Volume 68, no. 5 May 2012
In an astonishing attack on the U.S. Supreme Court, Barack Obama called the justices as “an unelected group of people” who could “somehow overturn a duly constituted and passed law.”
“Ultimately, I am confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”
We remember the Christmas Eve arm-twisting, the corrupt deal-making, the unprecedented distortion of congressional procedure, and the final vote: 219 to 212 in the House. A majority of voters favor repealing the law, and 75% believe the individual mandate is unconstitutional (Kim Geiger, LA Times 2/27/12).
As AAPS pointed out in an amicus brief, this process itself was unconstitutional under the Presentment Clause (AAPS News, June 2011). But if the Affordable Care Act (ACA) is a “duly constituted and passed law,” so were all the others that the Supreme Court has overturned in the 209 years since Marbury v. Madison, notes Thomas Sowell. There is no way that constitutional law professor Obama really thinks overturning ACA would be unprecedented, states Sowell. He is simply counting on dumbed-down education to keep people from knowing the facts, and on the media not to expose him (Investors Business Daily 4/4/12).
Obama’s concerns about “judicial activism” are selective. The Administration is arguing for voiding the Defense of Marriage Act (DOMA), passed with overwhelming bipartisan support including 188 House Democrats and 32 Senate Democrats, in Golinski v. U.S. Office of Personnel Management.
The fact that Supreme Court justices are not subject to electoral pressures is of course part of the Constitution’s scheme of checks and balances. It is unusual for a President to attack the Supreme Court; the usual Progressive response is to try to pack it.
“Unelected” also describes the bureaucrats in the hundreds of new agencies set up to write and enforce the new ObamaCare rules. Moreover, decisions of the Independent Payment Advisory Board (IPAB) are insulated from administrative or judicial review.
A bill 2,700 pages long inevitably sets up a “hierarchy of privilege microregulated by an unaccountable, unelected, unconstrained, unknown and unnumbered bureaucracy,” writes Mark Steyn (http://tinyurl.com/6m43u4l).
Implementing the Rationale and Ideology of ObamaCare
Also unelected are what Robert M. Goldberg calls “Obamacare’s medical mercenaries”: the American Board of Internal Medicine Foundation (ABIMF) and its proxies. The ABIMF “Choosing Wisely” campaign is framed as a voluntary program to encourage doctors to cut down on “unnecessary medical tests.” The campaign offers “lists” of 45 tests to avoid from 9 different medical groups. It is part of the ABIMF and American College of Physicians (ACP) charter to make doctors “better stewards” in the “just and cost effective distribution of finite [medical] resources.” It gives the doctor’s seal of approval to ObamaCare’s practice guidelines and rationing, Goldberg writes.
“The definitive tone of denial repudiates the Hippocratic Oath and replaces it with the spirit of The Hunger Games.”
Christine Cassell, head of ABIMF, and Harold Sox, former president of ACP, were early advocates of comparative effectiveness research (CER). Together, CER and ObamaCare innovation grants “make up the biggest cesspool of single source contracts in government,” Goldberg writes, even dwarfing Obama’s alternative energy programs in dollars, cronyism, and political correctness (American Spectator 4/13/12, http://tinyurl.com/7svg8p7).
From the Apr 18 theme issue of JAMA on CER, it is clear that population health, including “disparities,” is a priority. Patients and caregivers are acknowledged as stakeholders, along with “clinicians, hospitals and health care systems, payers, the life sciences industry, and the research community.” Adding a “patient-centered perspective” to that of “earlier priority-setting groups” would “most likely make CER more meaningful,” but including patients “could pose substantial challenges.” For example, in prioritizing research questions or selecting outcomes, different patients will want different questions answered.
A “Democratically Elected” Congress
However elected, Congress has delegated its authority to self-perpetuating authorities beyond its control. But is it really democratically elected in the first place, that is by properly qualified voters in a fair process? Or is it a new political class that buys reelection, by fraud if necessary, from special interests with our money?
During our nation’s first century, the average tenure of Congressmen and Senators was 2 and 4 years, respectively. Citizen volunteers contributed a few years to political service, then went back to their normal careers. Today, the average tenure is 10 and 12 years (Arthur Robinson, Common Sense 2012). It is an extremely lucrative career, not just because of generous salary and perquisites that congressmen vote for themselves, but because of the “insider stock tips, land deals, and cronyism that would send the rest of us to prison” (Peter Schweizer, Throw Them All Out). “The corruption in Congress is so wide and so deep that there cannot be any member of Congress who does not know about it and, at least, tolerate it,” Robinson writes (Access to Energy, October 2011).
Such a body should have no power over medicine, and in 2012, “unelect” should be used as an active verb.
“What’s in It”
Americans are still learning what is in ObamaCare:
- Medicare Part B premiums will increase from $104.20 in 2012, to $120.20 in 2013, to $247 in 2014.
- Medicaid expansion forces $118 billion in unfunded mandates on states through 2023.
- Government takeover of student loans eliminated competition. The Dept. of Education borrows from Treasury at 2.8% and charges students 6.8%. Profit from overcharging students helps fund ObamaCare (WSJ 3/29/12).
- The federal deficit would increase by up to $530 billion over the next 10 years, according to a meticulous 52-page study of ACA’s spending and revenue projections by Charles Blahous of the Mercatus Center (http://tinyurl.com/c2c8zzk). ACA double counts fictional Medicare savings.
- A $17 trillion funding gap was announced by Sen. Jeff Sessions (R-AL), based on analysis of long-term funding requirements (Daily Caller 3/30/12, http://tinyurl.com/dxhnbjn).
- Premiums in the individual market will be 19% to 30% higher than without ObamaCare, predicts MIT economist Jonathan Gruber, reversing himself (Forbes 3/22/12).
- Insurance industry incurs a $360 billion net cost from 2012-2021 without the mandate; would net $6 billion benefit with the mandate (Holtz-Eakin and Smith, WSJ 3/20/12).
Comparative Effectiveness Research (CER)
The new class of Besserwissers in medicine has happened upon a formula for a lifelong sinecure: “continuous” working on a problem without ever solving or fixing it. We have had “continuous quality improvement,” and constant recertification, and with CER we now have “continuous patient engagement.”
The key insight into why CER will not lead to definitive answers is offered by David Kent and Nilay Shah of Tufts Medical Center: “A fundamental contradiction of evidence-based medicine (EBM) is that evidence is derived from groups, whereas medicine is applied to individuals.” The results of model predictions are “essentially educated guesses of the unknowable future based on the available evidence and a particular model” (JAMA 4/18/12).
This $1.1 billion enterprise to replace the art of medicine may claim to benefit patients and clinicians, but the real purpose is to assist “policymakers” and “health plans and other payers” to “make informed decisions that will improve health care at both the individual and population levels.”
Outside the U.S., the UK’s NICE has the most teeth and is the most comprehensive example of CER. Has it improved outcomes or lowered expenses since its establishment in 1999? “It is almost impossible to say.” In Germany, only 25% of physicians even read clinical guidelines, owing to the belief that they detract from the patient-physician relationship (ibid.).
Daniel Greenfield, http://tinyurl.com/bq2fcg8
Maintenance of Certification (MOC) Survey
Of 167 physicians who responded to last month’s on-line survey, only 5% thought MOC was good and should be supported. The process was judged to be “educational” by 14%; “reasonable,” by 7%; “a valuable protection for patients,” by 4%; “onerous,” by 61%; and “irrelevant to what I do,” by 61%. Of those who have been recertified, 58% said they would quit before going through the process again. Commenters called MOC “a scam,” “an exercise in indoctrination,” “nonsense,” and “so artificial it is useless.” See complete results at http://bit.ly/HP2kPV.
MLR Rule Will Destroy Insurance
ObamaCare demands that most health insurance plans operate with a medical loss ratio of 85%, or 80% for the individual market. It will be virtually impossible to offer consumer-driven plans under this rule. John Graham asks why politicians are not attacking other (non-health) insurers who spend only 70% or even 50% of every dollar on claims. For property underwriters, a loss ratio of 71% in 2011 was considered catastrophic. Almost all auto insurers have loss ratios in the 60s. There is no outrage, Graham suggests, because casualty insurers offer real insurance and don’t get involved in our lives unless there is a severe loss. We recognize that adjusting big claims is labor-intensive and expensive. And since the premiums are low (Graham reports combined premiums for auto, home, and umbrella coverage at less than $900/year), we don’t notice the administrative load.
“To hit the MLR bogey, health plans will have to work harder than ever to attract the healthy and shun the sick,” Graham concludes (http://tinyurl.com/6p9fxfk).
Who’s to Blame? Many have asked why Obama allowed the challenge to ACA to come to the Supreme Court before the election—instead of filing a petition for re-hearing en banc. Did he inadvertently miss a deadline? Or did he intend to assure that healthcare reform is a good campaign issue for him? Either it’s a triumph, or there is something to blame for the failure of ACA, other than ACA itself.
“On its own terms, ObamaCare is a scheme that cannot work and was not designed to work,” writes Holman W. Jenkins, Jr. “The problem is not that…ObamaCare…can’t work without the mandate… It can’t work without the Chinese or someone lending us trillions of dollars indefinitely so the federal government can keep spending money it doesn’t have” (WSJ 3/28/12).
Its real purpose seems to be “taking a wrecking ball to the existing system.”
AAPS Calendar
May 18-19, 2012. Workshop, board meeting, Somerset, NJ.
Oct 4-6. 69th annual meeting, San Diego, CA.
ACTION OF THE MONTH
Analysis of oral arguments in the Supreme Court on ObamaCare case, by AAPS General Counsel Andrew Schlafly: Read and share with colleagues: http://tinyurl.com/7anpljh.
The Taxing Power
“The first income tax was imposed during the Civil War under President Abraham Lincoln—you know, the Great Emancipator. He is known for abolishing chattel slavery in seceding states; he is less well-known for introducing tax slavery in all the states.
“The government was just getting its foot in the door. The top tax rate at first was 5 per cent. And that was only on relatively high incomes.
“The U.S. Supreme Court, which in those days paid some attention to the Constitution, struck down the income tax several times. So, in the days of Woodrow Wilson, the Sixteenth Amendment was adopted….
“…Over time, the tax code became enormously complex, while the debasement of money drove ordinary people into tax brackets originally aimed at the rich. The government, needless to say, was impenitent and unapologetic about what looked very much like a bait-and-switch operation.
“Along the way, the Federal Government greatly expanded its own powers, no longer bothering to amend the Constitution. The welfare state, though flagrantly unconstitutional, created broad political support for usurped powers. Franklin Roosevelt, a president of multifaceted treachery, consciously adopted the demagogic strategy of buying votes by soaking the rich.
“Federal programs, all unconstitutional, have continued to multiply and expand. We now live in what Hilaire Belloc dubbed ‘the Servile State,’ in which one part of the population is forced to support the other….
“It may seem doubtful that the truth will penetrate enough people to reverse the trend. Passivity, ignorance, cowardice, venality, and sheer discouragement will always keep the majority acquiescent. The government’s greatest strength is the enormous numbers who depend for their income on its abuse of the taxing power. They sense that a return to constitutional government would be a disaster for them.
“But a vigorous and intelligent minority, if it refuses to surrender, can do wonders. The good news is that such a minority already exists, and it is growing.” (http://tinyurl.com/7ca8v5h)
[The above is an excerpt from Joe Sobran’s March 5, 2002 column, “The Rise of Tax Slavery.” Reprinted with permission. © Fitzgerald Griffin Foundaton, http://www.fgfBooks.com.]
Historic Words from the Justices
- Justice Breyer: If the plaintiff’s argument is accepted, then “Medicaid has been unconstitutional since 1964.”
- Justice Kagan: “Why is a big gift from the federal government a matter of coercion? It’s just a boatload of federal money. It doesn’t sound coercive to me, let me tell you.”
- Justice Ginsburg: The severability argument is “a choice between a wrecking operation…or a salvage job.”
- Justice Kennedy: “Leaving just part of the act might be more extreme than striking the whole thing.” Taking out just the individual mandate would in effect be creating a new law that Congress “did not provide for, did not consider.” To wit, costs would soar with no mechanism to contain them.
- Justice Sotomayor: “If you use health services, you have to pay with insurance. Because only insurance will guarantee that whatever need for health care that you have will be covered.”
ACA and the Constitution
In the oral arguments before the Supreme Court, the government’s lawyer, Solicitor General Donald Verrilli, could not offer a limiting principle on federal power if the individual mandate is upheld, though liberal Justices essentially begged him to do so—because such a principle does not exist.
As Justice Kennedy pointed out, the mandate fundamentally changes the individual’s relationship to the federal government, as it gives the central authority the power to force him to enter a private contract against his will. “Until now,” writes Richard Fogoros, M.D., (“DrRich”) “in order to form a valid contract both parties had to enter the contract voluntarily.” (http://bit.ly/HK7waZ)
To many, the argument is not about what the Constitution actually says or does not say, or what the Framers intended, but about “a clash of two world views.” It’s about “framing the issues,” writes Mark A. Hall, J.D. (NEJM 4/19/12). “Does ensuring liberty consist only of freeing people from constraints and commands, or does it also entail empowering people and expanding opportunities?” The Justices have starkly contrasting views, and “cynics believe that these…undermine the Court’s legitimacy as an apolitical institution,” he writes.
Justice Ruth Bader Ginsburg may not much like the job of upholding the U.S. Constitution, as she has sworn to do. Speaking to the Muslim Brotherhood in Cairo, she stated, “I would not look to the United States Constitution if I were drafting a constitution in the year 2012.” Instead, she recommended the Canadian Charter of Rights and Freedom and the European Convention on Human Rights (Steyn, op. cit.).
In response to a demand by judges on the U.S. Circuit Court of Appeals for the Fifth Circuit to clarify Obama’s position on the authority of the U.S. Supreme Court, Attorney General Holder wrote that “the power of the courts to review the constitutionality of legislation is beyond dispute.” However, the courts were obliged to consider that “Acts of Congress are ‘presumptively constitutional.’” Courts try not to nullify more of a law than necessary because “a ruling of unconstitutionality frustrates the intent of the elected representatives of the people.”
Ludicrous Linchpin for ObamaCare
The Obama Administration is relying heavily on the 1942 precedent of Wickard v. Filburn, in which the Court declared that it is “hardly lack of due process for the government to regulate that which it subsidizes.”
“The case spurred a vast increase in political-bureaucratic control over American life, even though the court’s ruling rested on mind-boggling economic illiteracy,” writes James Bovard (LA Times 3/29/12, http://tinyurl.com/73pp3rx).
New Deal policies drove the price of wheat in the U.S. to three times the world market price. Surpluses resulted. Then the Roosevelt Administration “built a Chinese wall around export farmers.” In Wickard, justices showed scant curiosity about the cause of the loss of exports, treating it like an act of God.
“Like FDR’s agricultural policy, contemporary healthcare policy is a tangle of manipulation and contradictions,” Bovard states. Politicians complain about soaring costs while ignoring the disruption of markets by Medicare and other subsidies. They feel “entitled to rule anyone who depends on a market they mangle.”
Correspondence
New Bioethics Is Population Based. The subtitle of the Associated Press article on Dick Cheney’s heart transplant is: “His age, 71, is focal point of ethical issues raised.” The article quotes renowned bioethicist Arthur Caplan: “I’ve been arguing for a long time that the system should pay more attention to age because you’ll [society] will get a better return on the gift” [because younger people are more likely to live longer].
Overt rationing of care by age is part of the Complete Lives System created by Ezekiel Emanuel among others. Caplan will be heading a new division of medical ethics in the Department of Population Health at NYU—note how population health and bioethics are overtly linked. Emanuel will essentially take Caplan’s place at the University of Pennsylvania Center for Bioethics.
Lawrence R. Huntoon, M.D., Ph.D., Lake View, NY
Let Seniors Exit Social Security. Social entitlement programs will produce ever-escalating deficits. Yet there are tens of thousands of high-income seniors who would do just fine without Social Security or Medicare. Shouldn’t we consider a way for them to exit the system, say with a discounted cash payout, and leave taxpayers with a lower burden than they would otherwise have? Just as parties to a lawsuit may find it in their self interest to make an agreement today in order to avoid an uncertain future outcome, everyone with a stake in our elderly entitlements might come to a similar conclusion. (http://bit.ly/HhFL7p)
John Goodman, Ph.D., National Center for Policy Analysis
Crushed by Acronyms. CMS provides a list of its more than 4,000 acronyms (http://www.cms.gov/apps/acronyms/listall.asp?letter=all). Many, such as HIPAA, HITECH, and PQRS are associated with voluminous rules, with monetary penalties and even incarceration for violators. Medicine cannot survive under this immense weight. You cannot win at a game when other parties can change the rules at will. We must all take action by disenrolling from all government and insurance programs. The survival of physicians and patients depends on it.
Craig M. Wax, D.O., Mullica Hill, NJ
Fossilized Error. In the argument on ObamaCare, there was no hint that the Court could have been in error on Wickard v. Filburn. It is as though every previous case has been decided correctly, so that we need to distinguish this case rather than admit to the ludicrous error of saying it is constitutional for government to decree that the price of wheat must not fall below an arbitrary minimum.
Tamzin Rosenwasser, M.D., Venice, FL
Millennials Will Pay. Young people supported Obama’s health care reform by a 13-point margin. If it’s not overturned, they will face a monthly bill for something they don’t want and probably won’t use, which costs much more than it would without the law. The more than 20 new taxes aimed at today’s wealthiest will punish tomorrow’s middle class.
Hadley Heath, Independent Women’s Forum
“Affordable” Housing—and Health Care. Everyone needs a place to sleep, and most people at some time need medical care. The Administration’s lawyer told the Supreme Court that those who lack insurance are denied care. By the same logic, those who can’t get a mortgage have to sleep in the street. The same government that demanded that banks provide mortgages to those who could not repay is demanding that physicians, hospitals, and insurers accept all comers at a government-set price. “Affordable” in both contexts means government-subsidized. Congress and the President have declared war on the U.S. economy so that soon the federal government will own the homes and the health care system, and ration each as it sees fit.
Dave Racer, St. Paul, MN
“Affordable” in Massachusetts. In its telephone survey on the results of RomneyCare, Health Affairs looked only at out-of-pocket costs to determine “affordability” (http://tinyurl.com/85qfsy7). There has been surprisingly little study of RomneyCare’s total costs. It appears that the cost is about $22,000 for each newly insured person, half borne by private payers and half shifted to the federal government. The claims of “improved health” refer to an increase from 59.7% to 64.9% in self-reports of good-to-excellent health, with two-thirds of the gains occurring immediately after enrollment, before receiving any care. Placebo effect?
Linda Gorman, Ph.D., Independence Institute, Golden, CO
How Can You Be So Much Cheaper? When people ask how prices can be so low at http://surgerycenterok.com, I ask, “How can others justify charging ten times what we do?” Starting with the assumption that hospital prices are legitimate is a mistake. We won’t know whether our prices are right until we have competitors posting their prices on-line. I have had insurers offer our facility a contract for payments based on a super-percentage of Medicare. You should see the looks of consternation I get when I say these rates mean nothing to me. They are arbitrary, capricious, and not legitimate. They are considered the standard only because most have weakly accepted them as such, without scrutiny.
G. Keith Smith, M.D., Oklahoma City, OK
