It seems that we are hearing the phrases “the Law of the Land” and “the Rule of Law” with ever-increasing frequency—in certain contexts, especially the Affordable Care Act (ACA).
We do not hear them so often with respect to Constitutional protections of property rights, the right to self-defense, or the free expression of religion, when these conflict with ACA or Administration policy. Nor are they invoked so often when speaking of immigration law or laws requiring public access to documents held by government agencies or public officials.
The de facto Law of the Land is no longer the plain wording of the U.S. Constitution, or even of statutes. It is certainly not the will of the people as expressed in state laws. It appears to be the opinion of five U.S. Supreme Court Justices, or executive orders or agency actions not overruled by five Justices. Or, as Derek Hunter writes, we now have “a nation of one,” Justice Anthony Kennedy or Chief Justice John Roberts. Or the President of the United States.
Editing the Dictionary
One may credit John Maynard Keynes for the widespread acceptance of a concept he embodied as a fundamental premise of Keynesian economics: the State has the ability to “re-edit the dictionary” to conform the meaning of words—such as charity and justice—to whatever is most convenient to those in power. George Orwell described how State manipulation of language is one of its most powerful weapons (http://tinyurl.com/q8jryuz).
After redefining “mandate” to mean tax in National Federation of Independent Business (NFIB), Chief Justice Roberts went even farther in King v. Burwell, defining an ACA Exchange “established by a state” to be the equivalent of one “not established by a state.” He even went beyond the request of the Solicitor General to defer to the IRS, and instead rewrote the law to mean what he thought it should mean, thus foreclosing even the possibility that a new President could direct the IRS to change its rule to be in accord with the plain meaning of the statute (WSJ 6/26/15).
The Court’s syllabus states that Massachusetts had found a way to make guaranteed issue and community rating work: mandates and subsidies. It concludes that “Congress passed [ACA] to improve health insurance markets, not destroy them,” and this had to be respected. Never mind that Congress has no Constitutional authority over medicine or medical financing, or that the “reforms” redefine insurance to mean prepayment plans, or that ACA is actually causing the dreaded “death spiral.”
“[ACA] is now more than ever, the law of the land,” said Dr. Wayne Riley, president of the American College of Physicians (ACP), applauding the opinion. “ACA Armageddon averted,” writes Mark A. Hall, J.D.: Chief Justice Roberts had twice saved ACA from a “near death experience.” Even Scalia’s dissent, Hall writes, recognizes that ACA may one day “attain the enduring status of the Social Security Act” (NEJM 7/1/15).
Of the 51 changes made in the law, 17 were made by Congress, two by the U.S. Supreme Court, and 32 by the Obama Administration, observed Grace-Marie Turner. But if any administration can make unilateral changes in the law, writes Robert Book, “it becomes impossible for members of Congress to know what they are voting for.”
The Implied “Dignity Clause”
While accepting the premise that federal health insurance exchange’s subsidies were implied in ACA, Chief Justice Roberts rejected the majority’s view of a right to same-sex marriage being implied by the Fourteenth Amendment, notes Stanley Feld, M.D. — a striking contradiction.
In his dissent in Obergefell v. Hodges, Roberts writes that the Court has no right to re-define “marriage,” to overturn the laws of more than half the states, or to order the “transformation of a social institution that has formed the basis of human society for millennia.” The Constitution has no “Nobility and Dignity” Clause, he states, and warns of the dangers of judges deciding which unenumerated rights rank as “fundamental.”
In writing the majority opinion, Justice Anthony Kennedy uses the word “dignity” in connection to marriage nine times. He emphasizes the “urgency” of the petitioners’ cause—e.g. James Obergefell’s complaint that Ohio’s refusal to recognize him as the “surviving spouse” on the death certificate of John Arthur, whom he had wed in Maryland, would be “hurtful for the rest of time.”
Remarkably, the five Justices in the majority reversed the stand they had taken just two years earlier in U.S. v. Windsor, when they had overturned the federal Defense of Marriage Act on the grounds that the definition of marriage was a state matter.
The effect of Obergefell is even more profound than that of ACA. Justice Clarence Thomas writes that it “inverts the relationship between the individual and the state.” It “rejects the idea—captured in our Declaration of Independence—that human dignity is innate and suggests that it comes from the Government.” It also changes the definition of liberty from “freedom from government action” to “entitlement to government benefits.”
“The principle of equality is the bedrock of the rule of law,” writes Angelo Codevilla. “Creating ‘protected classes’ of citizens shattered that bedrock.” Now that “equal” can mean “unequal,” and what is written counts as less than what the powerful want, what does “law” mean?
ACA Results at 5 Years
- Governance. ACA has changed the relationship between individuals and their government, acknowledge Blumenthal et al., and also changed the balance of power, diminishing state prerogatives. But perhaps time and better health will moderate philosophical objections and create the broad public support that once controversial Medicare now enjoys, they say (NEJM 6/18/15).
- Satisfaction. Polls show that 74% of ACA’s 8 million enrollees are “satisfied”; 87% of enrollees get taxpayer subsidies, averaging $3,312 per year per recipient. Polls fail to register the 12 million who are eligible to enroll but have declined to do so, writes Holman Jenkins, Jr. (WSJ 6/25/15).
- Definition of “Working.” By the standard applied to ACA, no government program can fail. If it exists and delivers benefits, it is “working.” ACA cheerleaders provide no cost-benefit analysis. “Without subsidies, ObamaCare is nothing” (ibid.). And the cost of the individual mandate is three times the benefit, according to John Graham (Forbes 6/12/15).
- Popularity. Only 2% of eligible persons with income greater than 400% of the federal poverty level have enrolled cf. 76% of those at 100–150% of FPL. After two open enrollment periods, only 40% of all eligible persons signed up, far below the proportion of the market needed for a sustainable risk pool, writes Robert Laszewski (Forbes 6/29/15).
- Priorities. If their financial status improved, 50% of the uninsured would pay off debts, 42% would put money in savings, 21% would make home or car repairs; only 20% would buy health insurance. They prefer getting care through cash, barter, or charity (WSJ 6/15/15) .
- More Punishments. About 150 small-business owners, organized by NFIB, descended on Washington, D.C., to protest an IRS ruling that would impose a fine of $36,500 per employee per year for helping workers through a Health Reimbursement Arrangement (HRA). These violate ACA rules that forbid limits on coverage of “essential benefits” or require free preventive services (The Hill 7/23/15).
ACP Applauds Obergefell
“It’s about reducing healthcare disparities,” writes Bob Doherty, senior vice president of the American College of Physicians. While some members have objected to ACP’s promotion of the “LGBT agenda,” he says “we are guilty as charged, and proud of it,” if it means that lesbian, gay, bisexual, and transgender persons have the same civil marriage rights as everyone else, and the same healthcare services and insurance benefits. More than 1,000 federal benefits are conferred by marriage, note Campion et al. (NEJM 5/7/15). Gilbert Gonzales calls same-sex marriage a “prescription for better health,” as discriminatory policies engender “feelings of rejection, shame, and low self-esteem” in LGBT persons, which can affect their health-related behavior as well as their mental health (NEJM 4/10/14).
♦ ♦ ♦
“[R]eligion in America takes no direct part in the government of society, but it must nevertheless be regarded as the foremost of the political institutions of that country; for if it does not impart a taste for freedom, it facilitates the use of free institutions.”
Alexis de Tocqueville, Democracy in America, 1831
Flashback: Justice v. Charity
“[I]f the question be asked: How must one’s possessions be used? — the Church replies without hesitation in the words of the same holy Doctor [Thomas Aquinas]: ‘Man should not consider his material possessions as his own, but as common to all, so as to share them without hesitation when others are in need. Whence the Apostle with, “Command the rich of this world . . . to offer with no stint, to apportion largely.”’ True, no one is commanded to distribute to others that which is required for his own needs and those of his household; nor even to give away what is reasonably required to keep up becomingly his condition in life, ‘for no one ought to live other than becomingly.’ But, when what necessity demands has been supplied, and one’s standing fairly taken thought for, it becomes a duty to give to the indigent out of what remains over. ‘Of that which remaineth, give alms.’ It is a duty, not of justice (save in extreme cases), but of Christian charity—a duty not enforced by human law.”
Leo XIII, Rerum Novarum, § 22, May 15, 1891
Love Gov: an Education in Debt
The Independent Institute has produced a satirical 5-episode video series on liberty—Love Gov: from First Date to Mandate. This also links to the free MyGovCost app, which should open the eyes of Millennials to the government’s claims on their future. See: https://www.youtube.com/user/independentinstitute.
AMA, CMS Together
Dropping its request for a two-year transition period to protect physicians from penalties for ICD-10 coding errors, AMA and CMS made a joint announcement of an Oct 1 hard deadline. For one year, CMS will waive penalties as long as a code is from the appropriate family. “With AMA and CMS working together,” ICD-10 is a certainty. Forget about excuses to delay training, advises HealthLeaders Media. Or to delay opting out, suggests AAPS. See http://tinyurl.com/o8b7bzf for updated information.
The Business of America
New England-born presidents have variously declared that the business of America is business, leading a New World Order, or “global democracy.” To James Fenimore Cooper, it was intended to be liberty. Americans, despite “democracy,” were more under the rule of extralegal authority than almost any others, he said. The question was whether principles, or men, were to rule (Chronicles, March 2015).
AAPS Calendar
Oct 1-3, 2015. 72nd annual meeting, St. Louis, MO.
Sep 22-24, 2016. 73rd annual meeting, Oklahoma City, OK
ACTION OF THE MONTH
Register for 72nd annual meeting today—cost increases Sept 1.
Please help students attend: nominate one for a scholarship; contribute to the AAPS Educational Foundation.
Prophecy by “Brutus”
In March 1788, one of the Anti-Federalists opposed to the ratification of the U.S. Constitution, who used the pen-name Brutus, wrote:
The supreme court under this constitution would be exalted above all other power in the government, and subject to no controul….There is no power above them, to controul any of their decisions. There is no authority that can remove them, and they cannot be controuled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself [sic].
The New “Liberty” and Substantive Due Process
Justice Kennedy writes in Obergefell: “The fundamental liberties protected by the Fourteenth Amendment’s Due Process Clause extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs.” He notes that “[w]hile the Constitution contemplates that democracy is the appropriate process for change, individuals who are harmed need not await legislative action before asserting a fundamental right.”
The drafters of the 14th Amendment may have been thinking only of extending full citizenship rights to black people, but the right to same-sex marriage, a “new dimension of freedom,” has become manifest to a new generation 135 years later.
In his dissent, Chief Justice Roberts comments that the Court’s use of substantive due process to find a new right has a troubled history, beginning with Dred Scott, which invalidated a law that violated the implied rights of slaveholders.
In a dissent that has outlasted the majority opinion, Justice Curtis explained that when the “fixed rules which govern the interpretation of laws [are] abandoned, and the theoretical opinions of individuals are allowed to control” the Constitution’s meaning, “we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.”
Religious Liberty, Free Speech Endangered
The dissenters warn of the consequences to enumerated rights: “The majority graciously suggests that religious believers may continue to ‘advocate’ and ‘teach’ their views of marriage…. The First Amendment guarantees, however, the freedom to ‘exercise’ religion.
Ominously, that is not a word the majority uses.”
Moreover, the majority depicted those on the other side of the debate as having disparaged and inflicted “dignitary wounds” on their gay and lesbian neighbors. They must be silenced.
The ruling class dismisses America’s traditional liberties because they aim to replace them with their own primacy, explains Codevilla (op. cit.). Barack Obama and Hillary Clinton say our culture must change. “As Communist theoretician Antonio Gramsci taught, ‘hegemony’ over culture makes it impossible to even think of resisting rulers.” Gay marriage is not the basic issue.
Tip of the Month: In all of my talks on opting out of Medicare, I recommend that physicians start at least 6 months in advance to accommodate the “Medicare bungling factor.” I think it is fair to say that Medicare contractors will always look for ways to make it more difficult for physicians to opt out of Medicare. This may include “losing” the physician’s affidavit; claiming that information (not legally required in the affidavit but required by the individual contractor) is missing; dragging their feet and causing unwarranted delays while the carrier “processes” the opt out affidavit, until the opt out period expires, etc. The last time I renewed my opt out, it took about 4 months or more and about 100 letters of complaint to CMS and Medicare that the carrier was failing to follow Medicare Rules and Regulations with respect to the opt out before I was able to accomplish the renewal. Fortunately, that left me with about 2 months to spare before my opt out period expired. With the new provisions of MACRA, hopefully these “bungling” and delay tactics will be eliminated.
Lawrence R. Huntoon, M.D., Ph.D.
The End of Privacy
Although some “privacy” precedents may be cited, gay rights have nothing to do with privacy—which is becoming virtually impossible, as explained in the Jan 30 special issue of Science. Sources of data to mine come from the GPS in your smart phone, from social media postings, credit card charges, and Google searches.
From kindergarten on, parents give permission for extensive data collection on schoolchildren. States opting into Common Core agree to substantially expand their State Longitudinal Data Services Program, in return for federal grants (MIA, March 2015). Schools that reject Common Core may have Next Generation Science Standards (NGSS), with curriculum mostly from the federal government. One federal module requires students to measure their family’s “carbon footprint” and figure out ways to reduce it.
The electronic medical record is a great opportunity for government to mine information. Patients may wonder why so many doctors are asking about gun ownership, through which the medical system is becoming a kind of gun owner registration system. The question is included in internationally marketed software systems, such as Epic, and 99% of medical offices just follow the EMR script. Government response to the information may be very quick; one man had a visit from Child Protective Services to check on whether his guns were locked up soon after a visit to a San Francisco pediatrician.
The Obama Administration is reportedly collecting a huge database of sensitive personal information to mine for evidence of racial disparities. This could be used to achieve “racial and economic justice,” such as racial balance in every ZIP code (New York Post 7/18/15).
The mere existence of data does not prove malicious intent. However, massive data is necessary to achieve the Technocracy envisioned in the 1930s: a “scientific” system of social engineering to produce and distribute all goods and services to the entire population, based on an energy currency. A breakthrough in quantum computing would make it feasible. And the end of traditional liberties—for which privacy is essential—would enable its imposition by a all-powerful ruling class in the United States.
Correspondence
The Meaning of King v. Burwell. Plain unambiguous English no longer matters. Context can change a clear no into a yes. Bill Clinton’s parsing of the word “is” can now be taken in “proper context.” He can now reclaim his law license. It is clear that we have a law crisis in our country as Congress is no longer the sole author of laws. Both the President and the Supreme Court now rewrite laws. The Supreme Court has rewritten a law which they deemed to be inartfully drafted. Instead of sending it back to Congress to correct, the Court “wrote the term paper for them,” to avoid a calamity that they determined Congress did not intend. The actual wording of the original law really doesn’t matter—the end justifies the means. If a student inartfully drafts a term paper, and the term paper is really bad and earns an “F,” the student should apparently depend on the teacher to rewrite the paper for him because the student clearly did not intend to get an “F.” The Supreme Court deserves the “Alice in Wonderland Award” for interpreting plain English contrary to its clear meaning.
Lawrence R. Huntoon, M.D., Ph.D., Lake View, NY
Decisive Evidence. If public health officials want to demonstrate the benefits of vaccination, they could easily do so by comparing the death rates of vaccinated and unvaccinated children. They are bound to find an excuse not to do this because it more than likely will show they are mistaken. Vaccines are known to cause autoimmune disease in some genetically disposed children.
Michael D. Innis, MBBS, Brisbane, Australia
The Testing Cartel. Pearson, the world’s largest testing company, is responsible for most of the tests you took, e.g. SAT, MCAT, GRE. The Federation of State Medical Boards (FSMB) and the American Board of Internal Medicine (ABIM) are trying to similarly dominate the testing field. Any corporate structure overseeing this environment will create the same problems we see in education today. Testing can be used to steal private information and utilize it against individuals. Protection of privacy is virtually nonexistent. We need to walk away from this, and from the insurance and government incentives to sell our freedoms.
Charles Smutny III, D.O., Centerport, NY
Tax Money Supports Interstate Medical Licensure Compact. Funding to support the IMLC Commission, which will create the bylaws, rules and processes, will come from a grant (http://tinyurl.com/nwufgdw) by the Health Resources and Services Administration (HRSA). I find this to be very worrisome.
Suja Amir, Glen Allen, VA
Quality. CMS has spent billions of dollars trying to measure quality. What they’ve come up with to date is to have doctors spend as much time as possible documenting care. But patients get almost no value waiting for me to document what I’ve already done just so the billing department can process claims.
Then there’s the surgical scorecard by ProPublica, releasing the complication rates of 17,000 surgeons. This is based solely on Medicare’s administrative billing data, so it is virtually meaningless. When I watched ProPublica’s promotional video, I began to question its intent. It builds its case on public fear tactics: 400,000 deaths per year from medical harm—arrived at by extrapolating from an analysis of 38 “preventable” deaths!
PQRS, the silliest four letters in healthcare, are no better than a coin flip at measuring quality. The files outputted by CMS-certified software aren’t even accurate.
Rocky D. Bilhartz, M.D., http://bilhartzmd.com
Metrics. Quality metrics are used by corporations, which measure success by selling to populations. Physicians treat patients, one at a time. Personalized medical care is nothing like population health, and the only way to define quality is to ask each individual patient. When we let government and insurers into the exam room we got MU, MOC, and the rest of the acronyms that are destroying our profession. Most medical societies are too entwined with the government-corporate collusion to do the right thing for physicians. The only thing that will work is to just say no.
Steven Horvitz, D.O., Moorestown, NJ
What Is Population Health? If this is defined by one powerful authority there is potential for rationing or abuse of physicians’ or patients’ civil rights. For example, Russian psychiatrists formulated political reeducation for dissidents and refuseniks, including fellow physicians. When German physicians, universities, and medical institutions became subservient to National Socialists, population health morphed into loss of physician autonomy, eugenics, and eventual genocide. We need to maintain a diversity of views in the U.S. so physicians can maintain their primary allegiance to their patients, rather than serving only the state.
Katherine Murray Leisure, M.D., Plymouth, MA
What Happens If You Fail the Exam? So far no official from the AOA, AMA, ABIM, or any other organization has given an intelligent answer to the question, even if asked directly, of what a long-time established physician should do if he fails the recertification exam. Should he just close his office, abandon his patients, and find a job as a shoe salesman or highway toll taker?
Robert S. Maurer, D.O., Edison, NJ
