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Sunday, March 10, 2024

"Made By China" Possibly Biggest Risk To Economy, Staring Us Right In The Face

 By Peter Tchir of Academy Securities

The Threat of "Made by China 2025"

I cannot remember the first time that we discussed the transition from “Made in China” to “Made by China.” I do know that back in April 2023 we Locked in Some Themes, one of which was the Made by China theme. We also framed the discussion around the dollar, the yuan, and “reserve currency” status using the “Dark Web” as a useful way to think about it. Some reports age better than others, and that report seems to have aged particularly well.

“Made by China” has been a theme that we have been using more and more. We are also starting to see it referenced more frequently. Not usually in those exact words (which we are trying to coin for ourselves) but the concept is the same – stiffer competition from Chinese goods makers.

While in Chicago this week, we were able to discuss this in more detail on the Schwab Network in a segment they titled “Potential China Strategic Shifts.” It also came up in a Yahoo Finance interview that focused more on my bearish outlook for U.S. equities, but it did get incorporated. It may also have come up during a discussion with Rick Santelli at CNBC on Friday afternoon, but there isn’t a link available, and the interview and prep was such a blur that I cannot remember what was said on versus off-air. Well, I know a few things that were definitely not said on air, but that’s another story! In any case, I should have brought more than one tie to Chicago.

Marching in Plain Sight

General (ret.) Spider Marks, who spent much of his career in Asia as a senior intelligence officer, often discusses how China does things “in plain sight.” They tell us what they are going to do, and then they do it, and somehow we often seem surprised. I won’t harp on this theme, but it will permeate the report.

I’m seeing references to China’s “Minsky Moment” on social media. The concept that China is somehow going to lay down and die, give up decades of growth, and succumb to an aging population and a falling real estate market seems almost ludicrous. Yet, that view seems to be far closer to the consensus than Made by China, despite lots of evidence that communist leaders rarely go down without leaving it all on the field.

To ensure that I wasn’t completely off base, I spent a couple of minutes searching for China 2025. All sorts of references to Made in China 2025 popped up. Article after article, all done back in 2015! General (ret.) Walsh and I discussed this Thursday in preparation for today’s report. General Walsh played a key role in the national defense policies elevating China to a “Strategic Competitor.” He was also instrumental in our 2019 report – A D.I.M.E Framework for China, Trade & Strategic Competition.

The main gist of our conversation was that China never stopped with the China 2025 initiative. They just publicized it less because it was attracting “the wrong sort of attention” in D.C. (at least from the perspective of China). They backed off discussing it because it made people concerned that China was going to change their relationship with us to a more competitive one on the goods side of things. That concern may have led to policies to thwart their efforts, so they backed off (at least publicly). Maybe this section should have been titled “out of sight, out of mind?”

Back in 2015, China told us what they wanted to look like by 2025. Yet, here we are, in 2024 with lots of evidence pointing in the direction that they are continuing down that path with at least a modicum of success. I would argue more than a modicum, but let’s not go overboard, at least not yet.

Fighting the Last War

Another topic that comes up at Academy as we discuss geopolitical threats and the military is the risk that generals are “fighting the last war.” While I have no military experience, I know regulators are often viewed as fighting the last crisis, and I’d have to agree that there seems to be some truth to that assessment.

We’ve often discussed that many of the views expressed by politicians seem to be based on China circa 2005, i.e., cheap manufacturing with limited IP. The reality is that just isn’t at all correct. Chinese manufacturing has grown increasingly sophisticated (as the U.S. and Europe largely ceded manufacturing to China). For some reason solar panels jump to the top of my list here, but the point is that China has developed very good (and not just cheap) manufacturing capabilities.

On the IP side, maybe it was like a seesaw (or a teeter totter) with an adult on one side and a toddler on the other (i.e. very unbalanced). But as the adult has aged and the toddler has grown up, it is much more balanced. There are some areas where China has developed much of its own IP. Think back to the China 2025 initiative and their focus on machine learning, cryptography, etc. Again – marching in plain sight.

So, I am worried that we shape policy based on an outdated view of China’s capabilities.

Which brings me to TikTok. We did include it in We Didn’t Start the Fire and it has come up periodically as an issue due to all the information that is being collected.

In theory, I should be paying more attention to the Protecting Americans From Foreign Adversary Controlled Applications Act. But I struggle to get too excited about it. First, talk about “shutting the gate after the horse has left the barn!” Yes, I’m full of colloquialisms and folksy sayings today.

TikTok in some ways seems all pervasive! It seems to be everywhere. I believe that even while D.C. has some restrictions already for certain government employees regarding their ability to have TikTok on their devices, many politicians are turning to TikTok as a part of their campaign efforts. Color me “cynical,” but I’m not optimistic that much will be done or accomplished in this day and age and who knows how much damage has already been done. Maybe not quite fighting the last war (as this war is still raging), but we certainly got off to a late start.

Made By China 2025

Please keep in the back of your mind the concepts that:

  • China “marches in plain sight” and has outlined what they want to accomplish.
  • We have to think about where China is going (not where they’ve been) if we are going to get this right (possibly the closest I’ve come to quoting Wayne Gretzky).

We tried to detail our thoughts in the piece titled Chess, Checkers, or Go – What is China’s Next Move? The simple version of this report is:

  • Yes, the Chinese economy faces many problems. We completely agree with consensus here.
  • No, China won’t just curl up and fizzle out, they will do something. As we saw during COVID, to maintain the power of the Chinese Communist Party, they will do things to appease the middle class (a few protests caused a complete reversal in their COVID policy). So, assuming Xi wants to stay in power (no indication that he/the party wants to relinquish power), he needs a strategy.
    • Increased domestic consumption isn’t a great option. The Chinese consumer has not demonstrated a willingness to spend like the U.S. consumer, and with real estate down and the stock market weak, there isn’t the money to spend, even if they had a propensity to spend it.
    • Increasing manufacturing for U.S. and European companies isn’t an option. More companies are extricating themselves from being reliant on China as their main production hub. Costs have been hidden, but COVID (amongst other things) exposed a lot of “hidden” costs, or costs not thought of – like complete shutdowns and the inability to access your facilities. Add in some IP protection risks and setting up new business in China isn’t top of mind. Finally, after years (and maybe even decades) of hoping to be able to compete openly and fairly in China with domestic companies, many doubt that we will. So, there is a long list of reasons why China is unlikely to think that they can increase their manufacturing of foreign products.
  • So, if two obvious things don’t work, what do you do? Remember the concept of “mirroring” that we discussed in The Game of Chicken in Today’s World? Don’t think about China and brands as we see them, think about China and brands as they see them.

China has an economic problem, but there is one path that might work and it is a path that they have told us they intend to pursue (and have been pursuing).

Let’s just pause for a moment. Re-read the last sentence/rant. Maybe it sounds too simple? Maybe we don’t think of it that way, but that might be the biggest mistake that we are making.

I hear a lot of talk about “black swan” events or “grey swan” risks. Both in our geopolitical and macro conversations. I’m increasingly concerned that we are so busy looking for swans of different colors, we are ignoring the hammer hitting us in the head over and over! Is our thought process to think, “Yeah, that hammering kind of hurts, but I should ignore it and look for where the ‘real’ problems lurk?”

How it Works – Domestic Consumption

If you noticed, earlier in the piece I said that “increased” domestic consumption isn’t likely to work!

So, like any practical businessperson, if you cannot increase the size of the pie, your best bet is to increase your share of the pie. When corporate strategists sit down at the table trying to figure out how to grow market share, they can only wish they had some of the tools that China has available.

  • Taxes, tariffs, content rules, etc. Companies have to lobby for these, but the Chinese government creates them. They have created them and will likely continue to use them to make “foreign” products (even those manufactured in China) less competitive.
  • Outright bans. Who can use what app or what hardware? Again, corporations can put their best foot forward, but China can do (to a large degree) as they please. If you were trying to suppress domestic demand, say, for a certain type of phone, maybe you would ban government employees from using it? And over time, extend that ban to more and more agencies and levels of government.

China can make it so that foreign brands are less competitive domestically. I think there is clear evidence that is happening.

By suppressing demand for “foreign” brands to benefit Chinese brands, they can improve the “domestic” economy even if the “pie” is stagnant (or shrinking) by taking greater market share.

Let’s not forget that at the moment, certainly for the chip industry, the U.S. is doing a lot to enhance the ability to develop foundries domestically and manufacture more/higher quality chips. All countries can do things to help their domestic brands, especially domestically, but I just suspect that China will be more aggressive about it.

I’m also worried that as we restrict things for China, it will just make them better at it. I think that we’ve asked before how China is making so many phones with 7 nanometer chips, when there have been restrictions in place on chips thinner than 10 nanometers. Underestimating China can be a real risk.

Yes, some of the Geopolitical Intelligence Group members discuss the risk of “making your enemies 10 feet tall” and overestimating their capabilities, which can also lead to flawed policy. In hindsight, any assessment of Russia’s military was far too generous, which affected our behavior before and in the immediate aftermath of the invasion (the first offers were to evacuate Zelensky as Kiev was theoretically going to be overrun in a matter of days).

China has flaws and may not be able to execute on their strategies, but I suspect that we are stuck underestimating their capabilities rather than overestimating them. I must admit that I’m curious to check out what a BYD EV is like in person – at the very least to better understand the “competition”.

How it Works – Foreign Consumption

The domestic advantages seem easy enough to implement. In some industries this has been going on for years, but I would expect more rather than less of it.

The trickier issue will be how to grow foreign consumption of your brands. As with any strategy session, you look to your strengths and try to use those to leverage your position. Again, just like with their domestic efforts, the government has options not available to corporate strategists.

  • Compete on price. That seems like the obvious starting point. Offer a price to quality that can compete with foreign brands.
    • If you are competing on price, go to where price might be most important. I would target countries with large populations of people with some, but not a lot of money to spend. Where price will be paramount. Countries whose citizens are looking for the best quality or the cachet of owning a certain brand would not be my first choice. This leads me towards some emerging market countries – especially those that are resource rich.
  • Offer trade incentives. Corporations can hope to get governments to support them in trade (export-import banks still exist across the globe, etc.), but China is the government. Interestingly, I think China has trade deficits with some countries who might have the sort of consumer China is looking for. Countries that China is buying a lot of commodities from would seem like ideal potential customers, where China can offset some of their trade deficit by getting them to buy their brands.
  • Shipping. First, China has spent a lot of time, effort, and money to have access to (and in some cases control of) ports. Can they use that to their advantage? Why the heck not? The network of ports that China has built up could be used to their advantage. Could they prioritize their shipments into ports that they control? Again, maybe “we” wouldn’t even if we could (though we probably would when push comes to shove), but China operates under a different set of rules (or guidelines) than we do. So, it would not surprise me to see them leverage this network to improve distribution of their brands, potentially at the expense of others (which reminds me, I need to reach out to my shipping contacts to see if any of this is already occurring). Finally, and this might be weird, but if I’m a pirate or someone targeting shipping, attacking a Chinese ship would be low on my list, purely out of fear of retribution. Immediate, direct, and harsh retribution. Not proportionate to what was done, and they will send a message to never, ever, do it again.
  • Never underestimate the willingness of the American consumer to buy anything. While the American consumer wouldn’t be my first choice, why not try? I had never heard of Temu before the Super Bowl. I just hadn’t. To be honest, I’m a little nervous even going on the site (I assume that they, like TikTok, will use my information). I did a search for golf range finders (if China needs Temu to figure out that I’m a golf addict, their AI is way worse than I thought). I couldn’t find one listed for more than $100, which seems pretty cheap. On Golf Galaxy, there was one for $150, a couple for $200, and several that were much more costly. Though I recognized most of the brands at Golf Galaxy, I cannot say that I recognized any of the brands on Temu (and I was nervous to click on more than one – maybe I’m just paranoid). But if Temu isn’t an attempt to sell Chinese brands into America based on price, then what is it? Super Bowl commercials have ranged from iconic (Apple’s 1984 is still one of my favorites), to a staple (Budweiser horses), to things that have fizzled (too many to count), and to things that surprised some with their staying power (E-Trade babies are back!). When I mention Temu, I mostly get sideways glances, if not outright smirks, but why? Why dismiss something so easily that fits with what I would do if I was a strategist for China Inc.?

Selling brands to different countries will be more difficult than increasing their domestic market share. But, as the CEO of Mercedes reminded viewers on Bloomberg TV a few months ago, at one time, Mercedes too was a “domestic” brand.

The development of brands, first domestically and then in foreign markets, is a standard practice – why wouldn’t it be for China?

Implications for Investors and Companies

There are a few things that seem obvious and may already be playing out on a limited scale. Some might be further down the road if I’m correct, but that just means there is time to develop effective strategies to combat the risk.

  • Relying on sales into China. I would expect it to get more difficult to sell into China than easier. Forecasts for sales into China need to be checked and double checked. One also needs to play “devil’s advocate” for what potentially could be done to either thwart your sales, or to enhance the sales of domestic brands.
  • Selling into the most price-sensitive economies. Where price is extremely high on the purchase decision-making tree, what risk is there of competition from a Chinese brand? The initial reaction might be to be “dismissive.” Their brand can’t do what ours does. Probably true. Our brand has IP, and we would sue them (possibly true, but is it winnable especially if the Chinese government is supporting sales of the brand into that country?). Maybe after a thorough analysis, there is no risk, but I would think long and hard about that. Assume an uneven playing field. Assume you are up against a leadership that does not want to lose control and has tools at their disposal beyond what leaders in the Western world have. If the assessment is still good even after thinking of “worst case” possibilities as the “base case,” then all is fine. But I think it is too easy to be dismissive, and that is a risk for investors and corporations.
  • Chinese suppliers and shipping. This is probably “next level” stuff, but if there was an effort to thwart brands and products, shipping and suppliers might be used in that battle. It is probably next level but cannot be dismissed out of hand. One obvious risk already is in the chip industry. There is agreement here that the “highest level technology” needs to be protected but defining that in a way that works could prove tricky over time.
  • Bad inflation. As supply chains shift and shipping gets more complicated, we could see inflation rise. The cost of goods for domestic companies could increase, passing inflation to buyers in many regions.
  • Bad deflation. If China competes on price, then its competitors will likely have to compete on price, which will be a direct hit to profit margins.

Bottom Line

I can think of no greater or more obvious risk to our economy and stock market valuations than the rise of Chinese brands globally. Not tomorrow’s risk or even next year’s risk, but it is the sort of risk where in 5 years, we will look back and wonder how we got it so wrong – especially since it has been in plain sight!

The good news is that there is time to plan, prepare, and win.

  • Without a doubt, many companies are already ahead in this battle and doing what it takes to be successful under a variety of competitive circumstances.
  • China, assuming they are pursuing this strategy, has to get a lot of things right. They need a lot of things to work in their favor. They may not get what they need or may not execute, but I wouldn’t rely on that as being my strategy.

We can get back to living in markets that rise and fall 1% in a day (sometimes more), but I really wanted to make sure this message on “Made by China” is heard loud and clear as I think it is vital to understand and prepare for.

And yes, currently I’m long FXI (I think that Chinese stocks are un-investible, but are tradeable) and short QQQ (lots of things pointing me to the risk/reward being skewed to more downside risk than upside risk in the near-term). For the “normal” macro stuff see:

Good luck today, tomorrow, and beyond. I’m actually optimistic on the “beyond” front, but I’d be more comfortable if I felt more people, at all levels, were taking the Made by China theory more seriously.

https://www.zerohedge.com/markets/made-china-possibly-biggest-risk-economy-and-it-staring-us-right-face

Cheney Loses It After Claims She "Suppressed Exonerating Evidence" With J6 Committee

 Former Rep. Liz Cheney (of the revolving door Haliburton --> White House --> war profiteer dynasty) came unglued this weekend following a report by The Federalist's Mollie Hemingway, which accuses Cheney and the January 6 committee of suppressing exonerating evidence of then-President Trump's push for 10,000 national guard troops to protect the nation's capital on the day of the Capitol riot.

To summarize The Federalist;

  • Cheney and the J6 committee "falsely claimed they had “no evidence” to support Trump officials’ claims the White House had communicated its desire for 10,000 National Guard troops."
  • In truth, an early transcribed interview conducted by the committee "included precisely that evidence from a key source."
  • That key source, Deputy Chief of Staff Anthony Ornato, said he overheard White House Chief of Staff Mark Meadows push DC Mayor Muriel Bowser to request as many National Guard troops as needed to protect DC on Jan. 6.
  • Ornato also testified that Trump suggested 10,000 troops to keep the peace at public rallies and protests scheduled for Jan. 6, 2021 - and that the White House was frustrated with Acting Secretary of Defense Christopher Miller's slow deployment of assistance on the day of the riot.
  • Ornato's testimony was corroborated by Kash Patel, the former chief of staff to the acting secretary of defense.
  • According to The Federalistthis information was suppressed.

Hemingway writes that the committee not only mischaracterized the interview, they also suppressed the transcript from public review

On top of that, committee allies began publishing critical stories and even conspiracy theories about Ornato ahead of follow-up interviews with him. Ornato was a career Secret Service official who had been detailed to the security position in the White House.

Cheney frequently points skeptics of her investigation to the Government Publishing Office website that posted, she said, “transcripts, documents, exhibits & our meticulously sourced 800+ page final report.” That website provides “supporting documents” to the claims made by Cheney and fellow anti-Trump enthusiasts.

However, transcripts of fewer than half of the 1,000 interviews the committee claims it conducted are posted on that site. It is unclear how many of the hidden transcripts include exonerating information suppressed by the committee. -The Federalist

Click here to read the entire report, which includes Ornato's full answers to the committee.

"The former J6 Select Committee apparently withheld Mr. Ornato’s critical witness testimony from the American people because it contradicted their pre-determined narrative. Mr. Ornato’s testimony proves what Mr. Meadows has said all along: President Trump did in fact offer 10,000 National Guard troops to secure the U.S. Capitol, which was turned down," said Rep. Barry Loudermilk (R-GA). Loudermilk's subcommittee is reviewing the work of the Jan. 6 committee following accusations of unethical behavior at the expense of accuracy, along with collusion with other Democrat efforts at political persecution.

Liz Loses it

On Saturday, conservative commentator Mark Levin called Cheney out, posting on X: "Sleazy Liz Cheney needs to receive some of the Stalinist medicine she introduced into the body politick against scores of patriotic Americans -- that is, she needs to be compelled to testify under oath about, among other things, what knowledge she may have about: possible witness tampering, censorship of exculpatory information and testimony, the destruction of committee evidence and data, etc."

Cheney responded, calling Mollie Hemingway a "bozo" - and directing people to various sections of the Jan. 6 report in which Secretary of Defense Miller (the guy who was 'slow to deploy' assistance) said Trump never ordered 10,000 troops, and that Kash Patel is "not a credible witness" (as determined by a judge with a conflict noted below).

Note that Cheney never addresses the suppression of information.

Cheney was dismantled in the replies:


https://www.zerohedge.com/political/sleazy-liz-cheney-loses-it-after-bombshell-report-claims-she-suppressed-exonerating

Atrial Fibrillation: Guideline Update for Primary Care

 I'm Dr Neil Skolnik. Today we are going to talk about the 2023 American College of Cardiology/American Heart Association guidelines for atrial fibrillation (AF). AF is common and is often first identified in the primary care office. AF substantially increases the risk for stroke, dementia, myocardial infarction, and heart failure.

When AF is detected, three areas of care need to be addressed: symptoms, stroke risk, and modifiable lifestyle factors. Patients with AF should have an echocardiogram done as well as laboratory tests (CBC, CMP, and TSH). Stress testing is not routinely needed unless the patient has other indications for a stress test.

When someone presents with AF to the office or emergency department (ED), the first decision typically concerns rate control, aiming for a heart rate of 100-110 beats/min or less. For acute rate control in the setting of rapid ventricular response — as well as long-term rate control — either a beta-blocker or a nondihydropyridine calcium channel blocker (verapamil or diltiazem) is recommended. Whether the patient needs to be sent to the ED for acute treatment is a matter of clinical judgment.

If the patient has heart failure with reduced ejection fraction, then calcium channels blockers should not be used. A third-line agent in this situation is digoxin, and if used, long-term serum levels should be checked periodically, with a goal of < 1.2 ng/mL (note that this is different from the previous goal of < 2.0 ng/mL). Intravenous magnesium sulfate is an option if further rate control is needed in the ED. For patients with decompensated heart failure in whom beta-blockers or calcium channel blockers are not effective, consider amiodarone.

The next decision concerns anticoagulation for stroke prevention. Calculate the patient's risk for stroke using a validated stroke risk score such as the CHA2DS2-VASc score, taking into account the risk for bleeding. Decisions about stroke prevention must be balanced against the risk for ischemic stroke or bleeding. If the patient's annual risk for stroke is ≥ 2% (CHA2DS2-VASc score of ≥ 2% in men and ≥ 3% in women), the guidelines recommend anticoagulation to reduce the risk for stroke in both paroxysmal and persistent AF. For a 1%-2% annual stroke risk (CHA2DS2-VASc score of 1% in men and 2% in women), anticoagulation is reasonable. Use clinical judgment for patients at intermediate risk for stroke as well as those with an increased bleeding risk.

Direct oral anticoagulants (DOACs) are recommended over warfarin unless the patient has moderate or severe mitral stenosis or a mechanical heart valve. In patients who cannot take DOACs, surgical and percutaneous procedures to occlude the left atrial appendage are now options to reduce the risk for ischemic stroke without the use of anticoagulation. For patients with AF and chronic coronary disease (less than 1 year after revascularization) without a history of stent thrombosis, antiplatelet therapy should not be used in conjunction with anticoagulation due to an increased risk for bleeding without any reduction in important outcomes.

Among patients with device-detected AF (no symptoms; detected by a watch or other device), stroke risk is lower than that of patients with symptomatic AF. The recommendations for device-detected AF vary by duration of AF as well as by CHA2DS2-VASc score. See the guidelines if you are interested in more information on this fascinating topic.

Finally, what about restoration of sinus rhythm vs rate control alone? The guidelines call this a nuanced decision. The benefits of rhythm control include improved ventricular function, decrease in symptoms, and improved quality of life. One large study (the EAST-AFNET 4) showed that an early rhythm control strategy was associated with a 25% reduction in the combined endpoint of mortality rate, stroke, and hospitalizations due to HF or acute coronary syndrome.

Characteristics that favor a rhythm-control strategy include younger age, shorter history of AF, higher symptom burden, smaller left atrium, greater left ventricular dysfunction, and more atrioventricular regurgitation. The specific treatment for rhythm control, which can be pharmacologic or by catheter ablation, is discussed in detail in the guideline. This is a decision that will be made by our cardiology colleagues. Recent trials have shown a significant reduction in recurrent AF with catheter ablation compared with antiarrhythmic drugs.

Finally, believe it or not, lifestyle factors influence the severity of AF symptoms, recurrence of AF, and progression from paroxysmal to persistent AF. The most impactful of the lifestyle factors may be obesity, with a 10% reduction in weight leading to improvement. Also recommended is at least 210 minutes per week of exercise, smoking cessation, screening for obstructive sleep apnea, and minimizing or eliminating alcohol use. Caffeine does not generally have an effect, although it's reasonable to reduce caffeine intake if a patient reports caffeine as a trigger.

https://www.medscape.com/viewarticle/1000331

OSHA Is Unconstitutional

 The Framers of the Constitution understood that the separation of powers is “essential to the preservation of liberty.” In line with this understanding, the Constitution was designed to ensure that no single branch of government could accumulate too much undivided power. The Constitution thus vests “all legislative Powers” in Congress, vests the executive power in the president, and vests the judicial power in the federal courts. Critical to this design is the “nondelegation doctrine,” which prohibits Congress from blurring these lines by delegating its legislative power to the executive branch.

The Occupational Safety and Health Act (the OSHA Act) violates the nondelegation doctrine by granting the executive branch virtually unlimited policymaking authority. The OSHA Act grants the secretary of labor the authority to impose any “occupational safety and health standard” so long as it is “reasonably necessary or appropriate to provide safe or healthful employment and places of employment.” The secretary has delegated this power to the Occupational Safety and Health Administration (OSHA).

Through this statutory language, the OSHA Act grants the executive branch regulatory authority over essentially every American business. The only restriction on this regulatory discretion is that OSHA must deem its regulation to be “reasonable,” but in practice that is no restriction at all. No other statute grants an agency such a broad authority with such complete discretion.

For these reasons, an Ohio business has challenged the OSHA Act as an unconstitutional violation of the nondelegation doctrine. The US Court of Appeals for the Sixth Circuit rejected that challenge, but the business has petitioned the US Supreme Court for review. And Cato has filed an amicus brief supporting that petition.

Our brief recounts that for most of the last century, the Supreme Court has held that a delegation of authority complies with the nondelegation doctrine so long as it provides the executive branch with an “intelligible principle” to guide its discretion. But there is serious reason to doubt whether this lenient standard adequately protects against Congress delegating its legislative power. Before the New Deal era, the traditional standard in nondelegation cases was more strict, requiring Congress to decide major questions of policy and permitting the executive only to “fill up the details.”

But even under the lenient “intelligible principle” standard, the OSHA Act violates the nondelegation doctrine. In Panama Refining Co. v. Ryan (1935), the Supreme Court provided a two‐​part test to determine whether a statute violates the nondelegation doctrine: “(1) ‘whether the Congress has required any finding by the President in the exercise of the authority,’ and (2) ‘whether the Congress has set up a standard for the President’s action.’” 

The OSHA Act meets neither of these requirements. The Act’s “reasonably necessary or appropriate” language is even more vague than other provisions that have been upheld by the Supreme Court in previous nondelegation challenges. And unlike those upheld statutes, the OSHA Act provides no criteria binding OSHA’s discretion beyond that language.

Admittedly, the question whether a statute has crossed the line and unconstitutionally delegated legislative power can at times be difficult to discern. But as the Supreme Court itself has made clear, “the inherent difficulty of line‐​drawing is no excuse for not enforcing the Constitution.” The Court should take this case and get back in the business of meaningfully enforcing the nondelegation doctrine.

Thomas Berry is a research fellow in the Cato Institute’s Robert A. Levy Center for Constitutional Studies and editor‐​in‐​chief of the Cato Supreme Court Review. Before joining Cato, he was an attorney at Pacific Legal Foundation and clerked for Judge E. Grady Jolly of the U.S. Court of Appeals for the Fifth Circuit.

https://www.cato.org/blog/osha-unconstitutional

The plight of health system-owned Medicare Advantage plans

 Medicare Advantage continues to see unprecedented enrollment growth, but not for everyone.

As of February, a record 33 million people are enrolled in a Medicare Advantage plan. For-profit payers account for nearly three-quarters of that enrollment, while health system-owned MA plans continue to lose market share, according to a March 5 analysis from Chartis. 

Though health system-owned MA enrollment has grown overall recently, it has underperformed with respect to the largest payers and currently makes up 13% of the MA market, compared to 17% in 2019.

"The continued erosion of provider-sponsored health plan membership in Medicare Advantage means that these plans are missing out on the nation's largest growth segment and are likely not capturing the full value of plan-provider integration for growth," Chartis' analysts wrote.

The eroding MA market share for providers comes as several health systems recently have exited the insurance space. In February, Springfield, Mass.-based Baystate Health reached a deal to sell Health New England to Point32Health, the parent company of Tufts Health Plan and Harvard Pilgrim Health Care. In January, Toledo, Ohio-based ProMedica said it planned to sell its insurance subsidiary, Paramount Health, to Medical Mutual of Ohio. 

In November, Ascension Wisconsin finalized a deal to sell all of its stake in Network Health to Froedtert Health. The Milwaukee-based system is now the sole owner of Network Health, which offers health plans in 23 Wisconsin counties. 

At least one system-owned plan has shut down in the past year. In October, Fredericksburg, Va.-based Mary Washington Healthcare said it would not offer its Medicare Advantage plan in 2024. 

Though some systems are moving away from Medicare Advantage, others are moving full steam ahead.

Livonia, Mich.-based Trinity Health, which recently added Michigan to its list of states where it operates the system's MediGold MA program, also operates it in Connecticut, Ohio, Idaho, New York and Iowa.

"Everyone is competing in this space pretty aggressively as we are in each of our regions as well," Trinity COO Ben Carter told investors in October. "We are continuing to evolve MediGold by investing in and growing it."

https://www.beckershospitalreview.com/finance/the-plight-of-health-system-owned-medicare-advantage-plans.html

Are healthcare DEI efforts losing steam?

 In recent years, "DEI" has become a political buzzword — and health systems' efforts aren't immune to the consequences, leaders in the field say. 

Diversity, equity and inclusion efforts were rolled out en masse in 2020. Healthcare was among the many industries to adopt such programs, aiming to broaden the workforce, improve employee satisfaction and address disparities in patient populations. C-suite leaders were appointed to lead sweeping culture changes and revamp hiring practices; offices were installed to research and educate. 

But these programs have come under mounting scrutiny, especially after the Supreme Court overturned affirmative action in June. Chief DEI officers have been leaving their roles as some organizations funnel their responsibilities under human resources departments and replace "DEI" with less-charged terms. 

The DEI sector is unique in health systems, as it often guides data-backed, financially justifiable health equity efforts. However, some leaders in the space still struggle to continue as online backlash spreads like wildfire. The chief diversity officer of Baltimore-based Johns Hopkins Medicine resigned March 6 after a newsletter defining the term "privilege" went viral on social media, leading a politician to call for her firing. Progress, in some cases, has been one step forward and two steps back. 

"After George Floyd's death, we saw this acceleration where everyone was embracing equity. I thought that was really our tipping point, where we could really move past and gain some substantial impact in this country," Yolanda Lawson, MD, president of the National Medical Association, told U.S. News & World Report. "But unfortunately, now we have seen this backlash."

This week, U.S. News interviewed three health equity experts to gauge momentum in the field. Their general consensus: The pushback is apparent, but not new, and not enough to halt DEI efforts. 

Joneigh Khaldun, MD — former chief medical officer for the state of Michigan and current chief health equity officer at CVS Health — told the publication that interest in health equity and disparity has naturally ebbed and flowed throughout history, even before the term "DEI" caught on. The challenges aren't new, per se — they've just taken on a new name. 

"While I do think the 'flashiness' of health equity and diversity, equity and inclusion has perhaps gone down a bit in the past couple of years since the pandemic has kind of waned, I still know that there are organizations that are really committed to it," Dr. Khaldun said. "And I'm also proud of the work we're doing at CVS." 

The organization, like other healthcare companies, is looking to understand DEI as "just a way of doing their work," Dr. Khaldun said. It's looking to incorporate those efforts into a wide range of initiatives, from data analysis to hiring practices to health advancement in different communities. 

Hugh Mighty, MD — senior vice president for health affairs at Howard University in Washington D.C., one of the few historically Black universities in the U.S. with a medical school — echoed the sentiment that DEI isn't new. 

"People have been doing DEI forever, but we've been doing it quietly," he said. "But then we gave it a name and we elevated its presence, and then it became a threat."

Dr. Mighty continued: "So yes, there has been pushback on DEI and there continues to be pushback. Companies have pulled back and there has been movement — certainly within the last two years — to roll back the concept of DEI. But that doesn't happen if the largest companies in this country sit down at a table, form a consortium and say they are now all about DEI. Who's going to be able to stop that?"

https://www.beckershospitalreview.com/workforce/are-healthcare-dei-efforts-losing-steam.html