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A new analysis from the Pew Foundation concludes that more Mexicans are leaving the United States than entering the United States. Specifically, from 2009 to 2014, 870,000 Mexicans entered the United States, but a million Mexicans left.

From 2009 to 2014, 1 million Mexicans and their families (including U.S.-born children) left the U.S. for Mexico,according to data from the 2014 Mexican National Survey of Demographic Dynamics (ENADID). U.S. census data for the same period show an estimated 870,000 Mexican nationals left Mexico to come to the U.S., a smaller number than the flow of families from the U.S. to Mexico.

Why have the number returning to Mexico increased? The primary reason is family reunification, although lack of work opportunities was also a factor:

Fully six-in-ten (61%) of those Mexicans who reported that in 2009 they were living in the U.S. and by 2014 were back in Mexico said they had moved back either to reunite with family or to start a family. In comparison, 14% said they had been deported from the U.S., and only a small share (6%) gave employment reasons (either to look for a job or because they got a job in Mexico).

Roughly 45,000 Mexicans who arrived in 2009, and returned before 2014, did so because they were unable to find employment here.

Lack of work in the U.S. was a more important reason for the 180,000 return migrants who lived in Mexico in 2009, left for the U.S. after that, and came back to Mexico between 2009 and 2014. One-quarter (25%) of more recent returnees said the main reason they came back was they had not been able to find a job, while 40% said the main reason was to reunite with family.

The inability to find jobs was due, in part, to the weakened U.S. economy:

The decline in the flow of Mexican immigrants to the U.S. is due to several reasons (Passel et al, 2012). The slow recovery of the U.S. economy after the Great Recession may have made the U.S. less attractive to potential Mexican migrants and may have pushed out some Mexican immigrants as the U.S. job market deteriorated.

These findings bolster one of the arguments that I and others have made concerning the lawfulness of DAPA. It is beyond dispute that Congress has only appropriated enough funds for the President to deport roughly 400,000 aliens per year. However, this was not the only means designed to control the population of aliens in the United States unlawfully. Rather, Congress created a series of complex interlocking mechanisms that may pressure aliens to self-deport. Self-deportation may be due to a desire to return to see family or an inability to gain employment in the United States. In this sense, the threat of formal removal–however unlikely–is not the only impetus for self-deportation. DAPA weakens these pressures in two important respects.

First, by granting deferred action to parents of citizens, DAPA directly thwarts Congress’s goal of making it harder to keep families together where the child is a citizen, but the parent is not.  Citizen children must wait up to 21-years before they can petition for a green card for their parents, and then the parent must leave the country, and seek consular processing abroad. During the two-decade-interregnum, the parent would be unable to obtain lawful employment, and could be subject to removal. The INA specifically countenances breaking apart families for considerable periods of time. DAPA disregards that. While this may seem a callous decision, it is reflected in both the text and history of the Immigration and Nationality Act. (This is true even though Congress has recognized in that deferred action may be granted–the specific goal trumps the general provision). As the Pew analysis concludes, hundreds of thousands of aliens self-deported in order to be closer with their families. DAPA subverts that incentive to self-deport, and instead works to keep families together. This is an admirable policy goal, but inconsistent with the tenor of the immigration laws.

Second, and perhaps more importantly, DAPA directly thwarts Congress’s goal of making it harder for aliens who are here illegally to find employment, and thus support themselves. Virtually all recipients of DAPA will receive work authorization, and be able to seek legal employment. It is safe to assume that many of the ~60,000 Mexicans who self-deported because they could not find suitable employment would be able to obtain lawful employment because of DAPA. The impetus for their decision to leave the country–inability to find work–very well may disappear as a direct consequence of DAPA. Gaining the ability to work legally, at or above the minimum wage, could cause aliens to think twice about leaving the country to gain work back home. Here too, DAPA is not consonant with congressional policy.

This study highlights how DAPA is manifestly contrary to the congressional scheme Congress designed. Formal removal is not the only avenue that Congress designed. Pressures that compel self-deportation are also at play. DAPA disregards those pressures.

UnitedHealth, one of the nations largest health insurance companies, threatened that it may not participate in the Obamacare federal exchanges in 2017 unless changes are made.

UnitedHealth Group, one of the nation’s largest health insurance companies, told investors Thursday morning that it was significantly lowering its profit estimates and blamed an expected loss of hundreds of millions of dollars selling individual policies under the federal health care law.

In light of the losses, the company warned that it was also weighing whether it would continue to offer individual coverage through the online exchanges for 2017.

The announcement comes as the latest blow to the market created under the Affordable Care Act to allow individuals who buy coverage on their own rather than through an employer better access to health insurance. As the law enters its third year, with open enrollment for 2016 now underway, many customers have faced sticker shock as premiums have risen significantly in some parts of the country, and some of the new companies offering coverage, including the so-called co-ops, have stopped selling coverage in recent weeks, leaving people with fewer options.

While the insurance giant has only been able to sell a fraction of policies to individuals through the exchanges (which some critics contend are not priced competitively), its discontent with the federal health care law could signal a broader industry pushback.

And UnitedHealth may also be using the news to prod the administration into making changes to the law or paying more of what the federal government owes insurers under one of the programs aimed at protecting them from losses in the early years. Federal officials have said they are paying less than 13 cents of every dollar they owe, although they say they will make additional payments later.

This is tremendous news, as it represents one of the first public statements of an insurance company suggesting that HealthCare.gov’s business model–which depends on voluntary participation by providers–is not working. Louise Radnofsky at the WSJ offers an overview of why the insurers are unhappy. In short–the core structural protections of Obamacare are not working to maintain sufficiently large risk pools of health buyers.

Mr. Hemsley said the company was worried about people essentially signing up for health plans only when they need to cover health expenses. The health law has a defined enrollment window (Nov. 1 to Jan. 31 for 2016) aimed at restricting people from signing up opportunistically. But skeptics have said that rules governing the “special enrollment period,” which allows people to sign up at other times if they have life changes, or simply learned about the penalty for going uninsured after the main deadline had passed last year, have been too lax. The company also indicated that people were dropping the coverage after they ran up big bills on it, raising questions about whether the penalties for going without insurance are acting as a sufficient incentive for people to be covered.

In the final chapter of Unprecedented, I warned that the individual mandate was not high enough to encourage people to purchase health insurance, if rates went too high. I also noted that in this toxic political environment, it was simply impossible for Congress to raise the penalty to match demand. Finally, there are even constitutional problems, because as the price of the penalty gets closer to the price of the cheapest policies, the Chief Justice’s saving construction begins to unravel.

So what does this mean practically? At the ACA Death Spiral, Seth Chandler explains that if United drops out, in many markets there will be no plans available on the federal exchange, or perhaps only one other provider:

United is a major player in the Exchange markets.  It sells policies in about 47% of the 395 rating areas serviced by the federal exchange. Moreover, the loss of United could be very harmful to any remaining competition of the exchange markets.  A quick study of data fromhealthcare.gov shows that if one looks at Silver plans in rating areas in which United sells a policy and one looks at all plan types (HMO, EPO, POS,PPO), there are 204 combinations.  In 73 of those (about 36%), United is the only insurer, meaning that if no one else steps in to the United vacuum, there will no longer be a seller of that plan type.  HMO plans in Alabama rating area 13 is an example of such a market. If United exits, it would appear that there will be no HMOs in that area.

In another 59 of those 204  (about 29%) rating area/plan type markets in which United participates, United is one of only two players.  An example of such a market is the POS market in  Arkansas, rating area 1. There UnitedHealthcare of Arkansas, Inc. and QCA HealthPlan are the only sellers. This meaning that if no one else steps in, there will be  another large chunk of markets in which there will be an Obamacare monopoly.

The ACA simply does not work without voluntary insurer participation. There is no public option and their closest cousin, the coops are mostly dead or in financial distress. It surely should work better if there is at least some competition. But insurers don’t voluntarily participate where they think they can’t make money. So, unless United, one of the biggest health insurance carriers is doing something particularly wrong or unduly gloomy, one has to worry about its warning being an oracle of things to come for other insurers.

Indeed, WSJ cited several other insurance companies that have been similarly troubled by the declining signup numbers:

Several other big publicly traded insurers also flagged problems with their exchange business in their third-quarter earnings Anthem Inc. said enrollment is less than expected, though it is making a profit Aetna Inc. said it expects to lose money on its exchange business this year, but hopes to improve the result in 2016. Humana Inc. and Cigna Corp. also flagged challenges…

There are signs that broad pattern has continued–and in some cases worsened–this year. A Goldman Sachs Group Inc. analysis of state filings for 30 not-for-profit Blue Cross and Blue Shield insurers found that their overall company wide results were “barely break-even” for the first half of 2015.

Goldman analysts projected the group would post an aggregate loss for the full year–the first since the late 1980s. The analysis said the health-law exchanges appeared to be a “key driver” for the faltering corporate results, and the medical-loss ratio for the Blue insurers’ individual business was 99% in the first half of 2015–up from 91% at that point in 2014, and 82% for the first six months of 2013.

Bob Laszewski concludes that this means “the Obamacare insurance company business model does not work.”

Every health plan I talk to tells me that they don’t expect their Obamacare business to be profitable even in 2016 after their big rate increases. That does not bode well for the rate increases we can expect to be announced in the middle of next year’s elections.

And, then there are the insolvencies of 12 of the 23 original Obamacare co-op insurance companies–the canaries in the Obamacare coal mine–with almost all of the rest of the survivors losing lots of money.

Why is this happening?

Because nowhere near enough healthy people are signing up to pay for the sick.

Insurance companies simply cannot be profitable with this model:

That the Affordable Care Act’s individual market risk pool is so far unacceptable was reinforced by a recent McKinsey report that health insurers lost an aggregate $2.5 billion in the individual health insurance market in 2014–an average of $163 per enrollee. They reported that only 36% of health plans in the individual market made money in 2014–and that was before they found out that the federal government was only going to pay off on 12.6% of the risk corridor reinsurance payments the carriers expected and many had already booked.

Because the risk corridor program is revenue neutral, the fact that the carriers in the red are only going to collect 12.6% of what they requested means that the carriers losing money did so at a rate eight times greater than the carriers making money!

So when, Bob asks, will this denial end?

The Robert Wood Johnson Foundation and Urban Institute findings have now given additional credibility to the very same conclusion many of us have been trying to make since the Obamacare launch: The Obama administration has NOT been so successful in enrolling those eligible–they’ve got more than 60% of the group remaining!

If the Obama administration signs up the 10 million they are estimating they will sign-up during the current open enrollment, based upon the historic number that are subsidy eligible, they will have less than the 9 million of the 24 million RWJF and UI estimate are in the potential exchange subsidy market–just a 38% success rate. And, that is nowhere near where they will have to be to make these risk pools sustainable for the insurance companies or politically sustainable in the country.

Or keep the likes of UnitedHealth Group in the program.

How can Obamacare be fixed?

First, the Obama administration can improve, but not completely solve, their Obamacare problems by dramatically revisiting their regulations so as to give health plans the flexibility they need to better design plans their customers want to buy.

Stay tuned.

I highly recommend that David Bernstein’s new book, “Lawless: The Obama Administration’s Unprecedented Assault on the Constitution and the Rule of Law.” David’s book offers an insightful analysis of how President Obama’s presidency has seen an unprecedented expansion of executive power, and an unparalleled disregard of Congress and the separation of powers. Despite the promises to reverse the excesses of the Bush Administration, President Obama has gone much farther. David’s book is essential reading to understand what went wrong the last 7 years.

To help explain Lawless book, I offered 10 questions to David, who was kind enough to answer.

1. What were your expectations for President Obama in 2009 when he took office largely on the promise of reversing President Bush’s positions towards executive power?

I expected there would be some slippage, because it’s natural for a president to have a broader view of presidential power once he’s in office. But I didn’t expect such a broad reversal of his campaign positions, both because I thought he was sincere about them, and because those positions, especially with regard to presidential war powers, were important to some of his core liberal constituencies.

2. What was your first hint that something that President Obama may not live up to those expectations?

I think Libya was the first thing that really struck me, because it involved such brazen disregard for the law, and such a direct contradiction of what Obama himself had said in writing was his understanding of the scope of the president’s war powers. I’m sure there were earlier hints, but in the early days of the administration I was busy with a baby and a book manuscript (Rehabilitating Lochner), so my ability to focus on how the administration was handling the separation of powers was limited.

3. How do you explain the disconnect between what candidate Obama promised, and what President Obama has done?

I think candidate Obama sold the electorate a bill of goods; Obama was never a sincere civil libertarian, and was never really interested in reining in executive power, these were just positions he took for campaign purposes, in particular to wrest the Democratic nomination from Hillary Clinton by appealing to the liberal Democratic base.

4. During the Bush Administration, the law professoriate lambasted the President’s attorneys, and charged them with rubber-stamping everything from torture to illegal wars. Many of those same professors took jobs in the Obama Administration. Have the Obama lawyers provided a constitutional check?

Sort of. Instead of asserting broad theories of constitutionally mandated executive power like John Yoo did, they have looked for barely plausible legal rationales to allow Obama to do what he wants to do. For example, instead of arguing that the War Powers Act is unconstitutional, Harold Koh argued that bombing Libya doesn’t constitute hostilities, though he took precisely the opposite position with regard to Reagan’s much, much, less intensive bombing of Libya twenty-five years earlier.

I think the Obama people think they are doing everyone a favor by not establishing broad precedents in the foreign affairs arena that Republican presidents can use. But making up dubious rules for the current president violates the rule of law. I disagree with Yoo on executive power, but at least his theory of it must be consistent across presidents, and therefore can’t be seen as simply manipulating the law to serve the incumbent administration. Indeed, to his credit John has been consistent in applying his theories to Obama administration military actions. It strikes me that the Obama administration lawyers have invented narrow and often bizarre rationales for presidential unilateralism precisely so they can avoid such consistency. It’s also worth noting that Obama has sometimes ignored his own lawyers at OLC and elsewhere when they tried to restrain his actions. Attorneys can’t provide a constitutional check if the president ignores their advice.

Finally, some Bush administration officials threatened to resign if Bush proceeded with some of the more aggressive legal theories some of the lawyers were pushing. Obama has pushed the envelope in a variety of ways, but I haven’t heard of any resignations, actual or threatened.

5. Explain the constitutional infirmities of the so-called “Czars”? How are these different from many other administration officials who do not need to undergo Senate confirmation?

The distinction between high-level advisors (who don’t require confirmation by the Senate) and principal officers (who do) is often lost in discussions of presidential czars. I limit my definition of “czar” to an individual who is not confirmed by the Senate and exercises final decision-making authority. A czar actually dictates or controls policy or the enforcement of laws and regulations. This may include controlling budgetary programs, administering or coordinating a policy area, or otherwise making or enforcing binding rules and regulations. It is these “czars,” and not mere advisors (no matter how influential), whose positions violate the Constitution, because they should be considered “principal officers” who need to be confirmed. George W. Bush had been by far the most prolific president in evading Senate confirmation and Congressional oversight hearings by appointing czars, but in his first term President Obama outdid Bush by a wide margin.

6. The President has often explained that gridlock, and an intransigent Republican Congress, has necessitated the use of executive power? Is this accurate? Should Republicans bear any blame?

We certainly have gridlock. But when the president’s supporters talk about gridlock, they mean “Republicans in Congress are not willing to go along with the president’s agenda.” But why does the president get to set the agenda? In our constitutional system, unlike parliamentary systems, the legislative branch is supposed to set the agenda. Other than using the bully pulpit, the president is limited to exercising his veto power (or not). Given the way our system is structured, if the president and Congress are at odds it’s more accurate to say that the president is responsible for gridlock. In the popular imagination, the president “runs” the government as if he’s a prime minister, so Congress gets more blame than it should. Popular conceptions of how the government works are at odds with the actual constitutional structure, and that’s a real problem. But the short answer is, there is nothing in the Constitution that suggests, implies, or even hints that the president’s power expands because Congress won’t pass the legislation he advocates..

7. How do you think President Obama’s history as a constitutional law lecturer at the University of Chicago has affected his understanding of his constitutional duties?

Obama taught Fourteenth Amendment related classes. There seems little if any evidence that he’s ever been interested in separation of powers or federalism, except to use the former as a campaign issue in 2008. I suspect he sees these considerations primarily as potential barriers to the progressive policies he advocates, with little if any actionable substantive content.

8. What do you make of the Presidents numerous comments directed at the Supreme Court, while the two big Obamacare cases were pending–NFIB v. Sebelius and King v. Burwell?

Presidents traditionally refrain from commenting on pending SCOTUS cases to avoid giving the impression they are trying to pressure or influence the Justices. That seems like a wise policy.

9. What do you think the biggest legacy will be for the Obama Presidency with respect to executive power? How will he be remembered in 50 years?

Unfortunately, I think his presidency is likely be remembered as the tipping point where executive power really got out of control. No president has asserted (and bragged about asserting!) such broad executive power across such a wide range of foreign and domestic matters, ignoring both the laws he’s supposed to execute and longstanding norms about when Congress needs to be consulted. The question is whether in fifty years we’ll look back and say “thank God there was a counter-reaction” or whether we’ll say “and that was the beginning of the end of the separation of powers.”

10. For the last question, do you think the winner of the 2016 election–either Republican or Democrat–will effect any meaningful changes from the policies of the Obama Administration?

Unfortunately, the trend has been that new presidents pocket whatever powers their predecessors gained, and then expand them further. I hope that doesn’t turn out to be the case, but I don’t have much reason for that hope. Liberal bloggers are praising Clinton precisely because they expect she won’t care about the rule of law, and the GOP frontrunner for the last several months seems to thrive on the fact that Republicans want their own narcissistic unilateralist in the White House.

These are very serious times. I thank David for his insights.

On Thursday, I will be giving my last lecture of the semester at the University of Nebraska Federalist Society Chapter on 3D-Printed Guns. If you are in the corn-husker state, please stop by and say hi!

I recently started listening to the audio book of The Wright Brothers, as narrated by the author David McCullough. I noticed that when McCullough says a year from the first decade of the 20th century, for example 1905, he pronounces it as “Nineteen five.” Colloquially, I would usually say “Nineteen-oh-five.” But then, I thought, for years in the first decade of the 21st century, I would say “two-thousand-and-five,” rather than “twenty-oh-five.”

English-at-home.com that offers this guide:

For years up until 2000, separate the four numbers into two pairs of two:
1965 = “nineteen sixty-five”
1871 = “eighteen seventy-one”
1999 = “nineteen ninety-nine”

For the decade 2001 – 2010, you say “two thousand and —-” when speaking British English:
2001 = “two thousand and one”
2009 = “two thousand and nine”

However, from 2010 onwards you have a choice.
For example, 2012 can be either “two thousand and twelve” or “twenty twelve“.