entered into evidence. This disc contains information regarding the status of Obama’s father received through the Freedom of Information Act. This information states clearly that Obama’s father was NEVER a U.S. Citizen.

At this point, the judge takes a recess.

The judge returns.

David Farrar takes the stand. Evidence showing Obama’s book of records listing his nationality as Indoneasan. Deemed not relevant by the judge.

Orly Taitz calls the 2nd witness - Mr. Strump. Taitz enters into evidence a portion of letter received from attorney showing a renewal form from Obama’s mother for her passport listing Obama’s last name something other than Obama.

State Licensed PI takes the stand. She was hired to look into Obama’s background and found a Social Security number for him from 1979. Professional opinion given that this number was fraudulent. The number used or attached to Obama in 1979, shows that Obama was born in the year 1890. This shows that the number was originally assigned to someone else who was indeed born in 1890 and should never have been used by Obama. The eame SS number came up with addresses in IL. D.C. and MA.

Next witness takes the stand - an expert in information technology and photo shop. He testifies that the birth certificate Obama provided to the public is layered, multiple layered. This, he testifies, indicates that different parts of the certificate have been lifted from more than one original document

Linda Jordan takes the stand. Document entered regarding SS number assigned to Obama. SS number is not verified under E-Verify. It comes back as suspected fraudulent. This is the system by which the Government verifies ones citizenship.


Next witness - Mr. Gogt, who is an expert in document imaging and scanners for 18 years. Mr. Gogt testifies that the birth certificate, posted online by Obama, is suspicious. States white lines around all the type face is caused by “unsharp mask” in photo shop. Testifies that any document showing this, is considered to be a fraud. He states this is a product of layering. Mr. Gogt testifies that a straight scan of an original document would not show such layering. He also testifies that the date stamps shown on Obama documents should not be in exact same place on various documents as they are hand stamped. Obama’s documents are all even, straight and exactly the same indicating they were NOT hand stamped by layered into the document by computer.

Next witness, Mr. Sampson a former police officer and former immigration officer specializing in immigration fraud. He ran Obama’s SS number through database and found that the number was issued to Obama in 1977 in the state of MA. Obama never resided in MA. At the time of issue, Obama was living in Hawaii. Serial number on birth certificate is out of sequence with others issued at that hospital. Also certification is different than others and different than twins born 24 hours ahead of Obama.

Mr. Sampson also states that portion of documents regarding Mr. Soetoro, who adopted Obama have been redacted which is highly unusual with regards to immigration records. Suggests all records from Social Security, Immigration, Hawaii birth records be made available to see if there are criminal charges to be filed or not. Without them, nothing can be ruled out. Mr. Sampson indicates if Obama is shown not to be a citizen, he should be arrested and deported and until all records are released nobody can know for sure if he is or is not a U.S. Citizen.

Taitz shows records for Barry Soetoro aka Barack Obama, showing he resides in Hawaii and in Indonesia at the same time.

Taitz takes the stand herself and testifies that records indicate Obama records have been altered and he is hiding his identity and citizenship. She then leaves the stand to make her closing arguments.


Taitz states that Obama should be found, because of the evidence presented, ineligible to serve as President.

And with that, the judge closes the hearing.

What can we take away from this? -- This is a historic event. All of this evidence and testimony has finally been entered OFFICIALLY into court records. One huge question is now more than ever before, unanswered. WHO THE HELL IS THIS GUY?

Without his attorney present, Obama’s identity, his social security number, his citizenship status, and his past are all OFFICIALLY in question.

There is one thing to which there seems no doubt. He does NOT qualify, under the definition of Natural Born Citizen” provided by SCOTUS opinions, to be eligible to serve as President.

What will the judge decide? That is yet to be known, but it seems nearly impossible to believe, without counter testimony or evidence, because Obama and his attorney chose not to participate, that Obama will be allowed on the Georgia ballot.

It also opens the door for such cases pending or to be brought in other states as well.

Obama is in it deep and the DNC has some…a LOT…of explaining to do unless they start looking for a new candidate for 2012.


Update – Georgia's Judge Malihi has stated that he will enter a “DEFAULT JUDGEMENT” against Obama. THE JUDGE HAS STATED HE WILL BE FORMALIZING HIS VERDICT BY FEBRUARY 5TH.The Georgia Secretary of State, Brian Kemp, has already stated that he will follow the Judge's recommendations. That mean that Barack Hussein Obama will NOT APPEAR on the Great State of Georgia Presidential Ballot in 2012! Source: http://silencedogood2010.wordpress.com/2012/01/26/georgia-hearing-blow-by-blow

How the Founders Defined “Natural Born Citizen”

By Mario Apuzzo

The question which has gripped our nation is whether Barack Obama is eligible to be President and Commander in Chief. Article II, Section 1, Clause 5 provides that: “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.” The proper question under this clause is not whether Obama is a “Citizen of the United States.” Rather, the correct question is whether Obama is a “natural born Citizen” thereunder.

“It cannot be presumed that any clause in the constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it….” Marbury v. Madison. 5 U.S. 137, 174 (1803). In other words, the “natural born Citizen” clause of Article II must be given independent effect from the “citizen of the United States” clause of Article II itself and of the Fourteenth Amendment. All Presidents must qualify as Article II “natural born Citizens,” not as Fourteenth Amendment “citizens of the United States.” The two clauses have different and distinct meanings or they would not have their own independent life in the Constitution.  Article II says “natural born Citizen” and the Fourteenth Amendment says “citizen of the United States.” If being a “citizen of the United States” had the same exact effect as being a “natural born citizen,” then the “natural born Citizen” clause would have no effect. Such a construction is not admissible. If we were not to give special meaning to the words “natural born” and conclude that “natural born Citizen” and “citizen of the United States” mean the same thing, the words “natural born” in the “natural born Citizen” clause of Article II would be superfluous. Our Supreme Court has consistently expressed “a deep reluctance to interpret a statutory provision so as to render superfluous other provisions in the same enactment.” Pennsylvania Department of Public Welfare v. Davenport, 495 U.S. 552, 110 S.Ct. 2126, 2133, 109 L.Ed.2d 588 (1990); International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Uaw v. Johnson Controls, Inc, 499 U.S. 187, 111 S.Ct. 1196, 1204, 113 L.Ed.2d 158 (1991) . Hence, we have to give special meaning to the words “natural born.”


As so many scholars and commentators have asked, what does “natural born Citizen” mean? Why did the Framers distinguish in Article II between a “citizen of the United States” and a “natural born Citizen?” The Founders trusted the occupancy of the Office of President to those born on or inhabiting the soil of or to those who naturalized in the Colonies or new States, all of whom belonged to the original citizen class because, even though they were born subject to a foreign power, they had evidenced their loyalty and attachment to the United States by fighting for the American cause in the Revolution. Also, for those born “natural born subjects” of the British Crown, through the Treaty of Peace of 1783, England absolved its subjects of the natural allegiance that they owed to it. But the Founders knew that there would be other foreigners coming to live in America in the future. The allegiance and loyalty of these future foreigners would not have been tested or even absolved in some manner as had occurred under the Treaty of Peace of 1783. The Founders feared foreign influence infecting the administration of the government. It was the fear of foreign influence invading the Office of Commander in Chief of the military that prompted John Jay, our first U.S. Supreme Court Chief Justice, to write to General George Washington the following letter dated July 25, 1787: “Permit me to hint, whether it would be wise and seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Commander in Chief of the American army shall not be given to nor devolve on, any but a natural born Citizen” (underlying in the original). Note that Jay wanted a “strong” check that would prevent a foreigner from becoming the Commander in Chief. Hence, any definition of “natural born Citizen” must provide our nation with the strongest check possible on foreign influence invading the Office of President and Commander in Chief of the Military. The Framers found the definition of “natural born Citizen” that would suit their purpose of protecting the future of and preserving the new nation not in the English common law and William Blackstone but in natural law and the law of nations as commented upon by Emer de Vattel, in his treatise, The Law of Nations, or Principles of the Laws of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, bk. 1, c. 19, sec. 212 (original French in 1758 and first English in 1759). This law became American common law. See my article entitled, ‘The Law of Nations or Principles of Natural Law’ as U.S. Federal Common Law Not English Common Law Define What an Article II Natural Born Citizen Is, found at http://puzo1.blogspot.com/2009/08/law-of-nations-and-not-english-common.html.


As James Brown Scott has correctly stated: "It is therefore to be expected that, when terms of municipal law are found in the Constitution, they are to be understood in the sense in which they were used in Blackstone's Commentaries; and when the law of nations is referred to, that its principles are to be understood in the sense in which Vattel defined them." James Brown Scott, The United States of America: A Study in International Organizations 439 (1920). There is little doubt that citizenship properly falls under the law of nations which became U.S. national law and not under the rules of municipal law. Citizenship has always been recognized as a topic that affects United States relations with other nations. On the question of national citizenship, Lynch v. Clarke, 1 Sand. Ch. 583, 3 N.Y. Leg. Obs. 236, 244 (1844), http://books.google.com/books?id=ERgvAAAAIAAJ&pg=PA251&dq=%22Natural+born+citizen%22#v=onepage&q=%22Natural%20born%20citizen%22&f=false (whose finding that Julia Lynch, born in New York to “alien parents, during their temporary sojourn” there, was a citizen of the United States, was in effect overruled by a 1860 New York state statute which provided at Sec. 5 that “[t]he citizens of the state are: 1. All persons born in this state and domiciled within it, except the children of transient aliens and of alien public ministers and consuls”), stated that how we define citizenship "has an essential bearing in our intercourse with other nations and the privileges conceded by them to our citizens; is therefore, not a matter of mere state concern. It is necessarily a national right and character. It appertains to us, not in respect to the State of New York, but in respect of the United States. . . ." Given that citizenship affects "the behavior of nation states with each other," Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), the Founders would have looked to the law of nations to define it for the needs of the new nation. Clearly, citizenship is both a national and international matter which affects the relations among nations. The Founders and Framers would have looked to the law of nations to define citizenship in the new nation and not the English common law.


The Founders and Framers relied upon Cicero, Grotius, Pufendorf, Locke, and Emer de Vattel (to name a few) in identifying and describing natural law and the law of nations. But they mostly looked to Emer de Vattel and his treatise, The Law of Nations, or Principles of the Laws of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, bk. 1, c. 19, sec. 212 (original French in 1758 and first English in 1759, and other subsequent French and English editions for not only authority on the meaning of natural law and the law of nations but also in constituting the new Constitutional Republic and in writing the new Constitution. The 1759 (aka 1760) edition was published in London in English. An explanation of the various editions is provided by Colonial Society of Massachusetts, Publications of the Colonial Society of Massachusetts, Volume 20 (A. Matthews ed. 1920). http://books.google.com/books?id=svE7AAAAIAAJ&pg=PA5&dq=benjamin+franklin+vattel&ei=W-yPStrRNaf4ygS12bC3Bw#v=onepage&q=benjamin%20franklin%20vattel&f=false

Vattel clearly distinguished between “citizens” (“citoyens” in French) and “naturals” (“naturels” in French). His title for Section 212 is “Des citoyens et naturels” (“Of citizens and naturals” which the English translators called "Of the citizens and natives"). He referred to the “citoyens” who were translated to “citizens” and “naturels” who were later translated to “natural-born citizens.” The “naturels” were the children of the “citoyens.” He therefore saw that there is a difference between the two types of citizens. He explained that difference thus: “The citizens are the members of the civil society: bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or indigenes, are those born in the country of parents who are citizens”. Id. bk. 1, c. 19, sec. 212. In the 1797 English edition, the translator replaced the word “indigenes” with “natural-born citizens.” Hence, it read: “The citizens are the members of the civil society: bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens.” Hence, while the definition of a “natural born citizen” never changed in Vattel’s texts, the term to express it was changed from “indigenes” to “natural-born citizens.” That the French word "naturels" was understood by the founders and framers to mean "natural born" prior to the writing of the Constitution and prior to the second English translation of Vattel's Law of Nations in 1797 is confirmed by the record of the Journal of the Continental Congress is 1781. Thus in 1787 John Jay clearly knew what the term "natural born Citizen" meant when he wrote his letter to George Washington suggesting it be added to the eligibility clause as to who can be President and Commander of our military since John Jay was an ardent supporter of Vattel's concepts and natural law and was an advocate for the Law of Nations as the new common law of the new U.S. federal government. John Jay became the first Chief Justice of the U.S. Supreme Court.

There exists evidence contemporaneous to the Founding that the Founders relied upon concepts of natural law, the law of nations, and Vattel to define national citizenship in the new republic and not English common law and Blackstone. Founder and highly respected historian, David Ramsay, who in 1789 wrote, A Dissertation on the Manners of Acquiring the Character and Privileges of a Citizen, defined the original citizens and while not using the term nevertheless provided a Founding period contemporaneous definition of a “natural born Citizen,” as well and in so doing relied upon a definition of an original “citizen” and a “natural born citizen” as given by Vattel and not upon one provided by the English common law or Blackstone (both of which defined a “natural born subject” and not a “natural born Citizen” and did not distinguish between a “subject” and a “natural born subject”). Additionally, Rep. William Smith during the 1789 Congressional hearings on whether he was a “citizen of the United States” of seven years (not to be confused with an Article II “natural born Citizen”) which status he needed under Article I, Section 2, Clause 2 to be eligible to sit as a member of the House of Representatives, cited Vattel and espoused and relied upon his definition of a “citizen” and not upon that provided by the English common law or Blackstone to define citizenship in the United States and as authority to prove that he was a “citizen of the United States” of seven years.

During the Founding, the English common law was selectively adopted only by the states and applied there to resolve local issues such as arising in contracts, inheritance, property, torts, matrimony, criminal procedure, etc. But that common law was not adopted on the national level. National law only included the "Constitution, the Laws of the United States, and Treaties..." Article III, Section 2, Clause 1. We know from Article I, Section 8, Clause 10 that the Framers included "the Law of Nations" as part of "the Laws of the United States." While the Founders and Framers relied heavily upon Emer de Vattel for justification for the revolution and in writing the Constitution, this reference is to the body of law then called the law of nations, not Vattel's treatise called, The Law of Nations," which explains how the law of nations is based on natural law and presented what that law was. The law of nations which was relevant on relations among nations specifically addressed what a "citizen" and "natural born citizen" was. The English common law did selectively make its way into the Constitution by way of the Bill of Rights (the first ten Amendments) which was ratified on December 15, 1791. But the Bill of Rights did not address citizenship or nationality as did the law of nations.

The following United States Supreme Court cases and cases from other courts have confirmed that national citizenship has been defined under American common law which has had its genesis in natural law and the law of nations as explicated by Vattel and not under the English common law or Blackstone: (1) The Venus, 12 U.S. (8 Cranch) 253, 289 (1814) (Chief Justice John Marshall, concurring and dissenting for other reasons, cited Vattel and provides his definition of natural born citizens); (2) Shanks v. Dupont, 28 U.S. 242, 245 (1830) (provided the same Vattelian definition without citing Vattel); (3) Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857) (Daniels, J., concurring, cited Vattel and The Law of Nations and provided his definition of natural born citizens and took out of Vattel’s definition the reference to “fathers” and “father” and replaced it with “parents” and “person,” respectively); (4) Slaughter-House Cases, 83 U.S. 36, 21 L.Ed. 394, 16 Wall. 36(1872) (in explaining the meaning of the Fourteenth Amendment clause, “subject to the jurisdiction thereof,” said that the clause “was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States”); (5) Minor v. Happersett, 88 U.S. 162, 167-68 (1875) (provided the same Vattelian definition without citing Vattel); (6) Ex parte Reynolds, 20 F.Cas. 582, 5 Dill. 394, No. 11,719 (C.C.W.D.Ark 1879) (provided the same Vattelian definition and cites Vattel); (7) Elk v. Wilkins, 112 U.S. 94 (1884) (“the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations” are not citizens under the Fourteenth Amendment because they are not subject to the jurisdiction of the United States); (8) United States v. Ward, 42 F.320 (C.C.S.D.Cal. 1890) (provided the same Vattelian definition and cited Vattel); (9) U.S. v. Wong Kim Ark, 169 U.S. 649, 708 (1898) (distinguished between a “natural born Citizen” and a “citizen of the United States” and cited Vattel and quoted his definition of “natural born Citizen” as did Minor v. Happersett); (10) and Perkins v. Elg, 307 U.S. 325 (1939) (other than Minor v. Happersett, the only U.S. Supreme Court decision that declared someone a “natural born Citizen.” The person was born in the United States to a citizen father and citizen mother through derivative citizenship).

Further evidence that the English common law and Blackstone did not prevail in the United States to define national citizenship is the cases of Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), holding that blacks whether slaves or free did not acquire United States citizenship at birth even though they were born in the United States and Elk v. Wilkins, 112 U.S. 94, 102 (1884), holding that American Indians did not acquire United States citizenship at birth even though they were born in the United States. English common law, with the exception for children of diplomats and invading armies, only required birth within the dominion without any reference to the citizenship status of the parents to grant “natural born subject” status. Yet, under these early decisions of our Supreme Court both Indians and blacks even if born in the United States were denied initial membership in the United States.

There does not exist one U.S. Supreme Court decision that defined national citizenship under English common law as commented upon by Blackstone, except for U.S. v. Wong Kim Ark, 169 U.S. 649, 708 (1898). This decision defined a Fourteenth Amendment born “citizen of the United States” (not to be conflated with an Article II “natural born Citizen”) under colonial English common law rather than under natural law, the law of nations, and American common law which up to that time the Supreme Court had always relied upon to define national citizenship in the United States. There was no need for Wong Kim Ark to resort to the English common law, for Vattel tells us in Section 215 that if the father [meaning parents because of unity of husband and wife] has [have] “entirely quitted his [their] country in order to settle elsewhere,” i.e., has [have] become a “perpetual inhabitant” of that other country, and has [have] a child in that other country, the father [those parents] will become a member [members] of that other society and his [their] child born in that country will follow his [their] condition and also become a member of that same society. Vattel considered these children to be only “members” of that country which under Section 212 translates to “citizens” and not “natural-born citizens.” He did not say that they become “natural born citizens” of that country. Vattel clearly distinguished between the two, with initial “members” of a society being just “citizens,” not “natural-born citizens.” This dichotomy of citizenship is consistent with the views of Samuel von Pufendorf who divided born citizens into two categories, the original citizens and their descendents. Note that he called the children of the original citizens “Indigenes, or Natives.” He stated: “Citizens are either Originally so; that is, such as are born in the Place, and upon that Account claim their Privileges; Or else, Adscititious; that is, such as come from Foreign Parts. Of the first Sort, are either those who at first were present and concerned in the forming of the said Society, or their Descendants, who we call Indigenes, or Natives. Of the other Sort are those who come from Foreign Parts in order to settle themselves there. As for those who come thither only to make a short Stay, although they are for that Time subject to the Laws of the Place; nevertheless, they are not looked upon as Citizens, but are called Strangers or Sojourners.” The Whole Duty of Man According to the Laws of Nature (William Tooke trans., Ian Hunter & David Saunders, eds., Liberty Fund 2003, Book II, Chapter 6, xiii, 1691).

Given that Wong Kim Ark found that Wong was born in the United States to alien parents who were domiciled in the United States, the Court could have also found that Wong’s parents were “perpetual inhabitants” of the United States and that Wong was born a member of American society (born subject to the jurisdiction of the United States) and thus a born “citizen of the United States” under the Fourteenth Amendment by using Vattel and the law of nations. Under such a scenario, Wong would be treated the same as an original citizen. We can only speculate why Justice Gray did not use natural law, the law of nations, and American common law (meaning Vattel’s rules on citizenship) to declare Wong a “citizen of the United States” like Chief Justice Waite did in Minor to show that Happersett was a “natural-born citizen.” One thing that comes to mind, however, is that if Justice Gray would have relied upon Vattel and American common law rather than English common law to declare Wong a “citizen of the United States,” if the public knew of Arthur's alien birth circumstances, and if someone would have raised the issue, he would have had to acknowledge that President Chester Arthur, the President who appointed him to the Supreme Court in 1881, was not eligible to be Vice-President or President because he was born in the United States to an alien father and mother (his U.S. born mother also became an alien through then merger of citizenship into the alien father) and at most he would have been a born “citizen of the United States” but not an Article II “natural born Citizen.” Apart from the fact that the American electorate and public was not aware back then that Arthur was born to a non-citizen father, application of the English common law further obscured Arthur's ineligibility. In this connection, we should also consider Senate Resolution 511, passed by the Senate on April 30, 2008, to declare Senator John McCain a “natural born Citizen” and the legal analysis of Theodore Olson (former Solicitor General) and Laurence Tribe (Harvard Law School Professor) on which the U.S. Senate relied to come to its conclusion regarding McCain status and which Senator Leahy requested be printed in the Record. Olson and Tribe did not use Vattel’s Section 217’s born abroad to citizen parents while serving “in the armies of the state” as a ground to declare Senator John McCain a “natural born Citizen.” Their using Vattel would have exposed Putative President Obama’s ineligibility to be President the same as Justice Gray using Vattel would have shown President Arthur’s ineligibility for that same office.

It is critical to understand that Wong Kim Ark did not define a “natural born Citizen,” for the Court recognized that Minor v. Happersett had already done that in 1875 and did not object to that definition. Rather, the Court defined a born “citizen of the United States” under the Fourteenth Amendment which only defines initial membership in American society and did not amend Article II, Section 1, Clause 5’s definition of a “natural born Citizen” which is that status reserved to those children born in the United States to a citizen father and citizen mother which makes them second generation United States citizens who are born with unity of citizenship and sole allegiance to the United States and who are therefore eligible to be President. Hence, Wong Kim Ark did not change the definition of an Article II “natural born Citizen.”

In addition to these Supreme Court cases, there exists other cases and historical evidence which show that the Founders and Framers rejected the English common law and Blackstone as a basis for rules of decision for the new federal government and nation. For sake of brevity, that evidence will not be discussed here. The Founders and Framers would not have rejected the English common law and Blackstone at the federal level and then at the same time relied upon those sources to define generally who the people of the new nation were going to be and specifically who among those people could hold the highest offices in government including the office of President and Commander in Chief of the Military.

Minor told us that “At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first.” Minor, 169 U.S. at 679-80. So we can see that the legal and political battles over citizenship have not been over the meaning of a “natural born Citizen. Rather, they have been over who can be a “citizen of the United States” or in other words, who can be accepted as an initial member of the political society known as the United States. The battle over who can be an initial member of American society has existed in our history because the United States is the product of conquest (of the American Indians), revolution ( against Great Britain), and immigration (involving not only “white” Europeans but also Asians and others who fell outside that description). This battle has also raged because the institution of slavery involving blacks brought to the colonies from Africa existed at the time of the Founding and up to 1865 when the Civil War ended. Hence, because of this historical development, the United States has found itself populated with people of different races, colors, national origins, religions, and ethnicities. In the early years of the English colonies, even religion was a factor that could prevent one from becoming a citizen. James Kettner, The Development of American Citizenship, 1608-1879 (1978). The problem for defining an Article II “natural born Citizen” is that we have lost sight of the fact that historically our courts and political institutions have struggled to define a “citizen of the United States” or who can be a member of the political society called the United States and not a “natural born Citizen.” It is this struggle that produced the Civil Rights Act of 1866, the Fourteenth Amendment, and other special Congressional acts and treaties allowing American Indians to become citizens at birth.

The Constitution should be honored and enforced in the way that it was written and originally intended by the Framers rather than in a way that pleases political parties or some political majority. Needed changes to it brought about by social evolution should not be made for political expediency by political parties or voting majorities without going through the formal amendment process prescribed by the Constitution itself in Article V. It has always been Emer de Vattel that provided our nation with the definition of an Article II “natural born Citizen’ and not William Blackstone. It is this definition that the Founders and Framers used to define the clause and it is this definition which should be enforced for the national security reasons of it being there if we are to be true to the Constitution and the rule of law.

Obama fails to meet this definition because if he was born in Hawaii, he was born to a British father and a U.S. citizen mother and he himself was born a British citizen under the British Nationality Act of 1948, causing him to be born with allegiance to Great Britain and to the United States. The U.S. State Department has confirmed that Obama was born with dual allegiances. Leventhal cites FactCheck.org to state, "Obama was originally both a U.S. citizen and a citizen of the United Kingdom and Colonies from 1961 to 1963 given that his father was from Kenya, which gained its independence from the British Empire in 1963. Upon independence, Obama became both a U.S. and Kenyan citizen from 1963 to 1982 [should be 1984], and solely a U.S. citizen after that." The entry "The Obama Birth Controversy" was written by Todd Leventhal, the chief of the Counter-Misinformation Team for the U.S. Department of State.

While today our law does not provide for merger of the wife’s citizenship into that of the husband, Obama was still born to an alien father and as a British citizen himself, thereby causing him to lack unity of citizenship and sole allegiance to the United States at birth, necessary conditions to be an Article II “natural born Citizen.” It should be noted that Obama's father was in the United States on a temporary student visa and he returned to Kenya after his studies were complete. Hence, he never had an intention to become domiciled in the United States. On the other hand, Obama's mother was not only a U.S. citizen but also domiciled in the United States. Assuming that Obama’s parents were domiciled in the United States and that he was born in the United States (a fact which he has yet to conclusively prove), which would arguably all make him “subject to the jurisdiction thereof,” he was at most born a “citizen of the United States” under the Fourteenth Amendment and a citizen of Great Britain under the British Nationality Act of 1948. While such dual citizenship creates dual allegiances, under current interpretation of the Fourteenth Amendment’s “subject to the jurisdiction thereof” clause, such dual allegiances would not prevent him from being a born “citizen of the United States.” But they would prevent him from being an Article II “natural born Citizen,” which constitutional status does not produce dual allegiances at birth. Obama is therefore not eligible to be President.

Finally, if Obama was not born in the United States, he would not even be a “citizen of the United States” under the version of Section 301(g) of the Immigration Nationality Act that was in effect in 1961 because his 18-year-old U.S. citizen mother was too young when he was born to pass her U.S. citizenship to him under that law as it existed then.

Mario Apuzzo, Esq.
http://puzo1.blogspot.com/
November 1, 2010
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How to Fix Medicaid

How to Fix Medicaid by John Hood

The sweeping health-care legislation enacted this spring is many things. It is a vast expansion of federal power. It is a budget-busting entitlement. It is a regulatory nightmare. But to a far greater degree than its advocates have acknowledged, it is also a massive expansion of Medicaid. This means that, under the new law, a hugely expensive program already deep in crisis would not only continue essentially unreformed: It would be put at the very center of America's health-care system.

Medicaid is a joint federal-state program of health coverage for the poor. Its exact rules and practices vary from state to state; generally speaking, however, it is open to people with low incomes (below or just above the federal poverty level) and with some additional compelling condition of need — like being a parent, or having a serious disability. With these eligibility restrictions in place, Medicaid already covers 60 million Americans and accounts for 16 cents of every dollar spent on medical services in the United States.

Under Obamacare, though, people with household incomes up to 133% of the federal poverty level (about $14,400 for individuals, or $29,300 for a family of four) will be eligible for Medicaid regardless of whether they meet any of the other conditions of need. As a result of these loosened eligibility requirements, the bill's proponents expect some 16 million more Americans to sign up for Medicaid between 2014 (when the new rules go into effect) and 2019. This enormous increase in the Medicaid rolls represents about half of Obamacare's projected reduction in the number of uninsured Americans.

On paper, this Medicaid expansion also accounts for about half of the Congressional Budget Office's $940 billion cost projection over the new law's first 10 years. But the effects of expanding Medicaid — one of the most expensive, unwieldy, and perverse creations of American government — will almost certainly be much larger, more extensive, and more dramatic than the CBO's computations suggest.

It is likely, for instance, that far more than 16 million additional people will sign up for Medicaid. As a result of the new eligibility rules, many Americans who are now insured through their employers — but who nonetheless have incomes below the new threshold — will suddenly be eligible for essentially free health care from the government. Many of their employers, as small businesses, will be exempt from any penalties for dropping their employees' coverage. These workers will thus be "crowded out" of private coverage into Medicaid, vastly increasing public costs.

Although there are no hard estimates of the anticipated crowd-out effect of the new law, past experience with Medicaid expansions provides plenty of reasons to be concerned. For example, the National Center for Policy Analysis estimates that of every tax dollar spent on Medicaid expansions during the 1990s, at least half went to new enrollees who dropped their private health plans to join the program, rather than to previously uninsured people. For the related State Children's Health Insurance Program established in the late 1990s, the crowd-out effect averaged about 60%.

Obamacare will therefore put Medicaid increasingly at the heart of our health-care system. For reformers truly interested in "bending the cost curve," this is very bad news: The flaws of the existing Medicaid program — and the extraordinary strain they place on the nation's finances — are high among the reasons why health-care reform is needed in the first place. And Obamacare's exacerbation of those flaws is high among the reasons why the new law will need to be rolled back, and why any serious alternative proposal for improving our health-care system must include Medicaid reform.

THE BOTTOM  LAYER

The slapdash way in which a huge and unwieldy expansion of Medicaid became the centerpiece of Obamacare is very much in line with the entitlement's pedigree. From the outset, the story of Medicaid has been one of carelessness, poor planning, and ill-conceived policy design.

The story begins in 1934, when President Franklin Roosevelt appointed a commission to fashion sweeping social-welfare legislation that he intended to champion the following year. The commission's final report proposed the programs that would become Social Security and Aid to Families with Dependent Children, as well as a national health-insurance plan resembling programs that, by then, had already been adopted in several European countries.

But Roosevelt decided that the commission's policy ambitions exceeded his political appetite, and so he left the health-care component out of the 1935 Social Security Act. Still, advocates in and out of government kept pushing. In 1937, another Roosevelt-administration commission outlined a long-term strategy for enacting a "comprehensive National Health Program"; this initiative would have included federal health and disability insurance funded by payroll taxes, as well as federal support for hospitals and federal aid for state medical-assistance programs. Roosevelt did not act on those proposals, but each of them would, in one form or another, become federal law in the course of the following 30 years.

During the 1940s and '50s, a succession of liberal politicians championed national health-insurance legislation only to see their proposals wilt under the glare of unsympathetic voters (and the American Medical Association). So advocates adopted a more incremental strategy. In 1956, Congress and the Eisenhower administration added disability benefits to Social Security. And in 1960, two congressional Democrats — Arkansas representative Wilbur Mills and Oklahoma senator Robert Kerr — teamed up to pitch a federal bailout of failing state programs that provided relief to destitute seniors and people with severe physical or mental disabilities. Unlike calls for universal health care, the Kerr-Mills proposal built on what most lawmakers had long considered to be a legitimate role for government (albeit one that belonged at the state level): to secure housing, sustenance, and basic care for a small group of clearly infirm people whose needs far exceeded their families' resources (and who might otherwise populate street corners or prisons). Mills in particular saw the 1960 legislation as a way to head off any broader, more intrusive federal legislation on health care. He was, of course, mistaken: The program created a precedent for federal bailouts of state relief programs, but without actually appropriating much money for them. Emboldened, hospitals and state governments pushed for more.

In 1964, after resounding Democratic electoral victories, President Lyndon Johnson decided it was time to enact the health-care proposals that had been left out of the Social Security Act nearly 30 years earlier. As the debate began, there were three significant ideas on the table. The main Democratic bill, which reporters soon dubbed "Medi-care," proposed a universal, government-run health plan for senior citizens, to be funded by payroll taxes. A Republican bill that earned the less elegant nickname "Better-care" proposed a voluntary health plan for seniors that would have been funded by a combination of premiums and general tax revenues. A third, bipartisan bill was called "Elder-care" and, unlike previous legislative efforts, had the backing of the American Medical Association; it sought to strengthen the Kerr-Mills system of federal grants to state programs caring for the indigent, the disabled, and poor seniors in nursing homes.


By this time, Wilbur Mills had become chairman of the House Ways and Means Committee, which made him central to the process of crafting the final bill. He decided to take that process behind closed doors and to fashion what came to be called the "three-layer cake" — an amalgam of the three bills. The Democratic bill became Medicare Part A, which provides hospitalization insurance. The Republican bill mutated into Medicare Part B, covering physician charges but retaining only a semblance of voluntary participation and patient premiums. Elder-care morphed into Medicaid — attracting the least legislative attention of the three proposals, and serving primarily to satisfy insistent demands for greater federal support for state health-care programs tending to the poorest of the poor. Compared to the other two components of the legislation, Medicaid was almost an afterthought.

This lack of planning and careful attention certainly revealed itself in the program's haphazard design. Unlike the two parts of Medicare, Medicaid is a joint federal-state undertaking: Each state administers its own Medicaid system, though it must follow broad federal guidelines for the program's design and operation. Funding responsibilities are shared by the federal government and the states in accordance with a formula based largely on the scope of poverty within each state; wealthier states, like Connecticut and Colorado, receive a 50% federal share, while poorer states receive significantly larger federal subsidies. (The largest share this year is Mississippi's, at 74.7%.)

Wilbur Mills and other early champions of the program denied that Medicaid was intended to be another large entitlement; they saw it merely as a safety net for the poorest and most helpless Americans. But it didn't take long for state politicians and lawyers to figure out how to maximize the participation of the able-bodied poor, and for financial advisors to juggle the assets of middle-class seniors so that Medicaid would pay for their nursing-home bills. The sloppiness of the legislation — including the many loopholes it opened up — made out-of-control costs inevitable.

A BALLOONING ENTITLEMENT

The sheer scope of the Medicaid program today would have shocked its designers. Politicians, analysts, and the media tend to focus their attention on the controversial management, rapid growth, and shaky finances of Medicare — and yet Medicaid enrolls more people than Medicare, spends almost as much on hospital and doctor payments, and presents the government and health providers with at least as many fiscal and managerial headaches.

Medicaid is also projected to grow more rapidly than Medicare — and was even before the passage of Obamacare. In fact, if it hadn't been for the Bush administration's Medicare expansion in 2003, Medicaid would probably already be the country's most expensive health-care entitlement. According to the Department of Health and Human Services, Medicare expenditures will be about $516 billion in 2010, while Medicaid (including the State Children's Health Insurance Program) will cost $436 billion (to be shared by states and the federal Treasury).

Many factors have contributed to Medicaid's astonishing growth rate. At its inception in 1965, the program cost state and federal taxpayers only $1.3 billion, or about $9 billion in today's dollars. Projected to increase only modestly, annual Medicaid spending (combined state and federal) in fact exploded — to $29 billion in 1970, $68 billion in 1980, $121 billion in 1990, and $250 billion in 2000 (all in 2010 dollars). Obviously, the growth in the cost of health care more generally has outpaced that of most other goods and services during the same period. But in most years since 1965, Medicaid spending has grown faster than either private health spending or Medicare spending.

One reason for this cost explosion has been Medicaid's repeated expansions of eligibility and benefits — expansions that are encouraged by the program's matching-funds design. Under the current system, federal policymakers establish general guidelines, while state policymakers set the specific provisions of their own Medicaid programs. Often, county-level officials are responsible for the actual implementation and enforcement of eligibility and benefit rules.

This shared funding and administration of Medicaid has created a host of perverse incentives, especially for policymakers at the state and local levels. They reap all the political benefits of more generous coverage or looser eligibility rules, but pay only a fraction of the financial cost of such largesse, since the federal government picks up most of the tab. And during downturns and times of lean budgets, state lawmakers will bear the entire political burden if they allow steep eligibility cuts — but will reap only a portion of the fiscal benefits, since most of the cost savings will accrue to the federal government. State and local officials are thus more inclined to spend lavishly on Medicaid than on programs funded entirely by the state.

Moreover, because of both historical accident and the program's design, Medicaid has ended up paying for a very large share of the most expensive of all medical services. From 1960 to 1990, the fastest-growing category of health-care spending was long-term care: stays in nursing homes and home-health visits for elderly and disabled patients. Since 1990, increases in nursing-home spending have moderated some, but the cost of home-based health care has skyrocketed.

Nearly all Americans over the age of 65 are enrolled in Medicare to cover routine doctor visits, hospitalizations, drugs, and other medical services. But Medicare does not cover long-term care or nursing-home stays. For seniors with low incomes, though, Medicaid does pay for such costs: Indeed, it is the single largest payer of nursing-home bills in America (covering 43% of all costs). It also pays one-third of all home-based health-care bills — a number that is projected to grow to one-half by the end of the decade. Thus, as America's population has aged, Medicaid has bloated.

Finally, because Medicaid is, in principle, a means-tested program of public assistance, its design makes it extremely difficult to introduce cost-saving incentives that motivate recipients to think and act like consumers. Federal laws and policies restrict how much cost-sharing states can impose on recipients. And while some states have conducted promising experiments with financial incentives — such as cash accounts managed by recipients — any state's room to maneuver is limited by federal law. Medicaid has also been plagued for years by fraudulent enrollments and claims; such abuse is exacerbated by the fact that the program involves a class of claimants who have little incentive to cooperate with efforts to streamline medical care or reduce long-term expenses.

In short, Medicaid's inherent flaws guarantee that the program's burgeoning costs will endanger America's fiscal health. Like Medicare and Social Security, Medicaid represents an implicit promise of expensive benefits, the costs of which will far exceed future revenues. But unlike the costs of Medicare and Social Security, future Medicaid expenses won't just show up on the books of a heavily indebted federal Treasury: They also represent one of the largest fiscal obligations of state governments, which, for the most part, are not allowed to issue debt for operating expenses. With the program already accounting for more than one-fifth of total state operating budgets, Medicaid growth will mean painful state tax increases, reductions in basic state services like public safety and education, or some combination of both.

Consider the case of California, one of the nation's hardest-hit states. Already facing a $20 billion budget hole in the current fiscal year, California will see its Medicaid caseload rise by nearly 25% after Obamacare is fully implemented in 2014, costing state taxpayers another $2 to $3 billion a year. "We face enormous challenges just sustaining our existing program," California's Medicaid administrator told Bloomberg News in March. "I just don't see states having the capacity to move forward on these changes in this environment."

It is also important to remember that Medicaid is not just a health-care program. It is the largest single component of America's welfare state, far outweighing the dollar value of cash assistance, food stamps, or housing aid. Like these other programs, Medicaid often provides implicit disincentives to work, since increases in income can mean the loss of eligibility for a very valuable benefit. Unless future policymakers introduce reforms to help break the generational cycle of dependency — fixes based on principles that have worked in other welfare overhauls, like time limits and work requirements — the prospect of losing thousands of dollars a year in essentially free health care will perpetuate strong incentives against moving up the economic ladder. Refusing work, or accepting off-the-books jobs with few long-term prospects, will become rational choices for families facing the steep effective tax rates created by the eligibility rules for Medicaid (and soon to be made worse by Obamacare).

In this sense, as in so many others, the new health-care law makes a longstanding problem all the more difficult to solve. But simply rolling back Obamacare's expansion of Medicaid will not be enough: Any genuine reform of our health-care system will need to address the structural flaws that have long been the basis of Medicaid's woes. Doing so will be enormously difficult — as the problem encompasses more than just issues of design, administration, or health economics.

THE MANY MEDICAIDS

While Medicaid does formally exist as a single health-care program administered and financed jointly by states and the federal government, it can also be thought of as an amalgam of four different programs — each with its own caseload, rules, and dynamics.

First, Medicaid is a program for healthy low-income children and some working-age adults. Prior to Obamacare, simply having an income near (or even below) the poverty line would not in itself make someone eligible for Medicaid. Generally speaking, children had to be involved — a rule left over from the era in which welfare was aimed at families lacking a breadwinner. Pregnant women, babies, grade-schoolers, and their mothers have thus made up the majority of enrollees in this category, with some states more willing than others to go beyond these mandatory populations. If Obamacare is fully implemented, this category will grow substantially in the coming years; even now, it represents the largest bloc of Medicaid recipients, accounting for nearly three-quarters of the program's caseload. But it is also the least costly per person: Children and young adults have low average medical claims. About a third of the Medicaid budget is spent on these enrollees.

Second, Medicaid covers individuals with severe physical disabilities. Usually qualifying as a result of their eligibility for the Supplemental Security Income program under Social Security, individuals with significant work-impairing disabilities have traditionally made up a small share of Medicaid recipients. They have, however, consumed by far the most expensive services — which include not just medical care, but often a variety of other benefits, including caregiver assistance with daily tasks as well as room and board.

Third, Medicaid covers individuals with severe mental illnesses or addictions. While technically the two groups of disabled recipients are in the same boat when it comes to eligibility rules — together making up about one-fifth of the Medicaid population, but consuming well over 40% of its budget — it is important to recognize that those suffering from mental illness or substance abuse pose special problems for eligibility determination, case management, and even public willingness to support long-term assistance.

Finally, as discussed above, Medicaid also covers seniors requiring long-term care, and therefore plays a significant role in the lives of many seniors when accidents, diseases, or the inevitable infirmities of age render them unable to perform basic tasks. Those who meet the income test, or can show that their resources will swiftly be spent down to the income threshold, can qualify for Medicaid assistance for institutional or home-based care.

This coverage is intended to ensure that truly poor and ill seniors will not be forced to suffer without the long-term care they need to survive, simply because they cannot pay. The unfortunate reality, however, is that there is now a large industry of lawyers, accountants, and financial planners skilled at arranging the assets of middle-class families so that, when the time comes, their parents or grandparents will qualify for Medicaid. By moving assets around, transferring money or property to children, and otherwise gaming the system, middle-class seniors can save their families the immense cost of long-term care (at the public's expense, of course). In total, seniors account for 10% of Medicaid enrollees — and one-quarter of Medicaid spending.

A great deal of the problem with Medicaid, then, is that unlike with Medicare — which, for all its manifest woes, is a relatively straightforward program — just reaching an agreement about what needs to be fixed (let alone how) is a serious challenge.

For example, recognizing that Medicaid services are the most valuable of the welfare benefits available to low-income Americans, a reform-minded policymaker might want to apply to Medicaid some of the time limits and work requirements that have proven successful in reducing cash-welfare rolls. Such an approach, however, would make little sense in the case of an institutionalized person with a permanent disability. Similarly, measures to encourage families to save, buy insurance, or otherwise prepare for the possibility that aging relatives will need long-term care may help moderate Medicaid's costs in the future. But they won't do much to reduce Medicaid rolls in the short run, given, for instance, the number of seniors already receiving long-term care on the public's dime.

So before we outline a coherent, realistic strategy for reforming Medicaid, we must think through how the various Medicaids we currently have match up with America's financial realities, constitutional principles, and public expectations. After all, what we choose to do about Medicaid depends on how we choose to define federalism, and how we conceive of the proper role of government in providing a medical safety net for a diverse group of citizens — including poor children, the mentally ill, addicts, the disabled, and chronically ill elderly people who have little support from their families or communities.

It is also crucial to think through the difficult political obstacles standing in the way of serious reform — obstacles that have been made all the more daunting by the passage of Obamacare this spring. If Republicans win control of one or even both chambers of Congress in November, they may well be able to revise or, through the appropriations process, slow the implementation of parts of the legislation over the following two years. But an outright repeal of the bill — including the forthcoming Medicaid expansion — would be unlikely to overcome a presidential veto; a complete rollback, therefore, would need to wait until after 2012.

A detailed and forceful case for a different approach, however, cannot wait that long. A clear explanation of Medicaid's problems, of the reasons why expanding the program and putting it at the center of our health-care system would be a disaster, and of the ways in which the program can be improved must be part of the larger case for undoing Obamacare (and for replacing it with genuine health-care reform).

Starting now, reformers need to outline a strategy for fixing Medicaid that conforms with political realities; offers a clear vision of what government should and should not do to subsidize medical assistance; and restores the important roles of individual thrift, family care, private charity, community action, and state policymaking — values that an increasingly federalized Medicaid system has weakened or supplanted.

FIXING MEDICAID

A meaningful reform of the Medicaid system will need to reduce the program's size, scope, and cost to taxpayers; increase self-reliance among the middle class; eliminate disincentives for poor Americans to become middle-class Americans; return power and responsibility to states, localities, charities, and families; and ensure that our scarce public resources actually end up serving those most in need of public help. Policymakers can begin by dividing the work into four key reform elements.

First, they should work to convert Medicaid itself into a more specialized program of medical assistance to those with chronic physical or mental infirmities who are, for all practical purposes, wards of the state. This was, after all, the original idea behind the state-based relief programs that Medicaid was created to bail out nearly half a century ago. Both conceptually and practically, it makes sense to distinguish individuals with chronic medical conditions — those likely to produce long-term dependency on the state — from healthy individuals who, due to job loss or other short-term emergencies, find themselves without health insurance or savings. Medicaid ought to be focused on the needs of the former, not the latter; efforts to provide a temporary safety net to people who are, by and large, working and contributing members of society should take a different form. Congress should rewrite eligibility standards accordingly, creating a separate program to subsidize private health-insurance premiums for the able-bodied poor (as described below).

As for the management of the remaining long-term Medicaid caseload, states should receive more latitude to experiment with initiatives to coordinate care, both within the practice of medicine and between Medicaid and other state agencies. For example, state agencies need to work together to avoid creating massive costs for one another — such as when a Medicaid-eligible patient with severe mental illness or addiction goes off his medications, commits crimes or public disturbances, ends up in jail, and then gets transported to a psychiatric hospital or detox center. Tracking patients through the system can help limit these destructive cycles.

In experimenting with such initiatives, states should be careful to avoid the myth of prevention savings: the notion that spending more money on the front end can save much more money on the back end. Preventive medicine is often good medicine, as it helps avoid chronic diseases like diabetes or heart disease; but, as decades of data have shown, it does not save money. Preventive medicine is itself quite expensive, and in most cases people who consume a preventive service would not have needed a more expensive intervention later on anyway (that is, they would not have developed diabetes or heart disease even without the preventive care). As a result, the costs to the system as a whole outweigh the financial benefits. Preventive care must therefore be counted as an expense — even if often a worthwhile one — not a savings.

There are, of course, other proven and effective ways to save — by using vouchers to encourage careful spending or by assigning case managers to help recipients use their benefits efficiently, for instance. And while there is no silver bullet, state policymakers should be encouraged to try those streamlining efforts that they think stand the best chance of reducing Medicaid waste in their states. Above all, states must have the right incentives to lower costs — for example, the ability to keep all of the potential savings from a politically difficult yet effective reform — as well as good reasons to strictly enforce eligibility rules, so that new costs do not overwhelm any savings their reforms might produce.

Second, policymakers should convert Medicaid coverage for low-income but healthy children and working-age adults into a system that subsidizes the payment of premiums for private health-insurance plans. For instance, a future Congress could convert Obamacare's bewildering array of cash payments and tax credits into a universal tax credit, conferring what amounts to an exemption from income and payroll taxes for a fixed amount of household spending on (or saving for) health care.

The tax credit could take the place of the existing unlimited exemption for employer-based plans (as proposed by John McCain in his 2008 presidential campaign, and by several Republican members of Congress since). Such a fixed-dollar credit would be worth most to individuals with children and low incomes, reversing the current dynamic in which unlimited tax deductibility confers the greatest benefit on upper-income Americans and those who work for large employers. Families would be free to apply their tax credits to the purchase of health plans and toward health savings accounts (into which states should be allowed to contribute additional funds now earmarked for Medicaid to help lower-income people).

The key to a successful system of direct premium supports for jobless or low-income Americans and their families, however, is ensuring that it is thought of more as a welfare program than as a health-care program. Recipients should be required to meet the same work or job-search rules currently required for cash welfare benefits. The intention should be to provide temporary, transitional assistance for those down on their luck, not a means of perpetuating dependency.

Third, policymakers should convert the current complex system of federal Medicaid funding into annual block grants to the states, adjusted annually to accommodate medical inflation. Today, Medicaid is an open-ended entitlement: The states set eligibility standards, spend money to cover services for people who meet those standards, and essentially bill the federal government for its share of the costs on a rolling basis. The levels of spending are therefore never fixed, and states do their best to extract more money from Washington by gaming the system's arcane rules.

A single annual block grant would instead allow state policymakers to know exactly how much federal money they will receive for the year and to budget accordingly; it would also allow federal policymakers to have more predictable levels of spending. An added benefit of a block-grant system is that it would give state governments more responsibility for their Medicaid funding: If states choose to expand eligibility or benefits in their programs, they should be required to raise the additional funds beyond their block grants (either by cutting spending elsewhere, or raising taxes). Because most states must balance their budgets every year, they won't be able to paper over Medicaid expansions with additional debt, as Washington can do. Forcing states to responsibly manage one lump sum of money will thus make it harder for government to deceive taxpayers about the real costs of the program. And on the other side of the ledger, states should be able to recoup most of the savings from any disease-management initiatives, asset-recovery programs, or benefit reductions they implement, rather than being forced to send most of the savings they may obtain (often at great effort and political risk) back to Washington to be redistributed to other, more profligate states.

As for Medicaid's current array of mandatory and optional services, federal policymakers should simplify the rules by setting the initial federal grant at the amount required to fund only mandatory services (like doctor visits and hospital stays). States would be allowed to provide additional coverage (for medical needs like dentures and eyeglasses), but only using their own dollars.

This would be a marked departure from the current system, under which state politicians have generally been able to expand Medicaid services and eligibility only to the extent that they could convince voters that the increases would be funded largely by the federal government. Some politicians have been more successful at selling this argument than others, which is why there are such enormous differences in Medicaid spending across the states. Moreover, while liberal states typically offer more generous programs and politically conservative states offer less generous ones, there does not seem to be much evidence that the states with more generous Medicaid programs have better health outcomes. So by getting the federal government out of the matching-grants business — and by letting states make and fund their own decisions about program expansions — policymakers will increase the likelihood that any additional tax dollars committed to Medicaid will make a real difference in the quality and availability of medical care.

Of course, one big political obstacle to block granting will be the debate over setting the initial grant baseline. Higher-spending states will want to freeze their current funding levels in place, which lower-spending states will see as unfair. Although a block-grant conversion would confer fiscal benefits on the country regardless of the starting point (by encouraging wiser spending decisions in the states), it would be preferable for Washington to set a baseline that, as much as possible, allocates a similar amount of federal funding per mandatory enrollee, adjusted for regional differences in medical prices. Under such a computation, New York would still receive substantially more federal dollars per low-income person than Mississippi; the difference in actual purchasing power, however, would be minimal.

Fourth, policymakers should encourage American families to save for long-term care. Beyond reversing Obamacare's attack on tax-free health savings accounts, this can be achieved by establishing generous tax relief for private long-term-care insurance, by dramatically tightening Medicaid eligibility rules, and by seriously stepping up eligibility enforcement.

While statistics show that most Americans entering retirement will not require lengthy and expensive nursing-home stays, some certainly will. Even more seniors face the prospect of other long-term expenses, such as home-based health care. Furthermore, the share of the population over the age of 85 is expected to increase by more than 50% in the next 15 years (as older people are in better health than ever before), so we can expect a significant increase in the number of seniors needing long-term care.

As with other major life expenses — like sending a child to college, or losing a job — public policy should encourage families to plan for the possibility of long-term care through prudent saving and insurance coverage (rather than encouraging reliance on the government to pay the bills, using taxes collected from thriftier families). And one obvious way federal and state policymakers can encourage thrift is by changing tax policy — restoring, and expanding, the health savings accounts that Obamacare strictly limits, and creating the aforementioned universal tax credit for health care (including the purchase of long-term-care insurance).

Still, those who study and sell such insurance insist that tax incentives alone won't be enough to induce American families to take the necessary steps to protect their assets against future long-term health-care expenses. The Medicaid-fraud industry of lawyers, accountants, and benefits consultants has been too successful in marketing the message that, with creative planning, middle-income families can ensure that their elderly relatives will qualify for Medicaid.

The only realistic way to change this public perception is to change the law so that it becomes both difficult and unappealing for middle-class seniors to qualify for Medicaid. To begin with, it should be made more difficult for people with expensive homes to receive coverage. Today, an individual's home equity up to $500,000 (and in some states up to $750,000) is excluded from the calculation of assets when determining Medicaid eligibility. Congress should set a date — far enough into the future to reduce political blowback and to allow families to adjust their plans — for phasing out all exemptions of home equity from these calculations. In addition, the existing rules against seniors' transferring assets to family members in order to meet Medicaid eligibility requirements — which take into account transfers of wealth reaching back five years before a person applies for Medicaid, and then limit that person's eligibility based on the amount transferred — should be extended to reach back at least 10 years.

At the same time, states should be far more aggressive in enforcing these rules, keeping in mind that every dollar not spent subsidizing the inheritance of a middle-class family is a dollar that can be spent on a truly needy senior with no family to rely on. Americans should be made to understand that if they want to place a relative in long-term care through Medicaid, they will have to either spend down all of the relative's assets — including the value of a home — or transfer those assets to the state after the relative's death (as current law already requires when a senior turns out to have had more assets at the time of his death than when he applied for Medicaid coverage). Families must be made to recognize that if they want to avoid these unpleasant eventualities, they will need to buy private insurance — not try to game the state.

STEPPING BACK FROM THE ABYSS

Reforming Medicaid has never been an easy prospect — and the passage of Obamacare has only made it more difficult. Many of the most powerful lobbies in Washington and in state capitals will work against any effort to fix what ails this deeply flawed entitlement. Liberal politicians, too, will obstruct the reform process at every step, recognizing (correctly) that such a restructuring of Medicaid would move America as far away from their ultimate goal — single-payer, government-run health care — as Obamacare moved America toward it.

But the simple truth is that American taxpayers cannot afford the status quo. Even before Obamacare, the combined cost of Medicaid, Medicare, and Social Security was projected to consume nearly 15% of gross domestic product by 2030 — up from less than 10% today. These entitlements are already falling into the red, and have an unfunded liability of nearly $100 trillion through the end of the century.

Obviously, all three programs are in need of serious change. But from the perspective of America's long-term fiscal health, Medicaid presents the most urgent challenge — because the program involves state governments that have far fewer options for contending with debt than Washington.

As much as Obamacare has complicated matters, it has also stirred up a great deal of public furor. This presents policymakers with an opportunity to roll back the law, and to implement meaningful reform of Medicaid in its place. Given what is at stake for the nation, it is an opportunity Americans cannot afford to let pass by.

John Hood is president of the John Locke Foundation, a state-policy think tank based in North Carolina, and the author of, among other books, Investor Politics.

You can find this online at:  http://www.nationalaffairs.com/publications/detail/how-to-fix-medicaid