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Supreme Court Rejects Executive Power Claim:
The Supreme Court today rebuffed the Bush Administration's claim to broad executive power, rejecting arguments first asserted in a 2001 opinion by the DOJ Office of Legal Counsel. The vote was 6-3.

  Justice Kennedy's majority opinion flaty rejected the Bush Administration's broad claims to executive authority, dismissing the Administration's position as a "radical shift" to claim "extraordinary" and "unrestrained" power:
  [T]he Attorney General claims extraordinary authority. If the Attorney General's argument were correct, his power . . . would be unrestrained. It would be anomalous for Congress to have so painstakingly described the Attorney General's limited authority . . . but to have given him, just by implication, authority [over] an entire class of activity . . . .
  Justice Kennedy rejected claims made on behalf Attorney General Alberto Gonzales that the Executive Branch had independent authority to interpret federal law: "The statutory terms. . . do not call on the Attorney General, or any other Executive official, to make an independent assessment of the meaning of federal law." "The idea that Congress gave the Attorney General such broad and unusual authority . . . is not sustainable." The Court's opinion ended with a particularly harsh rebuke of the Administration's claims of broad executive power and reemphasized the role of Congress:
  The Government, in the end, maintains that the [statute] delegates to a single Executive officer the power to effect a radical shift of authority . . . . The text and structure of the [statute] show that Congress did not have this far-reaching intent to alter the [institutional] balance and the congressional role in maintaining it.
  Justice Scalia dissented, joined by Chief Justice Roberts and Justice Thomas. Scalia argued that it was proper to defer to the Executive Branch's efforts to protect public safety, noting that from "an early time in our national history, the Federal Government has used its enumerated powers" to protect such interests.

  (Okay, so the case today involved assisted suicide, not enemy combatants or the NSA surveillance program. Still, the language in Kennedy's majority opinion is pretty interesting, isn't it?)
mark:
We can debate whether this decision hinges on precedent viz Raisch or a more granular analysis of the CSA. The recognition of

"inalienable rights" is fundamental to this nation. It is "self-evident" that no law can be written to prevent someone from

ending their own life. What the state can do, however, is to coerce the desperate and dying, or worse, a loved-one, into

ending their suffering with a bullit to the brain.
1.17.2006 8:48pm
Kevin Murphy:
Orin--

I really don't see how you stretch denying the executive legislative powers on normal domestic issues to imply anything about executive war powers.

What I find more interesting is Thomas' back-handed assertion that the Court has walked away from Raich as precedent.
1.17.2006 8:57pm
Bub (mail):
In Garamendi the Court recognized that the President has unitary authority to set and effect foreign policy. And he no longer needs to tie the policy to a text such as an executive order, but rather may rely on a general policy pronouncement as interpreted by sub-cabinet level officials. This despite Constitutional requirements that the Senate ratify treaties.

Garamendi appears a lot closer to the issues likely to be raised when/if the Court hears arguments regarding enemy combatants and NSA surveillance than today's decision.
1.17.2006 9:14pm
Alan Meese (mail):
Perhaps one distinction between the NSA case and this case is that the Constitution makes the President "Commander-in-Chief." It does not make him "Pharmacist-in-Chief." And, Justice Kennedy's concurring opinion in Public Citizen v. United States draws a strong distinction between cases in which Congress regulates the President's "executive power," on the one hand, and those in which it tries to interfere with his enumerated duties (e.g., appointments and Commander-in-Chief). The latter, Kennedy said, are instances of Congressional overreaching.
1.17.2006 9:26pm
TomMH (mail):
I haven't yet read the opinion, but what about the federalism/commerce clause issue? Did the Court avoid it by turning the issue into whether the attorney general can interpret the meaning of 'legitimate' medical use (or whatever)?

And did Thomas REALLY cite Raich (?!?!) in his dissent?

I need to go read the opinion, because I'm totally uninformed right now... but... this just strikes me as the craziest vote ever in a federalism case. Am I missing something?

(OK, I'll just shut my mouth and go read the opinion now!)
1.17.2006 9:40pm
anonymous22:
Orin's post is further evidence that Kennedy simply cannot write an opinion without getting all moralistic about somesuch issue implicated by the case. This time the issue is ostensibly executive power, the overextension of which offends the esteemed justice greatly; tommorrow it may be terrorists or drug dealers, which Kennedy can also wax moralistic about.

On the Thomas issue, I think Thomas is upset that the Court did not deal with the constitutional issues, which had served as the basis of the 9th circuit ruling but which were conspicuously excluded from the Court's opinion.
1.17.2006 9:46pm
David Sucher (mail) (www):
"I really don't see how you stretch denying the executive legislative powers on normal domestic issues to imply anything about executive war powers."

The hitherto clear line between "domestic" and "international" matters is no longer. The "global village" has erased what might have been at one time a clear distinction. The very path of this comment -- from Seattle (?) to LA (?) via Paris or Rio or who-knows-where -- is simply one example. Far from attempting to buttress the President's assertions, my only point is that it is no longer quite as useful as it might have been even twenty years ago to distinguish Presidential powers between on some presumed nexus.
1.17.2006 9:48pm
Just an Observer:
On the one hand, I have a hard time reading too much constitutional implication into this case because it is fundamentally about interpreting a statute.

On the other hand, the vote split was along the ideological spectrum. At one end of that spectrum, Thomas seemed to be complaining in his dissent that the majority was injecting constitutional issues where there should be none.
1.17.2006 9:49pm
Ian (www):
Orin's post is further evidence that Kennedy simply cannot write an opinion without getting all moralistic about somesuch issue implicated by the case. This time the issue is ostensibly executive power, the overextension of which offends the esteemed justice greatly; tommorrow it may be terrorists or drug dealers, which Kennedy can also wax moralistic about.

Whatever you think of Justice Kennedy (he's not my favorite either), I find Orin's suggestion that his choice of language in a statutory interpretation case could hint at how he would vote in Executive Power cases to be interesting. Remember, the test to winning an Supreme Court case is not whether a clever lawyer can explain why Justice Kennedy's reasoning in one case should not apply to a different, easily distinguishable case. The test is whether or not five or more Justices, with all the prejudices and predispositions their bring, decide to vote in your favor.

I'll also point out that Orin is a former Kennedy clerk, so his insights into what Justice Kennedy may or may not be hinting at are worthy of attention. It seems like Kennedy is staking a claim as a committed anti-monarchist. Regardless of what clever arguments the Administration might advance to convince him otherwise, it appears they will have a tough time getting Kennedy's vote in favor of a limitless Commander-in-Chief power.
1.17.2006 9:54pm
Chris S.:
a22: I think Thomas was more upset that Raich meant that there was no real constitutional question to be posed/argued. If there is no practical limit to Congress' power as exercised in the CSA, then the issue is simply whether Congress has used its power or not.

Had he won in Raich, I'm curious what Thomas' opinion here would have looked like. I'm not sure the outcome would be different, but I'm curious.
1.17.2006 9:59pm
Cornellian (mail):
Scalia argued that it was proper to defer to the Executive Branch's efforts to protect public safety, noting that from "an early time in our national history, the Federal Government has used its enumerated powers" to protect such interests.

Which of course, completely ignores the issue of whether Congress has, in fact, conferred such power on the executive branch in the first place. This is a statute that says prescriptions have to be for a legitimate medical interest, with no definition, and no authority to the AG to enact regulations defining that term. Regulation of the medical profession has always been in state jurisdiction. It's a statute that hadn't previously been used to try to prohibit assisted suicide authorized under state law. It's a statute that Ashcroft, while a senator, had tried to amend to prohibit prescriptions for assisted suicide, regardless of state law, but was unsuccessful. When he became AG he simply declared that assisted suicide wasn't a legitimate medical procedure, regardless of state law, without so much as a phone call to anyone in Oregon. Yet now Scalia says the AG can simply declare, without any statutory authorization, what the term means and the courts should defer to that.

Well so much for Scalia the textualist, but that originalism and textualism get tossed aside whenever he doesn't like where they lead.
1.17.2006 10:06pm
Just an Observer:
For cosmic speculation about where this court might come down on the hot issues of wartime executive power -- in both a civil-liberties and separation-of-powers context -- I think the best case to read is still Hamdi.

Imagine that fractured case with Rehnquist and O'Connor replaced by Roberts and Alito, then place your bets.
1.17.2006 10:08pm
Justin (mail):
::pats self on back::
1.17.2006 10:14pm
David Hecht (mail):
ISTM that there is a huge difference between the President exercising his authority on a purely domestic matter and on a matter of national security (pace David Sucher above).

Furthermore it is a matter of historical record that a certain amount of pulling and tugging goes on in this framework (foreign and security policy) between the legislative and executive branches. Indeed the Court has historically tried to avoid entangling itself in those sorts of disputes, on the sensible grounds that they are "political issues".

If the Court suddenly decides (as it may yet do in Hamdi) to inject itself into the management of security policy it risks being overruled or even ignored by the executive (as President Jackson did after Cherokee Nation v. Georgia). I assume the justices are cognizant of this.
1.17.2006 10:17pm
Just an Observer:
David Hecht: "If the Court suddenly decides (as it may yet do in Hamdi) to inject itself into the management of security policy it risks being overruled or even ignored by the executive ..."

I sort of thought Hamdi was a done deal. Did you mean Padilla, perhaps?
1.17.2006 10:37pm
Wintermute (www):
I think Kennedy is wise enough now to know that if the Court over-enhances exec power, their own power will suffer gravely -- in the worst scenario, irretrievably, and that respect for the Article I branch gives the Court the allies it needs to win against the Article II branch. We're not at (true) war, peeps; and authoritarian bootheels don't feel so great in my back. I can live with this 6-3 lineup and pray for the health of Justice Stevens to maintain a 5-4 lineup until the fear factor is in perspective and a different breed occupies the WH. Hey, I know this comment isn't about legal niceties; but I already argued that way in front of my state's Court of Appeals today, so excuuuuuuse me.
1.17.2006 10:38pm
Just an Observer:
Wintermute,

I have more faith in the current court than you do, and I think the Republic is safe if the issues are justiciable. In Hamdi, the most extreme claim by the administration that the executive had unilateral authority got only one vote (Thomas).

I don't think either Roberts or Alito would vote with Thomas if the case were replayed today. In fact, I think they would both be comfortable with the O'Connor-Rehnquist-Kennedy-Breyer plurality that rebuked the President's claim.
1.17.2006 10:52pm
Ian (www):
If the Court suddenly decides (as it may yet do in Hamdi) to inject itself into the management of security policy it risks being overruled or even ignored by the executive (as President Jackson did after Cherokee Nation v. Georgia). I assume the justices are cognizant of this.

The purpose of separation of powers is to overt tyranny by allowing one branch of government to check another, overreaching branch, and thus ensuring that the ambitions of a potentially tyrannical leader in one branch are checked by the ambitions the other branches. See The Federalist No. 10. Given this purpose, I can imagine nothing more dangerous than the judicial branch declaring "oh, the Executive has become so tyrannical that they will no longer obey constitutionally mandated checks and balances, therefore, we must comply fully with their wishes."
1.17.2006 10:54pm
Mary Katherine Day-Petrano (mail):
I think Raich was a stupid case, although helpful from the perspective of expanding the commerce power. It is obvious the lawyers who brought Raich did not know the Americans With Disabilities Act. It would seem to me if they brought suit under the Fourteenth Amendment and (1) sue for the States not ADA Self-Evaluating medical marijuana, thereby providing "lesser health services" to certain categories of disabled people, and (2) invoked what the Eleventh Circuit in Shotz v. City of Plantation, Fla. called "vertical and horizontal preemption, i.e., the ADA's express conflict preemption statute caused the ADA to supercede in part "other federal law" under the CSA as to medical marijuana, maybe Raith could have won.

Then we have the lawyers who briefed the assisted suicide, an issue almost every disabled person I know fears because they know if reasonable accomodations are denied to certain communication disabled people, we might all end up involuntarily like Terri Schiavo -- euthanized against ou will because it is more convenient for society to get rid of us and costs less. Assisted suicide is a slippery slope leading to another Holocaust, and every vulnerable disabled person knows it. And we strongly object to policies and laws like this.

As I said about Roe v. Wade, it seems to me a lot of briefing went on in assisted suicide that did not address the effect of pre-existing legislation available to enable enforcement of ratified U.S. treaties, namely the Convention Against Genocide. I learned from the Harvard LLM civil rights attorney that my reading of the ADA's "incorporation" clause, 42 USC Sec. 12101(b)(4) (illustrative list), was correct, and like the Alien Tort Claims Act enabling enforcement of treaties is to Filartega v. Pena-Irala, the ADA is to enabling domestic enforcement of treaties. It would seem to me that if the ADA's enabling enforcement of the Convention Against Genocide (by implementing the treaty and removing the non-self-executing feature) were brought to bear against the assisted suicide slippery slope problem, today's Supreme Court decision woudl have gone the other way. States are prohibited from legislating in an area covered by a treaty, and there is the additional probability the Supremacy Clause might be determined to cause automatic conversion of the Convention Against Genocide to domestic law.

In any event, there are som many lawyers who never take an international law class or know anything about any other Title of the ADA besides Title I employment. It is such a loss, and inexlicable seeing as law firms could rain make with these cases in light of the ADA's allowing recovery of attorneys fees.

And what is wrong with Justice Kennedy? He writes pretty straight forward opinions from the many I have read; are some people projecting their own weepy "waxing moralistic" criticisms because they do not like it when Justice Kennedy takes a stand?
1.17.2006 10:59pm
JunkYardLawDog (mail):
Protection of life, health, and welfare is a necessary part of the police powers of the States for sure. Are there no arguments for these kinds of inherent police powers for the federal government???

The Doctor's first oath is "First Do No Harm". How is it far fetched for the AG to say a violation of that oath by assisting in the intentional killing of a patient is NOT medical treatment?? It seems to me that alone would be a reasonable basis for the AG's finding. You don't have to be a doctor to evaluate that particular occassion. The AMA should amend their code, if they support this thing.

My problem with doctors assisting in suicide is that I think HMO's push their doctors and hospitals to push relatives to pull the plug on relatives and just about trick the grieving and not thinking straight into signing various releases and no ressucitation orders etc. now, when its illegal for doctors to kill patients. It is difficult to imagine the nightmare situations that might evolve if one became very ill in a hospital in Florida, for example, if assisted suicide by doctors were legal.

HMO treatment plan: 1. Have the doctor get the patient appropriately disoriented through various medications all according to what looks like a proper treatment plan on paper. 2. Tell the patient they would be better off dead, over and over (but not in written form). Play on the patient's empathy for not being a burden on others, and convince the patient they are selfish for wanting continued treatment or to be ressucitated. 3. Have the doctor kill them. 4. Close file and decide on what bonuses to pay the doctor and hospital for managing to kill, er assist with the suicide, of that patient before reaching a certain expenditure level and/or length of hospitalization and/or treatment.

Yeah, no need for police powers to protect life there, I guess.

Imagine the nightmare if instead of HMO's running healthcare in the above situation it was government HillaryCare itself, with sovereign immunity for its actors, running the doctors and hospitals. Bureaucrats could justify the murder, er I mean assisted suicide, of patients just on the grounds that the patients who didn't want to be murdered, er I mean assisted with suicide, were running up the costs of government rationed healthcare and were violating thereby the group rights of others waiting patiently in line for their share of government rationed healthcare.

Now all of the above scares me a hell of a lot more than the NSA listening to me telling my wife what I want for dinner while trying to figure out where the enemy is and what they are planning next.

Says the "Dog"
1.17.2006 11:12pm
Alan Meese (mail):
Ian:

Who is arguing for a "limitless Commander-in-Chief power?" I have only seen arguments for allowing the President to direct military operations, including operations to gather intelligence. Are there broader arguments out there?
1.17.2006 11:33pm
Milhouse (www):
Of course the Executive Branch has independent authority to interpret federal law. But the Judicial Branch doesn't have to go along with that interpretation, any more than the Executive Branch has to go along with the Judicial Branch's interpretation. So long as a matter stays within the Executive Branch, and doesn't need a court's approval, the Executive is free to follow its own understanding - indeed it is obligated to do so, and not to defer to an interpretation that it believes is mistaken. But if it wants to charge someone with a crime, it has to do that in a court of law, where it is merely a party to a case, on the same level as the defendant, and it is the judiciary's interpretation that will be applied.
1.17.2006 11:34pm
Alan Meese (mail):
Wintermute:

Every time I pass through a metal detector at an airport or government agency and get my brief case X-rayed at the same, with no reasonable suspicion (let alone a warrant or probable cause) to support either search, I will remember "authoritarian bootheels!"
1.17.2006 11:38pm
Justin (mail):
Milhouse,

Just to play Devil's Advocate, what if the executive decides it is constitutionally enabled/compelled to hold people without trial if the judiciary refuses to enforce (what the executive believes is) a valid statutory authority, subject to enough constitutional protections as afforded by an Article I court, as determined by the executive's view of the bill of rights?

(Just for this hypo, let's assume no connection to war on terror, US Citizen, Congressional enacted law that was struck down by SCOTUS, such as the VAWA).
1.17.2006 11:39pm
Alan Meese (mail):
Milhouse:

Exactly right, and exactly what Madison and Jefferson said. Each branch is supreme in its own sphere, and the President has to interpret the Constitution when carrying out his duties. However, decisions that require judicial involvement to, say, convict someone give the judiciary the last word.
1.17.2006 11:42pm
JunkYardLawDog (mail):
Mary Katherine, yours was an interesting and different take on this issue. Thanks.

Says the "Dog"
1.17.2006 11:56pm
Donald Clarke (mail):
But to take the other extreme, if we do forbid all assisted suicide under all conditions, how many people are we condemining to a extended and probably painful death? I guess the upper bound on that is just how much of our GDP we can spend on healthcare, if we apply heroic measures to keep everyone "alive" as long as possible. IIRC the WSJ descibed a case a few years ago where a man was kept alive in a coma for 6 weeks at a cost of over $2 million (he needed a very expensive drug - app $200 K per dose).

At some point, we are going to ration health care. The very rich will always be able to pay for the best possible care. The rest of us will make do with less. If we had "hillarycare" or some other single-payer system, we might all have some coverage besides the emergency room. We would also have more of our healthcare dollars going to treatment instead of the insurance industry's overhead and advertising costs.

Donald Clarke
1.17.2006 11:58pm
Cornellian (mail):
Protection of life, health, and welfare is a necessary part of the police powers of the States for sure. Are there no arguments for these kinds of inherent police powers for the federal government???

There are no arguments for ANY "inherent police powers" for the federal government. They have only the powers granted in the Constitution, no more. Only the states have inherent police powers. That's bedrock Constitutional law.

The Doctor's first oath is "First Do No Harm". How is it far fetched for the AG to say a violation of that oath by assisting in the intentional killing of a patient is NOT medical treatment?? It seems to me that alone would be a reasonable basis for the AG's finding. You don't have to be a doctor to evaluate that particular occassion. The AMA should amend their code, if they support this thing.

The question is what Congress intended the statute to mean, not what the AG wants it to mean. AG Ashcroft, when he was a senator, tried to get the statute amended to say what he wanted, and failed. Nothing in the statute gave the AG the power to issue regulations defining what was a legitimate medical procedure. His opinion is not entitled to any more deference by the courts than mine.

My problem with doctors assisting in suicide is that I think HMO's push their doctors and hospitals to push relatives to pull the plug on relatives and just about trick the grieving and not thinking straight into signing various releases and no ressucitation orders etc. now, when its illegal for doctors to kill patients.

The Oregon statute requires the person to have a terminal illness, to be certified by two doctors to be of clear mind, and he himself must consent. Relatives can't consent on his behalf. The people of Oregon consider this sufficient protection, since they approved the law by popular vote in a referendum. They're entitled to do that and it's none of the federal government's business, and certainly not the business of an Attorney General trying to rewrite a statute to say what he couldn't get it amended to say when he was a senator.
1.18.2006 12:02am
David Hecht (mail):
Just an Observer: Aye. Slip o'the brain. Probably early-onset Alzheimer's! :-/

Ian: There is nothing in the Constitution that makes the SC the ultimate arbiter of what is constitutional and what is not: all of that rests on _Marbury_, not the text of the Constitution itself. And as Justice Jackson rightly observed, the Constitution is not a suicide pact. "Salus populi suprema lex".

And--frankly--talking about "tyrannical" actions isn't helpful. One man's tyranny is another's prudential action, as this exchange surely demonstrates.
1.18.2006 12:13am
Ian (www):
Who is arguing for a "limitless Commander-in-Chief power?" I have only seen arguments for allowing the President to direct military operations, including operations to gather intelligence. Are there broader arguments out there?

The White House has asserted that the Commander-in-Chief Power grants the President inherent authority to protect the nation through whatever means he deems are necessary to preserve national security. Furthermore, they claim that the Commander-in-Chief Power grants the President sole discretion over which techniques are used to wage a war. Therefore, just as Congress could not order a brigade to attack enemy outpost A or to retreat from enemy attack B, so too is Congress constitutionally forbidden from limiting the President's ability to wage war through torture, warrantless surveillance, or detention.

The detention cases are probably the most disturbing. In recent litigation, the White House advanced two arguments: 1) the post-9/11 authorizing act grants the President authority to wage war on terrorism, which includes the power to kill, which must also include the power to detain, and 2) The President has inherent Article II power to detain anyone who in his sole determination is an "enemy combatant.

Setting aside the first argument, which is probably wrong but for more complicated reasons than I care to get into here, the second argument asserts nothing less than a limitless power to detain, based only on the President's mere say-so that the detention was made to protect national security. The power to detain is the power to destroy, and if the President's argument is taken to its logical extreme, than there is nothing preventing him from detaining any political enemy, any dissenter, or any person who looks at him funny. If the President truly has an unchecked power to detain, than the only thing protecting the entire nation from deportation to Gitmo is the restraint and good faith of Mr. George W. Bush. Such a power is, for all intents and purposes, limitless, and I can't imagine that it does not scare the crap out of Justice Kennedy and others, which in turn explains why I think Orin's analysis of Gonzales v. Oregon is spot on.
1.18.2006 12:15am
CharleyCarp (mail):
There's a line from Justice Kennedy that I hope to read in an AUMF/FISA case: “Congress, we have held, does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions–it does not, one might say, hide elephants in mouseholes.” (quoting Whitman v. American Trucking Assns., Inc., 531 U.S. 457, 468 (2001)).
1.18.2006 12:16am
Ian (www):
There is nothing in the Constitution that makes the SC the ultimate arbiter of what is constitutional and what is not: all of that rests on _Marbury_, not the text of the Constitution itself.

This may be the most awesomely radical statement this side of the Interposition Editorial. I normally try to give folks who disagree with me the courtesy of a discussion on the merits, but I fear your statement is so off the deep end, and so destructive of one of the fundamental assumptions which over two centuries of law are based upon, that I will merely ask you what color the sky is in your world, and leave you to smile in blissful ignorance of the consequences of hitting the reset button on the entirety of American constitutional law.

Oh, and judicial review is quite a bit older than Marbury. See, e.g., Kamper v. Hawkins, 3 Va. (1 Va. Cas.) 20 (1793).
1.18.2006 12:27am
Justin (mail):
Elephants in mouseholes!!!! Ah, legislation class :)
1.18.2006 12:43am
Dave:
"I sort of thought Hamdi was a done deal. Did you mean Padilla, perhaps?"

I think he meant Hamdan. It's currently before the court. If I remember correctly (don't quote me on this) they'll hear it in march.
1.18.2006 1:06am
CrazyTrain (mail):
Who is arguing for a "limitless Commander-in-Chief power?" I have only seen arguments for allowing the President to direct military operations, including operations to gather intelligence. Are there broader arguments out there?

Translation: I am willfully ignorant. As another commenter put it: Bush asserts the power to be Commander-in-Chief of the Constitution, and no damn dern Judgifying is going to stop him.

1.18.2006 1:19am
CrazyTrain (mail):
JunkyardDog -- Do you know anything about the law?

Says the Crazy Train. (Why do conservative bloggers like to give themselves pretend names?? Hindrocket, Captain Ed, Big Trunk, etc., etc.)
1.18.2006 1:23am
JunkYardLawDog (mail):
So can I assume then that CrazyTrain is your legal name, or are you saying that only conservative lawyers must blog under their real names? How would you know if it was my real name or just a real sounding name? Why do you care?

Yes, there have been a few times when I've been accused of knowing something about the law, and it isn't junkyarddog, its JunkYardLawDog. (smile)
1.18.2006 1:50am
JunkYardLawDog (mail):
To Donald Clarke:

>>>>>>
But to take the other extreme, if we do forbid all assisted suicide under all conditions, how many people are we condemining to a extended and probably painful death?
<<<<<<

I've got no problem with a patient asking for or leaving instructions for the removal of all extrordinary care (respirators and the like, but not including food and water). I also can understand how some people in certain horrible situations could want to end it all. If that is to ever be allowed, I don't think it should be doctors and hospitals that do it, and all profit potential whether from fees or organ donations, etc. should be removed from the equation. The potential for abuse when hospitals and doctors are involved in doing this is just too great.

>>>>>>>>>>
I guess the upper bound on that is just how much of our GDP we can spend on healthcare, if we apply heroic measures to keep everyone "alive" as long as possible. IIRC the WSJ descibed a case a few years ago where a man was kept alive in a coma for 6 weeks at a cost of over $2 million (he needed a very expensive drug - app $200 K per dose).
<<<<<<<<

People wake up from coma's after 15 years. However, I don't think you frame the question correctly. I don't think a hospital has an obligation to provide care for which the patient has no ability to pay. I don't think its the government's job to pick up that care either. You pay, you have insurance that pays, or you don't. People are responsible to provide for themselves. Therefore, its not a question of spending collective GNP. Note, the preceding does not refer to emergency life sustaining treatment, nor is it opposition to free and reduced cost county hospitals and clinics for the poor.

<<<<<<<<<<<<<<
At some point, we are going to ration health care.
>>>>>>>>>>>>>>

Not by the government. I reject that categorically. Your statement is true in the sense that the free markets ration all goods/services. Healthcare just being another good/service.


>>>>>>>>>
The very rich will always be able to pay for the best possible care.
<<<<<<<<<

Not if healthcare is government rationed. In Canada its a felony to pay for private care or preferential care. Same in Briton I believe. One of them any way. Irrelevant to a proper analysis even if true.


>>>>>>>>
The rest of us will make do with less. If we had "hillarycare" or some other single-payer system, we might all have some coverage besides the emergency room.
<<<<<<<<

Single payer systems are exactly the OPPOSITE way to go. Such a system will exacerbate the problem of escalating costs even more, and will result in bureaucratic rationing that is always the worst possible solution. Witness the horrible systems in Canada and Great Briton.


>>>>>>>>>>
We would also have more of our healthcare dollars going to treatment instead of the insurance industry's overhead and advertising costs.
<<<<<<<<<<

That's a joke right? You actually think government bureaucracy overhead is LESS than the private sector. I'm afraid there is no basis of which I am aware to support your claim. There is plenty of emperical evidence to the contrary however. Government bureaucracy solve this equation by withholding care, limiting care, decreasing available supply irrespective of consumer demand. It results always in an unmitigated disaster.

What we need to figure out how to do is to do the opposite of single third party payer. Single third party payer is the worst of the worst. Third party payer insurance that has removed the consumer from any consideration of price in determining and negotiating healthcare is the reason why we have such rapidly rising healthcare costs. What we need is a system that puts the consumer of healthcare back in charge of the paying. Eliminate third party paying systems as we have now. Make insurance work to reimburse consumers for what they spend, with consumers able to reap the cash benefits (in some manner) of spending their healthcare dollars rationally and sensibly. Things like this and others will put more price competition back into the healthcare business and will have a positive affect on costs/prices.

For a clear example of how third party insurance or third party single payor systems drive up prices/costs you can look no further than the local laser surgery eye clinic. By and large these surgeries have never been covered by insurance. They were therefore not subject to the third party payer price increase incentives. As a result the costs of these surgeries have decreased by around 70% over the past 10 years or so, at a time when the costs of all other medical care (including asprin dispensed at a hospital) were increasing at dramatic rates.

When the insurance companies weren't paying the bills and the consumer was forced to shop on the basis of value and price, the doctors found a way to provide the service with better results at a much lower cost/price. Supply and demand at work, even in healthcare. Another thing would be to greatly de-regulate healthcare in terms of the supply decisions made by providers. Do away completely with certificates of need and all the other regulatory crap that prevents innovative doctors and administrators from providing new and better levels of services and service concepts in healthcare. Its none of the government's business if a private person or company wants to build 10 hospitals right next to each other. It isn't their money its the investors money. More supply equals lower prices. Get the government out of the business of decreasing supply artificially through stupid regulations.

A third party single payer system where the government is that third party single payer would destroy the quality of healthcare in this country for all who currently have insurance, and in the end do nothing to improve the lot of the 10% or 20% that are uninsured. It would be the marxist answer to healthcare. Let's all have really poor healthcare together, except for the elitists making it so for the rest of us.

Says the "Dog"
1.18.2006 2:28am
John Quiggin (mail):

Accepting the minority position for the sake of argument, isn't it open to the Executive to rule either way, not only on assisted suicide but on abortion, overriding state laws whether they permit or prohibit?

Not of course that the minority in this case would consider for a moment supporting similar claims of executive power by a Democratic president implementing policies to which they are opposed, but logical consistency would imply that they should.
1.18.2006 2:42am
minnie:
So what are people who are old, with no hope of recovery, and in extreme, long term, debilitating, intolerable pain supposed to do if they would rather be dead?

Suffer hideously until the bitter end?

Why is that good?
1.18.2006 3:14am
Noah Klein (mail):
JunkYardLawDog:

While I am not in favor of a single-payer system, I would like to point out that the overhead or administrative costs of public health care is less than that of private heatlh care. For proof of this, I would direct you to this New England Journal of Medicine article. This article compares Canada's single-payer system to U.S. private insurance system. This article's abstract says "Results In 1999, health administration costs totaled at least $294.3 billion in the United States, or $1,059 per capita, as compared with $307 per capita in Canada. After exclusions, administration accounted for 31.0 percent of health care expenditures in the United States and 16.7 percent of health care expenditures in Canada. Canada's national health insurance program had overhead of 1.3 percent; the overhead among Canada's private insurers was higher than that in the United States (13.2 percent vs. 11.7 percent)."

Furthermore, Medicare administrative costs are 2%, while private insurance costs, as stated above, accounts "for 31.0 percent of expenditures in the United States." For confirmation of this, I would direct you to this website. In fact, this report says that "the latest HCFA data show that administrative costs for beneficiaries in HMOs have skyrocketed to 9.1% while traditional Medicare's administrative costs are 2%." I think this evidence demonstrates that public healtcare programs have less of an overhead than private heatlhcare companies.

This, of course, does not make public healthcare programs necessarily better than private. In a single-payer system, a problem develops with choices of medical procedures and also the ability for innovation and other market forces to operate. But to reject public programs or a single-payer system due to the administrative costs is to falsely reject such a system, as is demonstrated above.

Noah
1.18.2006 4:10am
Noah Klein (mail):
JunkYardLawDog:

You're probably not a West Wing fan, but I am and I watched the live debate program they had in November. In that debate program, the Democrat proposed eliminating the age eligibility for Medicare. If as shown above, this program has less overhead than private companies, then I think this would be a good idea to encourage market forces to compel private companies to lower overhead. This program would allow for a choice by individuals whether they want a private program or the Medicare program and would allow for innovation, because no private companies would be eliminated. The only problem I can see with this program would be the possibility of waiting lists like in Britain. But I don't know why this would occur when doctors and hospitals would remain for-profit entities. Obviously, if your goal is to make a profit, you won't make people wait. This seems like a good idea to me. Do you see drawbacks that I can't? If so, could you please tell me where I am wrong?

Noah

P.S. I am sorry for posting about a non-law issue, but since the issue of administrative costs were brought up earlier I thought that this perhaps would be a legitimate place for discussion. I am sorry if I am wrong about that.
1.18.2006 4:18am
KMAJ (mail):
Noah,

You fall into the samer trap so many do when they delve into economics, your focus is too narrow. What happens when you remove the age limit for Medicare ? First, you decline money going into the insurance industry, which loses jobs, and puts people on unemployment. You increase the cost of operating Medicare which will require an increase in taxes, you increase taxes, you decrease profitability of all businesses, which leads to more job losses, more unemployment and a need for more taxes to pay for those unemployment benefits. An increase in taxes leads to people having less of their own money to spend, which leads to a decrease in consumer consumption, which leads to decreased sales and profits and more unemployment. More umemployment and lower profits leads to a decrease in tax revenues, which again requires higher tax rates to raise more revenue. The vicious cycle created by what you espouse is a recipe for economic disaster, just look at the economies in Europe, and creating a socialist cradle to grave nanny state. It all sounds good, wouldn't it be nice to provide relatively free healthcare to all the people ? Who would turn down something for free ? Especially if they have no idea of the repercussions.

The only way to start getting health care costs under control is if people realize they are spending their own money, personal healthcare accounts, so they won't go in for unnecessary medical procedures. That said, there is a need for federal aid for the poor and catastrophic heathcare. We cannot afford to increase the size and scope of entitlement programs, they are already headed on a disaster course, with a Congress unwilling to make the tough decisions that need to be made. The federal deficit and debt can be squarely laid at the feet of entitlement programs.
1.18.2006 4:47am
AppSocRes (mail):
No post here seems yet to have noted that this is the first time the Court has acted in any serious way to restrict the executive branch in its interpretation and execution of the Drug Control Act. Anybody who reads this Act with an open mind cannot but be appalled at the power the Act has given bearaucrats to regulate behavior and even speech. Under the Act people might conceivably be sent to prison just for possessing proscribed literature on drug manufacture. Maybe the Court saw the precipice it was heading towards in Raich and has decided to reverse course a bit on cases involving the Drug Control Act.
1.18.2006 8:39am
NaG (mail):
Here's what I want to know: In light of this decision, according to the Supreme Court, exactly WHO has the authority to determine what "legitimate medical practices" are?

Nothing in the CSA implies to me that the federal government intended for the States to make their own definitions of that term. So if not the States, and not the federal agency that actually enforces the CSA, who? Or is Justice Kennedy's opinion even narrower than it looks, as in it does not preclude DOJ from interpreting the phrase, but merely held that it did not do so adequately in this instance?
1.18.2006 9:45am
Anderson (mail) (www):
Regarding the predictions about Hamdi as indicating future votes, I would just add there's been some water under the bridge since then.

The Justices have less reason than ever to believe that the executive is to be kowtowed to.
1.18.2006 9:47am
Neal Lang (mail):
This program would allow for a choice by individuals whether they want a private program or the Medicare program and would allow for innovation, because no private companies would be eliminated. The only problem I can see with this program would be the possibility of waiting lists like in Britain. But I don't know why this would occur when doctors and hospitals would remain for-profit entities. Obviously, if your goal is to make a profit, you won't make people wait. This seems like a good idea to me. Do you see drawbacks that I can't? If so, could you please tell me where I am wrong?

Congress has delineated "powers" and "authorities" under our Constitution. These are defined in Article I, Sections 8 and 9, to wit:
[Section 8.] The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; --And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

[Section 9.] The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

No Bill of Attainder or ex post facto Law shall be passed.

No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.

No Tax or Duty shall be laid on Articles exported from any State.

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another; nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

Exactly which Clause of these 2 Sections does the West Wing Democrat debator cite as the source of Federal authority to provide Universal Heathcare? Or doesn't the fact that such would be unconstitutional matter? BTW, there is more Constitutional basis for "Drug COntrol" (under the Commerce Clause) than there is for any form of Universal Healthcare.
1.18.2006 9:49am
JunkYardLawDog (mail):
Noah, having not studied these studies you cite its difficult to respond other than to say: 1. Its easy to play games with numbers analyses and statistical information in studies; 2. Its likely that many administrative costs are in effect paid for with fewer services, lower pay to doctors and providers, and lower quality products and services to healthcare consumers. All of these things would cover administrative costs in a hidden way that would show up in these kinds of studies.

Based on my life experiences and knowledge of reports of the efficiency of all government bureaucracies, there is no way I see how the federal government could be more efficient at anything compared to the private sector.

Another problem with your studies would be that they are comparing administrative costs in USA which are largely mandated by government and not market forces to administrative costs in a different country with a different set of government mandates. Government often regulates itself a lot less than others, and regulation costs money.

You are correct, I've never watched a single minute of West Wing, and I don't have any plans to ever do so. Difficult to comment on something I never saw. I would note that in my post administrative costs are NOT the reason why the idea of government healthcare sucks the big one. Its the lack of price competition and healthcare consumer concern for price/quality issues which are the direct result of a third party payer system (whether many third party payers or a single third party payer) combined with overregulation that's the problem.

My laser eye surgery example shows this clearly on an emperical basis.

Says the "Dog"
Gary
1.18.2006 9:53am
David Hecht (mail):
Ian: where in anything I have written do you see an argument for--as you put it--"hitting the reset button" on two centuries of Constitutional jurisprudence? My only point is, in a dispute between the SC and the Executive as to the meaning of the Constitution, the SC's word is not final *as a matter of original intent*.

Now, you can argue--and perhaps I should have done--that, at this point, _Marbury_ constitutes one of those "Super-Duper-Mega-Giga-Precedents" so beloved of the Arlen Specters of this world: but you can't argue that the Constitution gives the SC the *inherent* power to have the final word on Constitutional interpretation.

As to the color of the sky on my planet: it's the same color it was when President Andrew Jackson flipped the bird to the SC (indeed, to the same Chief Justice John Marshall) in _Cherokee Nation v. Georgia_; the same color it was when President Abraham Lincoln flipped the bird to Chief Justice Roger Taney in _Ex Parte Merryman_; indeed, the same color it was when President Franklin Roosevelt threatened to squash the SC's independence with the Court-packing plan.

What color is the sky on *your* planet?
1.18.2006 10:28am
Houston Lawyer:
The AMA should just scrap the Hippocratic Oath now. Clearly it has become an anachronism, no longer applicable to the actual practice of modern medicine.

Assisted suicide laws are truly appalling. In The Netherlands, the practice has rapidly evolved to the point where many old and feeble are being killed without their clear consent. The situation will often come down to those with a financial interest in an early death acting in their own financial interest. Killing grandma for her estate used to be a death penalty offense, regardless of how wretched her condition may have been.
1.18.2006 10:31am
Justin (mail):
NaG wrote:

Nothing in the CSA implies to me that the federal government intended for the States to make their own definitions of that term. So if not the States, and not the federal agency that actually enforces the CSA...

NaG is wrong on two accounts here. The CSA clearly implies that the States would make their own definitions of the practice of medicine, since what is "medicine" has traditionally been defined by the states, and with certain stated objections (i.e., Marijuana is on a specific schedule that cannot be used pursuant to a valid prescription...cocaine is not on that schedule), it was clear that the medical/pharmaceutical regulatory regimes in place by the states would be the determiner of valid and invalid "medical" uses of such drugs. NaG's statement to the contrary leads me to be of the opinion that he did not in fact read the CSA, which, btw, is not exactly a 2 page document.

NaG is also wrong in stating that the Department of Justice is the "agency" which "enforces" the CSA. NaG is technically but meaninglessly right in the fact that the Department of Justice enforces the CSA, but it is not an agency. Agency (which gets its meaning from its relationship to Congress, acting as Congress's "agent" in executing statutes, even though the agency is placed in Article I) is a specific term defined by Congress, most notably in the Administrative Procedure Act. The DOJ is *not* an agency, precisely because Congress has granted THE COURTS and not the DoJ the ultimate and immediate authority to interpret criminal statutes. Chevron, Skidmore, and Mead simply are NOT APPLICABLE outside of either the APA context itself, or a comparable grant of regulatory discretion. No such discretion exists here.

To hear so called conservatives, whose core philosophies call into serious doubt the very constitutionality of the APA, to extend it AS A MATTER OF CONSTITUTIONAL LAW and GENERAL STATUTORY INTERPRETATION is obviously disturbing. It further more once again proves that "textualism" and "originalism" no more constrain the judiciary in any practical sense than structuralism or intentionalism.
1.18.2006 12:30pm
Justin (mail):
Does Houston have any backing whatsoever for his extreme assertions?
1.18.2006 12:30pm
Neal Lang (mail):
Regulation of the medical profession has always been in state jurisdiction.
Really? Then how do you explain the FDA, Controlled Substance Act, Federal Medicare and Medicaid Programs?
Which of course, completely ignores the issue of whether Congress has, in fact, conferred such power on the executive branch in the first place. This is a statute that says prescriptions have to be for a legitimate medical interest, with no definition, and no authority to the AG to enact regulations defining that term.
Hmmm! What function then does the Food and Drug Administration serve? Have you or Justice Kennedy ever heard of "Agency Law"?
Regulatory Agencies: Agencies, like the FDA, EPA, OSHA and at least 50 others, are called "regulatory" agencies, because they are empowered to create and enforce rules - regulations - that carry the full force of a law. Individuals, businesses, and private and public organizations can be fined, sanctioned, forced to close, and even jailed for violating federal regulations. The oldest Federal regulatory agency still in existence is the Office of the Comptroller of the Currency, established in 1863 to charter and regulate national banks.
With the alphabet soup of Federal "Regulatory Agencies" Congress deferred to the "experts" at these agencies to create the necessary "rules - regulations - that carry the full force of a law".
In 1938, the role of the Food and Drug Administration (FDA) was expanded to include prevention of harm to consumers in addition to corrective action.

The Federal Rulemaking Process: is how federal regulations are created and it goes something like this:

First, Congress passes a law designed to address a social or economic need or problem. The appropriate regulatory agency then create regulations necessary to implement the law. For example, the Food and Drug Administration creates its regulations under the authority of the Food Drug and Cosmetics Act, the Controlled Substances Act and several other acts created by Congress over the years. Acts such as these are known as "enabling legislation," because the literally enable the regulatory agencies to create the regulations required to administer enforce them.
The approved medicinal use of narcotics is "pain relief", and not "death of the patient". Typically, in States where drugs are used as the means of execution, such use of narcotics must be authorized by State Statute AND "Due Process".

Query: in a Nation founded on the "unalienable right to life", can "suicide" be justified as a "legitimate medical interest"?
unalienable, adj. Not to be separated, given away, or taken away; inalienable: “All of them... claim unalienable dignity as individuals” (Garrison Keillor).
As to the "Authority of the Attorney General under the Controlled Substances Act", it would appear as though Congress allowed the AG great latitude in his "Authority" under this Title, to wit:
Controlled Substances Act
PART B - AUTHORITY TO CONTROL; STANDARDS AND SCHEDULES
§ 811. Authority and criteria for classification of substances.

(a) Rules and regulations of Attorney General; hearing
The Attorney General shall apply the provisions of this subchapter to the controlled substances listed in the schedules established by section 812 of this title and to any other drug or other substance added to such schedules under this subchapter. Except as provided in subsections (d) and (e) of this section, the Attorney General may by rule -

(1) add to such a schedule or transfer between such schedules any drug or other substance if he -
(A) finds that such drug or other substance has a potential for abuse, and
(B) makes with respect to such drug or other substance the findings prescribed by subsection (b) of section 812 of this title for the schedule in which such drug is to be placed; or
(2) remove any drug or other substance from the schedules if he finds that the drug or other substance does not meet the requirements for inclusion in any schedule.

(d) International treaties, conventions, and protocols requiring control; procedures respecting changes in drug schedules of Convention on Psychotropic Substances

e) Immediate precursors

The Attorney General may, without regard to the findings required by subsection (a) of this section or section 812(b) of this title and without regard to the procedures prescribed by subsections (a) and (b) of this section, place an immediate precursor in the same schedule in which the controlled substance of which it is an immediate precursor is placed or in any other schedule with a higher numerical designation. If the Attorney General designates a substance as an immediate precursor and places it in a schedule, other substances shall not be placed in a schedule solely because they are its precursors.

PART C - REGISTRATION OF MANUFACTURERS, DISTRIBUTORS, AND DISPENSERS OF CONTROLLED SUBSTANCES
§ 821. Rules and regulations.

The Attorney General is authorized to promulgate rules and regulations and to charge reasonable fees relating to the registration and control of the manufacture, distribution, and dispensing of controlled substances and to the registration and control of regulated persons and of regulated transactions.

§ 822. Persons required to register.

(a) Period of registration
(1) Every person who manufactures or distributes any controlled substance or list I chemical, or who proposes to engage in the manufacture or distribution of any controlled substance or list I chemical, shall obtain annually a registration issued by the Attorney General in accordance with the rules and regulations promulgated by him.
(2) Every person who dispenses, or who proposes to dispense, any controlled substance, shall obtain from the Attorney General a registration issued in accordance with the rules and regulations promulgated by him. The Attorney General shall, by regulation, determine the period of such registrations. In no event, however, shall such registrations be issued for less than one year nor for more than three years.

(b) Authorized activities

Persons registered by the Attorney General under this subchapter to manufacture, distribute, or dispense controlled substances or list I chemicals are authorized to possess, manufacture, distribute, or dispense such substances or chemicals (including any such activity in the conduct of research) to the extent authorized by their registration and in conformity with the other provisions of this subchapter.

§ 823. Registration requirements.

(b) Distributors of controlled substances in schedule I or II

The Attorney General shall register an applicant to distribute a controlled substance in schedule I or II unless he determines that the issuance of such registration is inconsistent with the public interest. In determining the public interest, the following factors shall be considered:

(1) maintenance of effective control against diversion of particular controlled substances into other than legitimate medical, scientific, and industrial channels;
(2) compliance with applicable State and local law;
(3) prior conviction record of applicant under Federal or State laws relating to the manufacture, distribution, or dispensing of such substances;
(4) past experience in the distribution of controlled substances; and
(5) such other factors as may be relevant to and consistent with the public health and safety.

(c) Limits of authorized activities

Registration granted under subsections (a) and (b) of this section shall not entitle a registrant to (1) manufacture or distribute controlled substances in schedule I or II other than those specified in the registration, or (2) manufacture any quantity of those controlled substances in excess of the quota assigned pursuant to section 826 of this title.

(e) Distributors of controlled substances in schedule III, IV, or V

The Attorney General shall register an applicant to distribute controlled substances in schedule III, IV, or V, unless he determines that the issuance of such registration is inconsistent with the public interest. In determining the public interest, the following factors shall be considered:

(1) maintenance of effective controls against diversion of particular controlled substances into other than legitimate medical, scientific, and industrial channels;
(2) compliance with applicable State and local law;
(3) prior conviction record of applicant under Federal or State laws relating to the manufacture, distribution, or dispensing of such substances;
(4) past experience in the distribution of controlled substances; and
(5) such other factors as may be relevant to and consistent with the public health and safety.

PART E - ADMINISTRATIVE AND ENFORCEMENT PROVISIONS
§ 871. Attorney General.

(a) Delegation of functions

The Attorney General may delegate any of his functions under this subchapter to any officer or employee of the Department of Justice.

(b) Rules and regulations

The Attorney General may promulgate and enforce any rules, regulations, and procedures which he may deem necessary and appropriate for the efficient execution of his functions under this subchapter. From: Controlled Substances Act
It would appear as though Congress "empowered" the Attorney General to determine, with regards to "Control Substances" what is: a) "inconsistent with the public interest" and b) "such other factors as may be relevant to and consistent with the public health and safety".

Apparently, unlike you and Justice Kennedy, Justice Scalia has read the operative Federal Statute.
1.18.2006 12:31pm
Justin (mail):
David Hecht,

Is your argument that the Trail of Tears and the systematic genocide of the Native American population embodies (or is minimally not contrary) to the principles of Constitutional law? If not, what exactly is your point?
1.18.2006 12:33pm
Justin (mail):
Neal,

By removing the context of the grants of power to the Attorney General to "promolgate rules", you vastly ignore the context in which those grants of power are placed. In any event, you give a death knell to the CSA, as certainly 871(b) is simply unconstitutional to the degree it gives the Attorney General powers BEYOND what was granted by Congress (i.e., Chevron Step One).

The Attorney General's power to "promolgate rules" is boilerplate against a whole range of criminal statutes and has to be read in the tradition it has always has been - to create guidelines for enforcement and discretionary use of its police power. It cannot use its power to criminalize behavior that Congress has not sought to criminalize, nor place the Attorney General in a supervisorial role of the state medical boards, nor to displace the legitimate and Congressionally granted role of the FDA.

As Kennedy said, we do not expect Congress to place elephants (or nuclear bombs) in mouseholes.
1.18.2006 12:38pm
Neal Lang (mail):
The AMA should just scrap the Hippocratic Oath now. Clearly it has become an anachronism, no longer applicable to the actual practice of modern medicine.

Actually, the AMA does not admininster the "Hippocratic Oath" although in 1993, 98% of the medical schools administered some form of the Oath. Instead AMA has a code of ethics.
From: The Modern Oath of Hippocrates
With regards to the Death of a Patient, the AMA "Code of Ethics" states:
1.4 The Dying Patient
a. Remember the obligation to preserve life, but, where death is deemed to be imminent and where curative or life-prolonging treatment appears to be futile, try to ensure that death occurs with dignity and comfort.
b. Respect the patient’s autonomy regarding the management of their medical condition including the refusal of treatment.
c. Respect the right of a severely and terminally ill patient to receive treatment for pain and suffering, even when such therapy may shorten a patient’s life.
d. Recognise the need for physical, psychological, emotional, and spiritual support for the patient, the family and other carers not only during the life of the patient, but also after their death.

From: AMA Code of Ethics 2004
Assisted suicide laws are truly appalling. In The Netherlands, the practice has rapidly evolved to the point where many old and feeble are being killed without their clear consent.

Apparently the Dutch "Assisted Suicide Law" has become legalized euthanasia:
SO-CALLED "NARROW" PROPOSALS WILL INEVITABLY EXPAND. As the New York State Task Force on Life and the Law wrote, "Once society authorizes assisted suicide for...terminally ill patients experiencing unrelievable suffering, it will be difficult if not impossible to contain the option to such a limited group. Individuals who are not (able to make the choice for themselves), who are not terminally ill, or who cannot self-administer lethal drugs will also seek the option of assisted suicide, and no principled basis will exist to deny (it)." [8]

The longest experience we have with assisted suicide is in the Netherlands, where not only assisted suicide but also active euthanasia is practiced. The Netherlands is a very frightening laboratory experiment where, because of assisted suicide and euthanasia, "pressure for improved palliative care appears to have evaporated," [9] according to Dr. Herbert Hendin in Congressional testimony in 1996. Assisted suicide and euthanasia have become not just the exception, but the rule for people with terminal illness.

"Over the past two decades," Hendin continued, "the Netherlands has moved from assisted suicide to euthanasia, from euthanasia for the terminally ill to euthanasia for the chronically ill, from euthanasia for physical illness to euthanasia for psychological distress and from voluntary euthanasia to nonvoluntary and involuntary euthanasia. Once the Dutch accepted assisted suicide it was not possible legally or morally to deny more active medical (assistance to die), i.e. euthanasia, to those who could not effect their own deaths. Nor could they deny assisted suicide or euthanasia to the chronically ill who have longer to suffer than the terminally ill or to those who have psychological pain not associated with physical disease. To do so would be a form of discrimination. Involuntary euthanasia has been justified as necessitated by the need to make decisions for patients not competent to choose for themselves." [10] In other words, for a substantial number of people in the Netherlands, doctors have decided patients should die without consultation with the patients.

Notes:
[8] New York State Task Force on Life and the Law, "When Death is Sought," 1997 supplement

[9] Herbert Hendin, M.D., "Suicide, Assisted Suicide and Euthanasia: Lessons From the Dutch Experience," U.S. House of Representatives, Committee on the Judiciary, Oversight Hearing, April 29, 1996.

[10] Herbert Hendin, M.D., "Suicide, Assisted Suicide and Euthanasia: Lessons From the Dutch Experience," U.S. House of Representatives, Committee on the Judiciary, Oversight Hearing, April 29, 1996.

From: Why Assisted Suicide Must Not Be Legalized

The objections to Assisted Suicide are moral:
Six Objections to the Moral Permissibility of Voluntary Euthanasia
Objection 1
It is often said that it is not necessary nowadays for anyone to die while suffering from intolerable or overwhelming pain. We are getting better at providing effective palliative care and hospice care is available. Given these considerations it is urged that voluntary euthanasia is unnecessary.

There are several flaws in this counter-argument. First, while both good palliative care and hospice care make important contributions to the care of the dying neither is a panacea. To get the best palliative care for an individual involves trial and error with some consequent suffering in the process. But, far more importantly, even high quality palliative care commonly exacts a price in the form of side effects such as nausea, incontinence, loss of awareness because of semi-permanent drowsiness, and so on. A rosy picture is often painted as to how palliative care can transform the plight of the dying. Such a picture is misleading according to those who have closely observed the effect of extended courses of treatment with drugs like morphine, a point acknowledged as well by many skilled palliative care specialists. Second, though the sort of care provided through hospices is to be applauded, it is care that is available only to a small proportion of the terminally ill and then usually only in the very last stages of the illness (typically a matter of a few weeks). Third, the point of greatest significance is that not everyone wishes to avail themselves of either palliative care or hospice care. For those who prefer to die in their own way and in their own time neither palliative care nor hospice care may be attractive. For many dying patients it is having their autonomous wishes frustrated that is a source of the deepest distress. Fourth, as indicated earlier when the conditions under which voluntary euthanasia is advocated were outlined, not everyone who is dying is suffering because of the pain occasioned by their illness. For those for whom what is intolerable is their dependence on others or on machinery, the availability of effective pain control will be quite irrelevant.

Objection 2
A second, related objection to permitting the legalisation of voluntary euthanasia is to the effect that we never have sufficient evidence to be justified in believing that a dying person's request to be helped to die is competent, enduring and genuinely voluntary.

Notice first that a request to die may not reflect an enduring desire to die (cf. some attempts to commit suicide may similarly reflect temporary despair). That is why advocates of voluntary euthanasia have argued that normally a cooling off period should be allowed. But that said, the objection claims we can never be justified in believing someone's request to die reflects a settled preference for death. This goes too far. If someone discusses the issue with others on different occasions, or reflects on the issue over an extended period, and does not waver in her conviction, her wish to die is surely an enduring one.

But, it might be said, what if a person is racked with pain, or befuddled because of the measures taken to relieve her pain, and so not able to think clearly and rationally about the alternatives? It has to be agreed that a person in those circumstances who wants to die cannot be assumed to have a competent, enduring and genuinely voluntary desire to die. However, there are at least two important points to make about those in such circumstances. First, they do not account for all of the terminally ill, so even if it is acknowledged that such people are incapable of agreeing to voluntary euthanasia that does not show that no one can ever voluntarily request help to die. Second, it is possible for a person to indicate in advance of losing the capacity to give competent, enduring and voluntary consent, how she would wish to be treated should she become terminally ill and be suffering intolerably from pain or from loss of control over her life. ‘Living wills’ or ‘advance declarations’ are legally useful instruments for giving voice to people's wishes while they are capable of giving competent, enduring and voluntary consent, including to their wanting help to die. As long as they are easily revocable in the event of a change of mind (just as ordinary wills are), they should be respected as evidence of a well thought out conviction. It should be noted, though, that any request for voluntary euthanasia or physician-assisted suicide will not be able lawfully to be implemented (outside of The Netherlands, Belgium and Oregon).

Perhaps, though, what is really at issue in this objection is whether anyone can ever form a competent, enduring and voluntary wish about being better off dead rather than continuing to suffer from an illness before actually suffering the illness. If this is what underlies the objection it is surely too paternalistic to be acceptable. Why cannot a person have sufficient inductive evidence (e.g. based on the experience of the deaths of friends or family) to know her own mind and act accordingly?

Objection 3
According to one interpretation of the traditional ‘doctrine of double effect’ it is permissible to act in ways which it is foreseen will have bad consequences provided only that

(a) this occurs as a side effect (or indirectly) to the achievement of the act which is directly aimed at or intended;

(b) the act directly aimed at is itself morally good or, at least, morally neutral;

(c) the good effect is not achieved by way of the bad, that is, the bad must not be a means to the good; and

(d) the bad consequences must not be so serious as to outweigh the good effect.

In line with the doctrine of double effect it is, for example, held to be permissible to alleviate pain by administering drugs like morphine which it is foreseen will shorten life, whereas to give an overdose or injection with the direct intention of terminating a patient's life (whether at her request or not) is considered morally indefensible. This is not the appropriate forum to give full consideration to this doctrine. However, there is one vital criticism to be made of the doctrine concerning its relevance to the issue of voluntary euthanasia. With that point made we will be able to turn to the more general question of the moral permissibility of intentional killing.

The criticism of the relevance of the doctrine of double effect to any critique of voluntary euthanasia, at least on what seems to me to be a defensible reading of that doctrine, is simply this: the doctrine can only be relevant where a person's death is an evil or, to put it another way, a harm. Sometimes ‘harm’ is understood simply as damage to a person's interest whether consented to or not. At other times it is more strictly understood as wrongfully inflicted damage. On either account, if the death of a person who wishes to die is not harmful (because from that person's standpoint it is, in fact, beneficial), the doctrine of double effect can have no relevance to the debate about the permissibility of voluntary euthanasia. (For an extended discussion of the doctrine of double effect and its bearing on the moral permissibility of voluntary euthanasia see McIntyre, 2001.)

Objection 4
There is a widespread belief that passive (voluntary) euthanasia, where life-sustaining or life-prolonging measures are withdrawn or withheld, is morally acceptable because steps are simply not taken which could preserve or prolong life (and so a patient is allowed to die), whereas active (voluntary) euthanasia is not, because it requires an act of killing. The distinction, despite its widespread popularity, is very unclear. Whether behaviour is described in terms of acts or omissions (which underpins the alleged distinction between active and passive (voluntary) euthanasia), is generally a matter of pragmatics not of anything of deeper importance. Consider, for instance, the practice of deliberately proceeding slowly to a ward in response to a request to provide assistance for a patient who is subject to a ‘not for resuscitation’ code. Or consider ‘pulling the plug’ on an oxygen machine keeping an otherwise dying patient alive as against not replacing the tank when it runs out. Are these acts or omissions; cases of passive euthanasia or active euthanasia?

More fundamentally, though, those who think some reliance can be placed on the distinction think that, at least in a medical context, killing is morally worse than letting die. Consider the case of a patient suffering from motor neurone disease who is completely respirator dependent, finds her condition intolerable, and competently and persistently requests to be removed from the respirator so that she may die. Even the Catholic Church in recent times has been prepared to agree in cases like this one to the turning off of the respirator. Is this merely a case of letting the patient die?

It is often said that even if motives and consequences are agreed to be in common, if someone's life is intentionally terminated she has been killed, whereas if she is no longer being aggressively treated her life is not ended by the withdrawal of such aggressive treatment but by the underlying disease.One way to show that it is in most cases implausible to think that the withdrawal of life sustaining measures involves no intention to terminate the patient's life is to consider the growing practice of withholding artificial nutrition and hydration in those instances where a decision has been made to cease aggressive treatment, and then to see if we can generalise to cases like that of the motor neurone sufferer (cf. Winkler, 1995). Many physicians would say that their intention in withholding life-sustaining artificial nutrition is simply to respect the patient's wishes, and this is plausible in those instances where the patient is still able competently to ask for such treatment no longer to be given (or the patient's proxy makes the request). However, unless there has been such a request from a competent patient (or the patient's proxy), the best explanation of the physician's behaviour in withdrawing life-sustaining nutrition will be that the physician intends thereby to end the life of the patient. Permanently withdrawing nutrition from someone in, say, an irreversible coma (a persistent vegetative state), thereby starving the patient, is not merely to foresee that death will ensue, but to intend the death. What could be the point of the action, the goal aimed at, the intended outcome, if not the ending of the patient's life? No sense can be made of the action as being intended to serve to palliate the disease, or to keep the patient comfortable, or even, in the case of a person in a permanently vegetative state, as allowing the underlying disease to carry the person off. The loss of brain activity is not going to kill the person. What is going to kill the patient is the act of starving her to death. That is the clear intention, not merely something foreseen as an unfortunate side effect, but in no way aimed at.

Can this claim be extended to other circumstances than those involving the withdrawal of life-sustaining nutrition? The giving of massive doses of morphine, way beyond what is needed to control pain, or the removal of a respirator from a sufferer from motor neurone disease would seem, by parallel reasoning, to amount to the intentional bringing about of the death of the person being cared for.

So that there is no misunderstanding, it should be conceded that there are circumstances where doctors can truthfully say that actions which they perform, or omissions which they make, do lead to the deaths of their patients without them intending that those patients should die. Thus, for instance, if a patient refuses life prolonging medical treatment because she considers it useless, it might reasonably be said that the doctor's intention in complying is simply to respect the patient's wishes. But the point made earlier was of much wider significance and was aimed at showing that it is utterly stilted to claim, as some doctors do, that it can never be the intention in performing certain actions and omissions to intend to bring about death and hence that those actions and omissions cannot count as killings.

Two final points need to be added to round off the discussion of the fourth objection. First, much of the debate surrounding the objection is premised on the belief that killing, at least in medical contexts, cannot morally be justified. For that reason alone the medical profession has long found psychological comfort in the belief that even if killing cannot be justified it is quite another thing to allow a patient to die (where that involves no negligence) because there the cause of death is natural. This underlying assumption is one that is open to challenge (and has been challenged in e.g. Rachels, 1986, chs. 7, 8; Kuhse, 1987). First, there will be cases, namely those where someone who has requested assistance to die and is allowed to die, rather than killed, where it is morally worse to allow to die because all that does is prolong the patient's suffering. The second point to make is that despite the longstanding legal doctrine that no one can justifiably consent to be killed (on which more later), it surely is relevant to the justification of an act of killing someone that she has autonomously decided that that would be best for her.

Objection 5
It is often said that if society allows voluntary euthanasia to be legally permitted we will have set foot on a slippery slope that will lead us inevitably to support other forms of euthanasia, especially non-voluntary euthanasia. Whereas it was once the common refrain that that was precisely what happened in Hitler's Germany, nowadays the claim tends to be that the experience of The Netherlands in the last decade or so confirms the reality of the slippery slope. Slippery slope arguments come in at least three different versions: logical, psychological and arbitrary line. What the different forms share is the contention that once the first step is taken on a slippery slope the subsequent steps follow inexorably, whether for logical reasons, psychological reasons or to avoid arbitrariness in ‘drawing a line’ across a person's actions. (For further discussion see e.g. Rachels, 1986, ch. 10; Brock, 1992, pp. 19ff.).

We first consider why, at the theoretical level, none of these forms of argument appears powerful enough to trouble an advocate of the legalisation of voluntary euthanasia. We then comment on the alleged empirical support from the experiences of Hitler's Germany and The Netherlands of today for the existence of a slippery slope beginning from voluntary euthanasia.

There is nothing logically inconsistent in supporting voluntary euthanasia but rejecting non-voluntary euthanasia as morally inappropriate. Since the two issues are logically separate there will be some advocates of voluntary euthanasia who will wish also to lend their support to some acts of non-voluntary euthanasia (e.g. for those in persistent vegetative states who have never indicated their wishes about being helped to die or for some severely disabled infants for whom the outlook is hopeless). Others will think that what may be done with the consent of the patient sets a strict limit on the practice of euthanasia. The difference is not one of logical acumen. It has to be located in the respective values of the different supporters (e.g. whether self-determination alone or the best interests of a person should prevail).

As regards the alleged psychological inevitability of moving from voluntary to non-voluntary euthanasia (where there is no way of knowing the patient's views because the patient is neither competent nor has made any provision for a proxy to make a substituted judgment), again it is hard to see the alleged inevitability. Why should it be supposed that those who value the autonomy of the individual and so support provision for voluntary euthanasia will, as a result, find it psychologically easier to kill patients who are not able competently to request assistance with dying? What reason is there to believe that they will, as a direct result of their support for voluntary euthanasia, be psychologically driven to practise non-voluntary euthanasia?

Finally, if there is nothing arbitrary about distinguishing voluntary euthanasia from non-voluntary euthanasia (because the line between them is based on clear principles) there can be no substance to the charge that there is a slide from voluntary to non-voluntary euthanasia that can only be prevented by arbitrarily drawing a line between them.

What, though, of Hitler's Germany and The Netherlands of today? The former is easily dismissed as a provider of evidence for an inevitable descent from voluntary euthanasia to non-voluntary. There never was a policy in favor of, or a legal practice of, voluntary euthanasia in Germany in the 1920s to the 1940s (see, for example, Burleigh (1994)). There was, prior to Hitler coming to power, a clear practice of killing some disabled persons. The justification was never suggested to be that their being killed was in their best interests, rather it was said to be society that benefited. Hitler's later revival of the practice and its widening to take in other groups such as Jews and gypsies was part of a program of eugenics, not euthanasia.

Since the publication of the Remmelink Report in 1991 into the medical practice of euthanasia in The Netherlands it has frequently been said that the Dutch experience shows decisively that legally protecting voluntary euthanasia is impossible without also affording protection to the non-voluntary euthanasia that will come in its train. Unfortunately, many of those who have made this claim have paid insufficient attention to the serious studies carried out by van der Maas, et al. (1991), and van der Wal, et al. (1992a and 1992b) into what the Report revealed. In a second nation-wide investigation of physician-assisted dying in the Netherlands carried out in 1995 a similar picture emerged as had in the earlier Remmelink Report. Again no evidence was found of any descent down a slippery slope toward ignoring people's voluntary choices to be assisted to die (see van der Maas, et al. (1996); van der Wal, et al. (1996); Griffiths, et al. (1998)). The true picture is that, of those terminally ill persons assisted to die under the agreement between the legal and medical authorities, a little over one half were clearly cases of voluntary euthanasia as it has been characterised in this article. Of the remainder, the vast majority of cases were of patients who at the time of the assisted death were no longer competent. The deaths of some of these were brought about by withdrawal of treatment, that of others by interventions such as the giving of lethal doses of anaesthetics. But there are two critical points to be made: first, in the overwhelming majority of such cases the decision to end life was taken after consultation between the doctor(s) and family members and, second, according to the researchers, most of the cases are to be seen as like the practice common in other countries where voluntary euthanasia is not legally tolerated of giving large doses of opioids to relieve pain knowing all the while that this will also end life. It is true that in a very few cases of this kind there was no consultation with relatives, only with other medical personnel. This is explained by the researchers as having occurred because families in The Netherlands strictly have no final authority to act as surrogate decision-makers for incompetent persons. That there have only been a handful of prosecutions of Dutch doctors for failing to follow agreed procedures (Griffiths, et al. (1998)), that none of the doctors prosecuted has had a significant penalty imposed, and that the Dutch public have regularly reaffirmed their support for those agreed procedures suggests that, contrary to the claims of some critics of The Netherlands' experience of legally protecting voluntary euthanasia, social life has not broken down. Indeed, such studies as have been published about what happens in other countries, like Australia (see Kuhse, et al. (1997)), where no legal protection is in place, suggest that the pattern of things in The Netherlands and elsewhere is quite similar. If active euthanasia is widely practised but in ways that are not legally recognized there is apt in fact to be more danger that the distinction between voluntary cases and non-voluntary ones will be blurred or ignored than in a situation where the carrying out of euthanasia is transparent and subject to monitoring.

We can bring this discussion of the fifth objection to a close with two observations. First, nothing that has been said should be taken as suggesting that there is no need to put in place safeguards against potential abuse of any legal protection for voluntary euthanasia. This is particularly important for those who have become incompetent by the time decisions need to be taken about assisting them to die. As was mentioned very early on, there are ways of addressing this issue (such as by way of advance declarations or living wills) which are widely thought to be effective, even if they are not perfect. The main point to be stressed at the present, though, is that there is surely no need for anyone to be frightened into thinking that the legalisation of voluntary euthanasia will inevitably end in her having her life snatched away from her should she become incapable of exercising a competent judgement on her own behalf. Second, it is, of course, possible that the reform of any law may have unintended effects. It is sometimes said in discussions about legalising voluntary euthanasia that experience with abortion law reform should remind us of how quickly and easily practices can become accepted which were never among the reformers' intentions, and that the same thing could occur if voluntary euthanasia were to become legally permitted. No amount of theorising, it is said, can gainsay that possibility. There is no need to deny that it is possible that reform of the laws that presently prohibit voluntary euthanasia could have untoward consequences. However, if the arguments given above are sound (and the Dutch experience is not only the best evidence we have that they are sound, but the only relevant evidence), that does not seem very likely.

Objection 6
I turn now to the final objection to be considered here. It is often claimed that whatever the morality of an individual's deciding for herself that her life is no longer of value to her, that provides no basis for the formulation of public policy. The fear of the slippery slope is, no doubt, part of the concern expressed here. But, as well, there are concerns about the role of the law and more particularly, its contribution to the regulation of medicine.

Legal permission for doctors to perform voluntary euthanasia cannot simply be grounded in the right of self-determination of patients. We have already had occasion to note that the law does not presently permit an individual to consent to her own death. Nevertheless, the very same fundamental basis of the right to decide about life-sustaining treatment -- respect for a person's autonomy -- underpins voluntary euthanasia as well. Extending the right of self-determination to cover cases of voluntary euthanasia would not, therefore, amount to a dramatic shift in legal policy. No novel legal values or principles need to be invoked. Indeed, the fact that suicide and attempted suicide are no longer criminal offences in many jurisdictions indicates that the central importance of individual self-determination in a closely analogous setting has been accepted. The fact that assisted suicide and voluntary euthanasia have not yet been widely decriminalised is probably best explained along the lines that have frequently been offered for excluding consent of the victim as a justification for an act of killing, namely the difficulties thought to exist in establishing the genuineness of the consent. The establishment of suitable procedures for giving consent to assisted suicide and voluntary euthanasia would seem to be no harder than establishing procedures for competently refusing burdensome or otherwise unwanted medical treatment. The latter has already been accomplished in many jurisdictions, so the former should be capable of establishment as well.

Suppose that the moral case for legalising voluntary euthanasia does come to be judged as stronger than the case against (as the drift of this article would imply), and voluntary euthanasia is made legally permissible. Should doctors take part in the practice? Should only doctors perform voluntary euthanasia? The proper administration of medical care is not at odds with an understanding of medical care that both promotes patients' welfare interests and respects their self-determination. It is these twin values which should guide medical care, not a commitment to preserving life at all costs, or preserving life without regard to whether patients want their lives prolonged when they judge that life is no longer of benefit or value to themselves. Many doctors in The Netherlands and, to judge from available survey evidence, in other Western countries as well, see the practice of (voluntary) euthanasia as not only compatible with their professional commitments but also with their conception of the best medical care for the dying. That being so, they should not be prohibited by law from lending their professional assistance to those competent, terminally ill persons for whom no cure is possible and who wish for an easy death. From: Voluntary Euthanasia

As with just about ever other aspect of modern life, medicine seems to be bound to detach itself from the morals underpinnings that date back to the time of Hippocrates, to wit:
I swear by Apollo the physician, by Æsculapius, Hygeia, and Panacea, and I take to witness all the gods, all the goddesses, to keep according to my ability and my judgement, the following Oath.

"To consider dear to me as my parents him who taught me this art; to live in common with him and if necessary to share my goods with him; To look upon his children as my own brothers, to teach them this art if they so desire without fee or written promise; to impart to my sons and the sons of the master who taught me and the disciples who have enrolled themselves and have agreed to the rules of the profession, but to these alone the precepts and the instruction.

I will prescribe regimens for the good of my patients according to my ability and my judgment and never do harm to anyone.

To please no one will I prescribe a deadly drug nor give advice which may cause his death.

Nor will I give a woman a pessary to procure abortion.

But I will preserve the purity of my life and my art.

I will not cut for stone, even for patients in whom the disease is manifest; I will leave this operation to be performed by practitioners, specialists in this art.

In every house where I come I will enter only for the good of my patients, keeping myself far from all intentional ill-doing and all seduction and especially from the pleasures of love with women or with men, be they free or slaves.

All that may come to my knowledge in the exercise of my profession or in daily commerce with men, which ought not to be spread abroad, I will keep secret and will never reveal.

If I keep this oath faithfully, may I enjoy my life and practice my art, respected by all men and in all times; but if I swerve from it or violate it, may the reverse be my lot." From: Hippocratic Oath

Apparently the slippery slope starts with the legalization of abortion and then continues to Euthanasia. I suppose one's attitude with regard to the morality of either euthanasia or abortion depends on whether certain truths are truly "self-evident"!
1.18.2006 1:36pm
Houston Lawyer:
Justin, from the euthanasia.com website (clearly not an unbiased source)

In an effort to determine the frequency of assisted suicide and euthanasia, two national studies were undertaken. To obtain the most complete and accurate information, physicians were granted both immunity and anonymity related to their responses. The first study released by the Dutch government on September 10, 1991, found that physician-induced deaths accounted for more than 9.1 percent of annual deaths. Of those deaths, 2,300 were from requested euthanasia, 400 were assisted suicide and 1,040 (an average of approximately 3 per day) died from euthanasia which was administered without the patients’ knowledge or consent.(The study is popularly known as the Remmelink Report.) Similar results were found in a follow up study five years later.

In addition, the 1990 study also determined that 50 percent of Dutch physicians suggested euthanasia to patients.
1.18.2006 1:41pm
jgshapiro (mail):
Neal:

Congress's power to provide universal healthcare is in the commerce clause. As anti-UHC people never get tired of pointng out, healthcare services represent roughly 1/6 of the U.S. economy. Much of it is interstate.

Also, Congress has the power to tax and to spend, and may use those powers to create entitlement programs. You don't have to use the entitlement if you don't want to, but you can if you meed the conditions.

Moreover, if Congress does not have power to provide UHC, it didn't have power to legislate Medicare or Medicaid or the recent prescription drug bill. Or Social Security. That would be a radical (and absurd) conclusion to draw 40 years after the Great Society and 70 years after the New Deal.
1.18.2006 1:51pm
Mylar Thompson (mail):

Had he won in Raich, I'm curious what Thomas' opinion here would have looked like. I'm not sure the outcome would be different, but I'm curious.



I think THAT is Thomas' point. He's saying, "How could you disagree with me in Raich and then pretend like your illogical decision in Raich lets you reach the result that my analysis (which you rejected) obtains?" His problem isn't the outcome, but that the majority is ignoring its own recently-created precedent.
1.18.2006 1:55pm
Justin (mail):
Houston, the only evidence you cite in favor of your proposition is that "1,040 (an average of approximately 3 per day) died from euthanasia which was administered without the patients’ knowledge or consent." I'd like to know how the study that you did not link to defines "administered without the patients' knowledge or consent." If what we're talking about here (as I suspect) are In re Quinn/Schiavo issues, then I do not think your position is supported by the facts. You've asserted not that the euthenasia only kills fully capacitated and conscious individuals, but that it kills people against what their desires would actually be, for immoral purposes. I'm still waiting for evidence that this is a significant risk. From a member of the party that supposedly does not trust the Government to make decisions for individual families, I'm obviously not going to take your word for it that families generally murder their relatives for pecuniary gain.
1.18.2006 2:02pm
Justin (mail):
Neal, can you please limit your cuts and pastes and use links when appropriate? The length of your posts make it difficult to read the thread.
1.18.2006 2:04pm
Bob from Ohio (mail):
Ian: Where is judical review over actions of the Executive or Congress found in the text of the Constitution? What exact words?
1.18.2006 2:06pm
jgshapiro (mail):
KMAJ:

Your list of horribles is, frankly, ridiculous. There may be reasons not to adopt UHC, such as waiting lists, or the effect on drug prices (and research) from one massive buyer of all healthcare, but not for the reasons you list.

First, you decline money going into the insurance industry, which loses jobs, and puts people on unemployment.

A loss of jobs in the insurance industry is not a bad thing if it leads to a more fair and/or efficient health care system. Moreover, some of those jobs would simply move to the public sector. We should not keep the insurance industry around in its present form simply for its job-providing potential, if those jobs exist for no good reason.

You increase the cost of operating Medicare which will require an increase in taxes, you increase taxes, you decrease profitability of all businesses, which leads to more job losses, more unemployment and a need for more taxes to pay for those unemployment benefits.

UHC would increase the cost of medicare (and therefore would increase taxes to fund it), but UHC would *decrease* the cost of premiums currently directed toward insurance companies. Who cares whether the money you pay as a healthcare consumer (or as a business) is in the form of a tax or a premium? The net effect is the same: you have less of your paycheck (or your revenue) to spend and you get some bundle of services for it. The question is how much money a healthcare consumer (or business) is paying and what they are getting for it; not what label ('tax' or 'premium') you put on that payment, or to whom it is directed.

An increase in taxes leads to people having less of their own money to spend, which leads to a decrease in consumer consumption, which leads to decreased sales and profits and more unemployment.

In fact, UHC would *increase* what most people would have of their own money to spend, or at least would keep it the same (and produce greater benefits for the price because of economies of scale). If you spend less and get the same amount, or spend the same and get more, then this is a good deal. If you spend less and get more, then this is a great deal.

As Noah points out above, much of the cost of insurance goes toward administration, i.e., deciding whether or not something is covered, supervising physicians and reviewing their bills, and disputing claims that are not covered. With a single-payer system, many of these costs are eliminated. (Example: The government would not care about whether something is a pre-existing condition.) Therefore, more of the money that is paid into the system would go toward actual healthcare, rather than toward administration.

Since there is more money in the pot as a result of lower admin costs, patients get better treatment because more things can be covered and/or doctors can afford to spend longer with each patient; doctors and nurses can be paid more from the same pot (which would attract and retain better people); and all for less money.

The only losers are the insurance companies. But they would not neccessarly go out of business. A person or business could still insure for non-covered treatments if they wanted to and could afford it. Adopting UHC does not preclude all private insurance. It just provides one option to everyone that they can take or leave at their own discretion.

The vicious cycle created by what you espouse is a recipe for economic disaster, just look at the economies in Europe, and creating a socialist cradle to grave nanny state. It all sounds good, wouldn't it be nice to provide relatively free healthcare to all the people ?

Virtually every country in the world (not just Europe) has some version of UHC. Are they *all* socialist? Are we really the only capitalist country on the planet? Even if that were true (which it certainly is not), that would not necessarily argue against UHC. We have long since abandoned the pure capitalism of the 1920s and before. Do you oppose all entitlements, including social security and medicare (as it exists now)?

Ultimately, UHC, with all its problems, is probably the best choice. It is cheaper and more efficient, and provides a larger bundle of services to almost everyone. The government has economies of scale in this field that even the largest HMO can only dream about. And our failure to adopt UHC makes it cheaper for businesses to hire foreigners because *their* healthcare costs are amortized across society, rather than paid for by each business.

For someone so concerned about unemployment, it is strange to me that you don't see the connection between the increasing oursourcing by U.S. businesses and our lack of national health insurance. Why would I hire someone in Los Angeles and have to pay for their healthcare, when I can hire someone in New Delhi and let the Indians pay for it?
1.18.2006 2:07pm
NaG (mail):
Justin, what do you make of this language of the CSA: "§ 821. Rules and regulations. The Attorney General is authorized to promulgate rules and regulations and to charge reasonable fees relating to the registration and control of the manufacture, distribution, and dispensing of controlled substances and to the registration and control of regulated persons and of regulated transactions."

Seems to me that this gives the AG power to determine how Schedule II drugs may be distributed and dispensed to patients, within the "legitimate medical purposes" directive provided by Congress for such drugs. The Supreme Court majority basically decided that "control" doesn't mean "stop," but this makes little sense. If there was a shortage, say, of a needed Schedule II drug, and the AG issued a ruling that use of that Schedule II drug should thereby be confined to those patients of highest need, that same ruling would necessarily be telling doctors to STOP issuing that drug to lower-need patients. How, exactly, is the AG supposed to have power to "control" the distribution of a drug if the AG has no ability to prevent any distribution whatsoever?
1.18.2006 2:15pm
Neal Lang (mail):
The Attorney General's power to "promolgate rules" is boilerplate against a whole range of criminal statutes and has to be read in the tradition it has always has been - to create guidelines for enforcement and discretionary use of its police power.

If the Congress did not want the AG to determine, with regards to those licensed by him to distribute narcotics under the act, why was the he given the "authority" to determine what was "in the public interest" with regards to such licensing? The CSA plainly states this.
It cannot use its power to criminalize behavior that Congress has not sought to criminalize, nor place the Attorney General in a supervisorial role of the state medical boards, nor to displace the legitimate and Congressionally granted role of the FDA.

Based on the plain text of the law, Congress intrended to criminalize behavior that the AG determine to be "not in the public interest, with regards to dispensing Controlled Substances.
As Kennedy said, we do not expect Congress to place elephants (or nuclear bombs) in mouseholes.

Obviously Justice Kennedy was relying on the Law of the Netherlands and not the plain language of the Statute passed by Congress in determining to what authority the AG had.

BTW, if Congress believed the AG overstepped his CSA authority with regards the 2001 regulations he created concerning the use of "Controlled Substances" for purposes they clearly had never been approved for - i.e. the death of someone without a Court mandated "death warrant" - one would assumed that Congress itself would have rectified the situation. Obviously, Congress must have approved of the authority exercised by the AG in this matter, as they let stand said regulations for 4 years without action on their part.

There is absolutely no evidence that Congress did not intend the sanction the use of "Controlled Substances" as method committing homocide.
1.18.2006 2:19pm
Neal Lang (mail):
Also, Congress has the power to tax and to spend, and may use those powers to create entitlement programs.

And Congress' delegated authority "to create entitlement programs" may be found in what particular Article, Section and Clause of the Constitution?
1.18.2006 2:30pm
Justin (mail):
To NaG: Please read my response to Neal Lang above.

To Neal Lang: I find that my original response sufficiently addresses your replies.

I apologize in advance, but work will probably prevent me from replying to this thread for the rest of the day.
1.18.2006 2:34pm
Houston Lawyer:
To find a summary of the Remmelink Report, go to

http://www.internationaltaskforce.org/fctholl.htm

I can't make the link work otherwise.

"2,300 people died as the result of doctors killing them upon request (active, voluntary euthanasia)

400 people died as a result of doctors providing them with the means to kill themselves (physician-assisted suicide)

1,040 people (an average of 3 per day) died from involuntary euthanasia, meaning that doctors actively killed these patients without the patients' knowledge or consent

14% of these patients were fully competent

72% had never given any indication that they would want their lives terminated

In 8% of the cases, doctors performed involuntary euthanasia despite the fact that they believed alternative options were still possible.

In addition, 8,100 patients died as a result of doctors deliberately giving them overdoses of pain medication, not for the primary purpose of controlling pain, but to hasten the patient's death. In 61% of these cases (4,941 patients), the intentional overdose was given without the patient's consent."

The latest update of this study showed euthanasia was slightly more frequently implemented in the group with highest social-economic status. Not strong evidence of killing for money, but some.
1.18.2006 2:45pm
Ian (www):
Where is judical review over actions of the Executive or Congress found in the text of the Constitution? What exact words?

Article III, Sec. 2.

"The judicial Power shall extend to all Cases . . . arising under this Constitution . . . ."
1.18.2006 2:51pm
NaG (mail):
Justin, I read your response to Neal, and it was wholly inadequate. First, you argue (without basis) that these sections were posted without the benefit of context. Well, what context is that? What other section of the CSA cordons the language granting the AG "control" over the "distribution" of Schedule II drugs, aside from Congress' mandate that Schedule II drugs be limited to "legitimate medical purposes?"

Next, you argue, "[DOJ] cannot use its power to criminalize behavior that Congress has not sought to criminalize, nor place the Attorney General in a supervisorial role of the state medical boards, nor to displace the legitimate and Congressionally granted role of the FDA." Sure, but the AG's action in this case was in harmony with all of these requirements. The AG sought to enforce Congress' mandate that only "legitimate medical purposes" be available for the use of the Schedule II drug, so therefore the AG was not criminalizing behavior that Congress did not seek to criminalize. Second, the Oregon law was not a product of the state medical boards. Third, if infringing upon state medical boards in any way was not allowed, then clearly the Supreme Court should have ruled that the CSA did not trump the medical marijuana law covered in Raich. Finally, the AG's act in no way infringed upon anything in the FDA's purview.

Again, where does it state in the CSA that the States have sole authority to determine what constitutes "legitimate medical purposes?" Please point me to the appropriate section of the Code. If the CSA does not so grant authority to the States, then please point me to the section of the Code that determines WHO has that authority other than the AG, in light of the powers already given by the CSA to the AG.
1.18.2006 3:01pm
Justin (mail):
Your new source is most certainly biased, and still does not explain the now 14% (145 or 146) that it says the patient was fully competent, or how it came up with those numbers (i.e., do they have a doctor on the record saying "She wouldn't do it voluntarily, so I waited till she was asleep, hahahahahahaha" and if so, is there a record of a criminal prosecution?)

I'll probably need some link to the actual citation, but I continue to believe your numbers are manufactured hysteria.
1.18.2006 3:04pm
Neal Lang (mail):
Is your argument that the Trail of Tears and the systematic genocide of the Native American population embodies (or is minimally not contrary) to the principles of Constitutional law? If not, what exactly is your point?

And the Supreme Court's delegated "authority" to render Acts of Congress, passed by the Legislative Branch and approved (signed) by the Executive Branch, "unconstitutional" may be found in exactly what Article, Section, and Clause of the ratified Constitution?

When it comes to "usurped power", obviously the Supremes take the prize. I believe that the point that was being made by President Andrew Jackson when he refused to "enforce" their ruling in Worcester v. Georgia (1832) by stating "John Marshall has made his decision, now let him enforce it." When taken in consideration with their decision in Cherokee Nation v. Georgia (1831) - the Supremes obviously must have had problems reading the "entrails of the owls" they used to come up these two diametrically opposed decisions within one year.

No wonder President Thomas Jefferson had opined that Judiciary was the "Despotic Branch" of the Federal Government.

BTW, President Jackson revenge on the Supreme Court was naming Roger Brooke Taney as Chief Justice. His contribution to American "jurisprudence" and the furtherence of "racial genocide" was the little gem known as "Dred Scott v. Sandford". During the Civil War, Chief Justice Taney found out how John Marshall must have felt, i.e., that the Federal Judiciary truly had limited authority, when the Writ Habeas corpus he executed for the "Copperhead", John Merryman, being held in Fort McHenry, was refused by the Fort's Commander, Gen. George Cadwalader, who alleged, among other things, that he was duly authorized by the President of the United States to suspend the writ of habeas corpus for the public safety. Taney's subsequent Writ Habeas corpus demanding the presence of General Cadwalader was also likewised ignored.
1.18.2006 3:26pm
Neal Lang (mail):
Moreover, if Congress does not have power to provide UHC, it didn't have power to legislate Medicare or Medicaid or the recent prescription drug bill. Or Social Security.

Exactly! Now you have the picture. Congress' "authority" to "tax and spend" are "limited" by Article I, Section 8, to wit:
[Section 8.] The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; --And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department
or Officer thereof.

Anything else is unconstitutional.
That would be a radical (and absurd) conclusion to draw 40 years after the Great Society and 70 years after the New Deal.

Which were only possible after FDR "stacked the court".
1.18.2006 3:36pm
Justin (mail):
Neal,

Please do not cite to my posts if you do not feel the need to rebut, respond to, or support the point I made. Doing so creates the false implication that my post meant something other than its (clear) meaning.
1.18.2006 3:48pm
Bob from Ohio (mail):
Artcle III, Section 2? The judicial power? That is it? The sole source for the power of the Supreme Court over co-equal branches?

I find this source somewhat thin. The writers of the Constitution were pretty good at granting powers specifically. See Article 2, Section 8 for instance. Yet, judicial review arises from these vague words.

I accept Marbury is a fait accompli. I also think it was made up in thin air by Marshall.
1.18.2006 3:49pm
Ian (www):
Neal,

So your argument is that the Constitution does not authorize judicial review (including Article III, Sec. 2), but that "unconstitutional" laws such as Social Security and Medicare should be struck down, and would have been unless FDR hadn't "stacked the court" with Justices who refused to engage in judicial review?

You didn't do very well in law school, did you?
1.18.2006 3:52pm
Houston Lawyer:
Some things are true whether you believe them or not. If we change the law such that some people have the right to die, we will soon start expanding that right. Many people who are in pain already feel that they are a burden to the living. It's hardly compassionate to tell them that they can freely snuff it anytime they want. At some point in time they will be obligated to kill themselves to put everyone else out of misery.
1.18.2006 4:08pm
JunkYardLawDog (mail):
jgshapiro

Ultimately, UHC, ......is cheaper and more efficient, and provides a larger bundle of services to almost everyone.


The above statement is patently false. Abundant examples in Canada and the UK abound. It always becomes government rationing based upon the extreme idiocy of the PC Political crowd. It is healthcare distributed with the compassion of the IRS and the efficiency and lack of waste of the average cost plus mega defense contract.

Your statement fails the most cursory examination, and as a result so does your entire UHC is the best choice argument.

Says the "Dog"
1.18.2006 4:51pm
Neal Lang (mail):
So your argument is that the Constitution does not authorize judicial review (including Article III, Sec. 2), but that "unconstitutional" laws such as Social Security and Medicare should be struck down, and would have been unless FDR hadn't "stacked the court" with Justices who refused to engage in judicial review?

Okay, I'll bite! Please cite the Clause in Article III, Section 2 that empowers the Judiciary Branch void law properly enacted by Congress and approved (signed) by the Executive.

Here I'll help:
Article III [Section 2.] The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; -- to all Cases affecting Ambassadors, other public Ministers and Consuls; -- to all Cases of admiralty and maritime Jurisdiction; -- to Controversies to which the United States shall be a Party; -- to Controversies between two or more States; -- between a State and Citizens of another State; -- between Citizens of different States; -- between Citizens of the same State claiming Lands
under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such
Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

All you need do is point out the Clause saying that the Judiciary shall have the "power" to overturn Laws passed by Congress and approved (signed) by the President. Perhaps Publius' thoughts on the "Power of the Judiciary" might help you, to wit:
Let us now review it in detail. It is, then, to extend:

First. To all cases in law and equity, arising under the Constitution and the laws of the United States. This corresponds with the two first classes of causes, which have been enumerated, as proper for the jurisdiction of the United States. It has been asked, what is meant by "cases arising under the Constitution," in contradiction from those "arising under the laws of the United States"? The difference has been already explained. All the restrictions upon the authority of the State legislatures furnish examples of it. They are not, for instance, to emit paper money; but the interdiction results from the Constitution, and will have no connection with any law of the United States. Should paper money, notwithstanding, be emited, the controversies concerning it would be cases arising under the Constitution and not the laws of the United States, in the ordinary signification of the terms. This may serve as a sample of the whole.

It has also been asked, what need of the word "equity What equitable causes can grow out of the Constitution and laws of the United States? There is hardly a subject of litigation between individuals, which may not involve those ingredients of fraud, accident, trust, or hardship, which would render the matter an object of equitable rather than of legal jurisdiction, as the distinction is known and established in several of the States. It is the peculiar province, for instance, of a court of equity to relieve against what are called hard bargains: these are contracts in which, though there may have been no direct fraud or deceit, sufficient to invalidate them in a court of law, yet there may have been some undue and unconscionable advantage taken of the necessities or misfortunes of one of the parties, which a court of equity would not tolerate. In such cases, where foreigners were concerned on either side, it would be impossible for the federal judicatories to do justice without an equitable as well as a legal jurisdiction. Agreements to convey lands claimed under the grants of different States, may afford another example of the necessity of an equitable jurisdiction in the federal courts. This reasoning may not be so palpable in those States where the formal and technical distinction between LAW and EQUITY is not maintained, as in this State, where it is exemplified by every day's practice.

The judiciary authority of the Union is to extend:

Second. To treaties made, or which shall be made, under the authority of the United States, and to all cases affecting ambassadors, other public ministers, and consuls. These belong to the fourth class of the enumerated cases, as they have an evident connection with the preservation of the national peace.

Third. To cases of admiralty and maritime jurisdiction. These form, altogether, the fifth of the enumerated classes of causes proper for the cognizance of the national courts.

Fourth. To controversies to which the United States shall be a party. These constitute the third of those classes.

Fifth. To controversies between two or more States; between a State and citizens of another State; between citizens of different States. These belong to the fourth of those classes, and partake, in some measure, of the nature of the last.

Sixth. To cases between the citizens of the same State, claiming lands under grants of different States. These fall within the last class, and are the only instances in which the proposed Constitution directly contemplates the cognizance of disputes between the citizens of the same State.

Seventh. To cases between a State and the citizens thereof, and foreign States, citizens, or subjects. These have been already explained to belong to the fourth of the enumerated classes, and have been shown to be, in a peculiar manner, the proper subjects of the national judicature.

From this review of the particular powers of the federal judiciary, as marked out in the Constitution, it appears that they are all conformable to the principles which ought to have governed the structure of that department, and which were necessary to the perfection of the system. If some partial inconviences should appear to be connected with the incorporation of any of them into the plan, it ought to be recollected that the national legislature will have ample authority to make such exceptions, and to prescribe such regulations as will be calculated to obviate or remove these inconveniences. The possibility of particular mischiefs can never be viewed, by a well informed mind, as a solid objection to a general principle, which is calculated to avoid general mischiefs and to obtain general advantages. From: The Federalist No. 80 - The Powers of the Judiciary - by Alexander Hamilton

I fail to see where Publius opines that the Federal Judiciary is empowered by the Constitution to "stike down" any law passed by Congress and signed by the President.

When you cosider that the Congress has the "power" to stipulate that the Supremes' "appellate" authority is subject to any "Exceptions, and under such Regulations as Congress shall make", then it would appear that any "Judicial mischiefs" are really Constitutionally subject to Legislative "veto"!
1.18.2006 7:43pm
Neal Lang (mail):
You didn't do very well in law school, did you?

You are assuming I attended law school. Actually, I am not a lawyer - instead I make an honest living! But if you think that Federal Judiciary is Constitutionally "empowered" to "strike down" any law passed by Congress and signed by the President, or that Congress is Constitutionally empowered to create entitlement programs, you obviously didn't do very well in reading and understanding English, did you?
1.18.2006 7:58pm
Neal Lang (mail):
Please do not cite to my posts if you do not feel the need to rebut, respond to, or support the point I made. Doing so creates the false implication that my post meant something other than its (clear) meaning.

If the "meaning" of your posts were all that "clear" then they wouldn't create a false impression, now, would they?
1.18.2006 8:02pm
Neal Lang (mail):
To Neal Lang: I find that my original response sufficiently addresses your replies.

I suppose you are enitled to your opinion.
1.18.2006 8:08pm
Ian (www):
Actually, I am not a lawyer

Suddenly everything you have said makes sense.

My first year in law school, I was assigned a very elementary legal writing assignment which involved reading a handful of cases, and drafting a summary of the legal rule which emerged from them. One of the cases involved an "infant" plaintiff who was injured while dangling her legs off of a ski lift. The court awarded damages to this plaintiff, and I thought this was a miscarrage of justice.

"Infants," I believed, had very little business on a ski lift, much less with their legs dangling off the edge of the seat. Where were the "infant's" parents? Shouldn't they be held responsible for bringing an "infant" onto a potentially dangerous high rise ski lift?

I felt like an idiot when the professor explained to me that, in this legal context, the word "infant" could refer to any child below the age of majority. In this particular case, the "infant" plaintiff was 14 years old.

My point in telling this story is that certain words, such as "the judicial power" or "cases and controversies" or "law and equity" have special meanings in legal contexts, and that these meanings are often very expansive and complex. It is no more appropriate to read the Constitution without attention to these special legal meanings than it is to confuse babies with teenagers.

I'll also note that you still have not answered my question from above. You argue with one voice that judicial review is unconstitutional (an impossible legal position), and then you turn around and argue with another that the New Deal is unconstitutional and should be struck down through judicial review (an exceptionally weak legal position, but stronger than your previous point). One does not have to be a lawyer to recognize that judicial review is either unconstitutional, or it isn't, so you will need to pick one or the other.

Which one is it, is judicial review unconstitutional, or should laws which you don't like be struck down through judicial review?
1.18.2006 8:26pm
Neal Lang (mail):
Or is Justice Kennedy's opinion even narrower than it looks, as in it does not preclude DOJ from interpreting the phrase, but merely held that it did not do so adequately in this instance?

Of course, Associate Justice Kennedy is making a "moral" and not "judicial" determination that AG did not adequately interpret what "legitimate medical practices" are. Perhaps his decision was based more on the decisions of the Dutch Supreme Court, than on the Constition and Laws of the United States, as is his Constitutional mandate, to wit:
In 1984, a case reached the Dutch Supreme Court. A physician who had assisted in the suicide of a ninety-five-year-old woman had been acquitted, but the decision for acquittal was reversed by an appellate court. The Supreme Court overturned the conviction, arguing that the appellate court had failed to consider whether the physician was placed in an intolerable position because of what it called a "conflict of duties." Was the patient's suffering such that the physician was forced to act in a situation "beyond [his or her] control?" The court referred the case back to an appellate court in The Hague with the instruction to consider the case with one dominant consideration from an objective medical perspective: could the euthanasia practiced by the physician be regarded as an action justified in a situation of medical necessity?7

Notes:
7. C. Gomez, Regulating Death: Euthanasia and the Case of the Netherlands (New York: Free Press, 1991). From: Article Of The Month
1.18.2006 8:36pm
NaG (mail):
On the issue of judicial review, Neal, the basic deal is that Chief Justice John Marshall examined the powers granted to the Supreme Court by the Constitution and concluded that the language there "emphatically" supported such authority in Marbury v. Madison. Some people at the time definitely didn't like his opinion, but over time it has been accepted by all as The Way It Is. It's honestly not a fight worth getting into, at least not as long as you have more immediate (and important) constitutional issues to deal with first.

Now, as for Justice Kennedy, while he has scooped into foreign law most impermissively in the past, I don't believe that this latest decision deserves to be so tarred. I think it is a grave mistake to view the decision as having been a moral one -- as if the majority of the Court had decided that euthanasia is A-OK and moved to defend it. The majority opinion clearly indicated that the federal government did have the power to stop this state practice, but it ruled that the federal government did so in this case in an impermissible fashion. Now, as I've been pointing out, this creates a bit of a quandry in that we seem now to have general language that nobody appears fit to give definition to. But if Congress decided tomorrow to pass a law banning the use of all drugs covered under the CSA to kill patients, the Court would uphold it. Or, at least, I think a majority would. Including Justice Kennedy.
1.18.2006 9:30pm
Donald Clarke (mail):
jgshapiro

Ultimately, UHC, ......is cheaper and more efficient, and provides a larger bundle of services to almost everyone.


The above statement is patently false. Abundant examples in Canada and the UK abound. It always becomes government rationing based upon the extreme idiocy of the PC Political crowd. It is healthcare distributed with the compassion of the IRS and the efficiency and lack of waste of the average cost plus mega defense contract.

Your statement fails the most cursory examination, and as a result so does your entire UHC is the best choice argument.

Says the "Dog"


Actually, Dog, the numbers suggest that you are wrong. According to the OECD, every other industrialized country pays less per capita for its health care and achieves better outcomes. For example, according to the OECD, the US spent app $5,600 per capita on health care in 2003. The next highest spender was Norway, at app $3,800.

http://www.oecd.org/dataoecd/60/27/35529803.xls

Despite spending almost 50% more per capita, the US falls in the lower half for measures of health care effectiveness. We do not have the longest life expectancy, or the lowest infant mortality figures. We may have short waiting lines, but how well are they doing at keeping us healthy?

Basically the US healthcare system is nice if you are well off or have good insurance. If you don't meet those criteria, pray you do not get seriously ill.

As for how well government health care can do, the New England Journal of Medicine (May 29 2003) published a study that showed the VA outperforming fee for service Medicare by 12 of 13 measures of effectiveness.

For a related view explaining why the VA can do so well, see Longman in Washington Monthly Jan/Feb 2005.

As for personal experience, I have spent time in a VA hospital and in a private hospital within the last two years. The VA was at least as good.


Donald Clarke
1.18.2006 11:14pm
JunkYardLawDog (mail):
Donal, I'm glad you had good experiences at the VA. Veterans deserve that. Comparing one government run program to another doesn't say anything about how a private sector market based initiative would do. Since we don't have a private sector market based system here in our own country (third party payer, many or single payer, with over-regulation isn't exactly a real market approach).

The studies you cite provide incorrect comparisons and guides for your thinking on this issue for many reasons. Those reasons would include, but not be limited to:

1. Differences in population homogeniety, ethnicity, and percentage of recent immigrants.

2. The studies are biased in favor of government rationed healthcare because the COSTS of delays, poor care, waiting lines of months and years for some procedures, etc. are NOT taken into account on the government rationed healthcare side but the costs to eliminate these severe consumer service issues in a more free system like ours ARE included.

3. The reports are prepared by socialists (often anti-american) with a predetermined leaning to constructing a system of measurement and evaluation that will produce the result they wish to obtain.

The fact that people from Canada, UK, and all over the world come here for healthcare because their health is more important than pretending that their rationed and failing system back home is actually working proves the reality of the situation and the falsehood of the reports you cite.

The plight of poor in need of healthcare in this country is not nearly as bad as you state. There are free and discount clinics available in every major city. There are free county hospitals or reduced rate county hospitals in every county of any size. All hospitals perform emergency care without regard to insurance or payment prospects.

Neither of my parents graduated from high school. I've been poor in my life; I've lived with, along side of and am related to many poor people. Their healthcare needs get taken care of much better than you believe.

I've worked hard in my life to achieve certain goals and obtain some amount of material gains. Very hard. Harder than most can manage. Harder than I could manage today. There are many poor people (most of them actually) who are poor because they choose to be poor. They choose to stay poor through poor personal life decisions, a failure to try to adequately provide for their children, poor spending and purchase decisions, constant negative thinking, and a decided lack of industriousness often combined with alcohol and drug abuse.

I'm sympathetic with anyone in need through no fault of their own. I'm a lot less sympathetic towards those whose problems are the result of years of deliberate, intentional, and very poor decisions as described above. I'm definitely against ruining the very high quality of healthcare that 80% of the population receives in order to provide a marginal amount of additional healthcare on those who choose not to provide for themselves.

Says the "Dog"
1.19.2006 1:39am
Noah Klein (mail):
JunkYardLawDog:

You are criticizing something without even reading. Above you say, you have not even read the New England Journal of Medicine report, but here you criticize it as made by socialists. I don't know about you, but I never heard that the New England Journal of Medicine or that the Federal government are socialists.
Then, you say that Medicare and other government Health care programs having horrible things like waiting lines and delays and so on and then in the next paragraph say that it is not so bad. Your whole argument is full of inconsistency and you don't even give any evidence to back up your claims. Your evidence is that Canadians and others come to America and you don't have objective studies or any studies to prove that. I don't doubt it, in fact I'm pretty sure it's true, but when I make an argument that requires facts to back it up I try to provide the facts. As to foreigners coming here for healthcare, that demonstrates that our system is market-based and thus allows for innovation and so on. This you dispute in your first paragraph, because of regulations and competing government entities. But the same thing occurs in radio and television, are you say that those are not really markets? I think you would have a hard time demonstrating it. How would having a government entitlement participate in that market, as it has for about forty years, but now with an expanded client base, eliminate the ability for innovation and so on?
Remember, I began this detour, because you made a broad statement without evidence and I countered you. Now, once again, you make a broad, inconsistent argument without evidence and you expect that to be a retort that will convince someone or at least defeat the arguments of your opponenets. I don't know what law school you went to, but I think that any jury would have a hard time believing you if you try cases in this fashion.

Noah
1.19.2006 3:03am
jgshapiro (mail):
JYLD:

It always becomes government rationing based upon the extreme idiocy of the PC Political crowd.

Unless you have an unlimited amount to spend, you are alays going to ration healthcare. There is no other choice when you have a limited supply (of doctors/nurses/hospitals and cash to pay for them) and an almost unlimited demand for treatment, particularly from the elderly. We do it now with medicare and medicaid. The question is whether you do it intelligently or not.

Right now, we spend a ridiculous amount of healthcare dollars on administration. How is that preferable to government rationing? At least you get a say in the latter through the people who run it. Most people cannot afford to switch healthcare providers: they are stuck with the one provided by their employer (if at all) or they have a pre-existing condition that precludes coverage if they go somewhere else.

It is healthcare distributed with the compassion of the IRS and the efficiency and lack of waste of the average cost plus mega defense contract.

This is laughable. I have never heard anyone before describe an HMO as 'compassionate.' HMO's exist to make money and they do so ruthlessly. The percentage of money spent on admin rebuts any claim that HMO-run heathcare is efficient according to any reasonable interpretation of that word.
1.19.2006 11:06am
JunkYardLawDog (mail):
jgshapiro,

Either you didn't understand what I wrote or what I wrote wasn't very understandable. I'm beginning to think it was the latter given Noah's comments.

I've previously stated that healthcare like all goods and services is rationed. All economies answer the basic questions of What should be produced, by whom, and for whom. So I don't disagree that healthcare is rationed in this sense or the word. In this sense of the word bread is rationed, steaks are rationed, legal services are rationed, education is rationed, moving services are rationed, cars are rationed, etc.

I also agree with you that the question is what is the best most intelligent way to do the rationing? My answer is that the most intelligent way to do rationing of any good and service is through market forces. Free markets are almost always the most efficient way to answer the basic questions of what should be produced, by whom, for whom, and at what price, etc.

I'm not saying there isn't room for some tweaking here and there around the edges of the free market production of healthcare, bread, legal services, tin cans, etc., just that experience in this country and the world as a whole show that free markets are the best engine for the production AND distribution of goods and services.

When I referred to government rationed healthcare I was not speaking about rationed healthcare in the generic economic sense above. I was speaking of the experiences of various communist countries and various socialist/democratic sort of countries with one form or another of government rationing. These experiences show that government control over markets almost invariably results in scarcity of production, increased prices, lower quality of the little that is available, etc. etc.

So in government rationed healthcare I was speaking about the EXTRA and UNUSUAL levels of rationing that result when government controls markets. Government's wanting to be all things to all people so they can stay in power (at least the elected ones) always reach a point where they can't suck any more blood from the taxpayers, and yet because of the government control over non-free markets prices skyrocket as a result of levels of supply going down. Not being able to raise prices infinitely government healthcare in other countries has always solved this delima by further rationing supply of healthcare well beyond that which takes place in free markets. That's why government rationed healthcare results in long waiting lines for necessary procedures, 6 months and 2 year waiting lines in Canada for some procedures.

Government insanity when controlling healthcare markets results in the government making it criminal to build a new hospital or attempt to purchase an unapproved MRI machine or other diagnostic tool, etc. etc. These are all real things that happen under Canadian and UK government healthcare.

I agree HMO's aren't very compassionate at times. Especially at the time of last illnesses in a family. I though my previous posts made that quite clear. Maybe you didn't see them. I don't think the IRS is all that compassionate. So when I said government healthcare would be provided with all the compassion of the IRS, I was being a bit satirical. When I said government healthcare would be run with the efficiency and lack of waste of the average cost plus mega defense contract, again I was being satirical. I was attempting to draw an analogy between $5,000 hammers in defense contracts and $5,000 sheets and bed pans in the government run healthcare context. In other words I was saying that administrative costs of a government healthcare plan, just like the adiminstrative costs in everything else the government does will be grossly more wasteful than the private sector. I don't need a study to know this. Anyone paying attention to government programs and government efficiency, from welfare to FEMA, to defense, to whatever already knows this to be true. Why someone would think it would be true for everything the government does except healthcare but not for healthcare is an anomoly not supported by real life experience and reasonable expectation.

We have the best healthcare in the world for about 80% of the population. Solutions for finding better healthcare for the other 20% which by known examples in Canada and the UK will result in ruining completely the healthcare of the 80% for marginal improvement of the 20% does NOT sound like an intelligent system of rationing to me.

Says the "Dog"
1.19.2006 6:46pm
Noah Klein (mail):
JYLD:

"In other words I was saying that administrative costs of a government healthcare plan, just like the adiminstrative costs in everything else the government does will be grossly more wasteful than the private sector. I don't need a study to know this."

This statement though demosntrates that you are loyal to your viewpoint beyond the facts. The facts say something different than what you say, but you're sticking to them no matter what. Perhaps you should look at the studies of government overhead costs and see what you think is right. I actually had the same opinion that you did. When I first heard that government was more efficient than private industry, I was suprised to say the least. I didn't believe it, but when I checked on the facts, it turned out to be true. Why don't you do the same? You might suprised by what you see and maybe you'll think of a way to help that 20% without hurting the other 80%.

Noah
1.19.2006 6:57pm
JunkYardLawDog (mail):
Noah, please see my post to jpshapiro which answers many of your questions.

When it comes to policy matters the various medical societies and the AMA, etc. are pretty far left wing. Such groups conduct studies riddled with false assumptions about deaths by handguns, then go around on talk shows touting their dubious research. I on the other hand would be much more persuaded if they spent their time trying to figure out how NOT to kill 100,000 patients through theirs and their hospitals negligence. They worry about what boils down to around 5000 to 10000 firearm deaths per year and don't seem concerned about the 100,000 a year they kill with their own negligence.

Regarding the studies I stated I hadn't read them, but that doesn't mean its impossible to analyze certain basic problems apparent just from the basic premise of the study. I laid out those problems in my previous post regarding comparing healthcare costs across cultural and population divides have problems because of differences in homogenity, ethnicity, and relative percentage mix of new immigrants. This is because different ethnicities, population ages, and migratory populations have very different demands on healthcare services and healthcare administrative costs. Further, you don't have to read the study to know that a study of admin expenses in a country where healthcare production is rationed and limited to the point of 6 month and 2 year waiting periods for many things and a general lowering of quality of services to figure out that the government is saving money on various expenses by pushing the costs of solving these problems of production/supply off onto the consumer whom because it is NOT a free market for healthcare can not choose a different provider. When you take costs from a study of such a country and then compare it to a country like ours where the costs of providing care at a higher quality and the costs of providing care timely and the costs of increasing the supply of available healthcare are NOT avoided, then to that extent the comparison is going to be of apples to oranges.

In other words in government run healthcare countries there is always an amount of cost shifting where costs are shifted off the government and onto the consumer. The consumer pays these costs not with money, but in wasted time, lower quality care, waiting lists for what should be routine matters, and even waiting lists for matters which the waiting might reduce the lifespan of the patient.

What I apparently said unclearly in my first post was that we do have free market for healthcare in this country compared to non-free markets like UK and Canada, but I was also trying to say that our supply and pricing of healthcare in this country would be even better than it is now, if the healthcare industry wasn't over-regulated as regards matters NOT related to patient safety. Just like in the airline industry of the past, the airlines were regulated too heavily for business matters totally outside the realm of safety. Government's legitimate interest was to regulate safety, but prior to Reagan they also regulated price and availability. After much, but not all of the price and availability regulation was eliminated we saw a huge and rapid decrease in fares, which resulted in a travel boom for the average Joe Sixpack, because now even average Joe could afford to fly on his own nickle. The same would be true in healthcare where regulations by state governments and federal government is still too excessive in areas not concerned at all with patient safety.

Ideas of government regulation include such er.. original economic concepts... as limiting the supply and quantity of production of available healthcare in order to keep prices lower????? Say what??? Less supply equals lower prices??? I don't think so.

I rarely argue cases in front juries these days, but when I do, I strike all the Noah's (smile), hence I don't need to persuade them.

Says the "Dog"
1.19.2006 7:12pm
Neal Lang (mail):
On the issue of judicial review, Neal, the basic deal is that Chief Justice John Marshall examined the powers granted to the Supreme Court by the Constitution and concluded that the language there "emphatically" supported such authority in Marbury v. Madison. Some people at the time definitely didn't like his opinion, but over time it has been accepted by all as The Way It Is. It's honestly not a fight worth getting into, at least not as long as you have more immediate (and important) constitutional issues to deal with first.

Let's see Chief Justice John Marshall opines that he and his 8 unelected, life term colleagues have the finally say as to the "real meaning" of the Constitution. Well, I guess that sort of sews it right up, now, doesn't it? Why would anyone think that the leader of the Judicial Branch might review the Constitution and come to the conclusion that either of the other Branches, the ones that are elected by "the People", might have the "final word"? Do you suggest that Justice Marshall had no personal interest in finding that he and the other the Platonic Guardians were the final word on the penubra of things so carefully hidden in the Constitution by the Framers? Imagine that!

As for being "accepted by all as The Way It Is", do you mean like Chief Justice Roger Brooke Taney's opinion in Dred Scott, that African blacks were not human, and thus not to be included along with all the "other" men who were "created equal, (or) that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness"? I can't imagine why anyone would object to such great thinkers as Taney being the last word on what the Constitution truly means!

Ah! "More immediate (and important) constitutional issues to deal with first!" You mean like locating the penumbra, and where the Framers really hid the the all powerful "right of privacy"! Yeah, I can see why we rely on the Supremes to read the "Entails of the Owl". After all, it takes someone with not too much common sense and a lot of imagination to come up with a decision in Roe! I believe the "bodycount" on that one has reached nearly 50 million (surpassing Hitler) and is still climbing (catching up to Mao and Stalin). Apparently the Warren Court thought unborn human beings were just like Taney's African blacks!
Now, as for Justice Kennedy, while he has scooped into foreign law most impermissively in the past, I don't believe that this latest decision deserves to be so tarred. I think it is a grave mistake to view the decision as having been a moral one -- as if the majority of the Court had decided that euthanasia is A-OK and moved to defend it.

Really! I think you are naive. I believe the same majority all found that a woman has a "Consitutional Right to murder their unborn baby that is based on a "right of privacy" that is in the Constitution but cannot be seen, except by sophisticated internationalist observers like Kennedy. The reliance on foreign precedence to determine the Constituionality of US laws must be in that Constitutional "penumbra", as well.
The majority opinion clearly indicated that the federal government did have the power to stop this state practice, but it ruled that the federal government did so in this case in an impermissible fashion.

You mean that the AG, who is specifically allowed to make the necessary regulations to make the "Controlled Substances Act" work, could not create a regulations that a "controlled substance" could not be use for a purpose that was an accepted medical use. Damn! Why even call them "controlled substances" if you cannot determine the extent of the uses for which they are being "controlled"?
Now, as I've been pointing out, this creates a bit of a quandry in that we seem now to have general language that nobody appears fit to give definition to. But if Congress decided tomorrow to pass a law banning the use of all drugs covered under the CSA to kill patients, the Court would uphold it. Or, at least, I think a majority would. Including Justice Kennedy.

Kennedy's position is that Congress didn't give the AG the latitude to declare what a "controlled substance" can and cannot be used for, when it passed CSA. Of course, the AG halted use of "controlled substances" as the mean of committing suicide nearly 5 years ago. Don't you think, if Congress truly felt that the "evil" Rev. Ashcroft overstepped the "authority" they granted him in this Act, they would recitified the situation (sometime over the 5 years) legislatively by clarifying the AG's "authority"? Or is that too much common sense for the majority of Supremes? I doubt if a majority of these Supremes would uphold a law curtailling a person "right to choose suicide". After all, said right is obviously part of the "general right of privacy" that these "Wise Man" discovered in the "penumbra" secreted into the Constituion by the Framers. I even think they made a movie about this secret "penumbra" called "National Treasure"! Oh, wait a minute, that was the secret "penumbra" in the Declaration of Indpendence and not the Constitution. Never mind!
1.19.2006 8:02pm
Neal Lang (mail):
Suddenly everything you have said makes sense.

Thank God for small miracles!
My point in telling this story is that certain words, such as "the judicial power" or "cases and controversies" or "law and equity" have special meanings in legal contexts, and that these meanings are often very expansive and complex. It is no more appropriate to read the Constitution without attention to these special legal meanings than it is to confuse babies with teenagers.

Ah! I see, words like "penubra", and an "understood general right of privacy", and "choice", which applies only the mother and never the unborn innocent child. I think I see you point. Is "special meaning" like "special education"? And when do you lawyers get your secret "decoder ring" that pemits you to see things in the Constitution that no else sees? Is in "law school" or after, when you are given the "secret handshake", and the "high and low signs"?

Do only the words applied to Judicial Branch have these secret "expansive and complex, special meanings", or do the words in the Constitution that apply to the other Branches also have these secret "expansive and complex special meanings", as well? Words like "Commander-in-Chief" or like "when in Cases of Rebellion or Invasion the public Safety may require it" - do these have the "special meanings", or are they just words?

BTW, is there any "special, expansive and complex" reason that members of the Federal Judiciary are "bound by Oath", to merely "to support this Constitution", while the President must take an Oath that states:
"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

Is it because the Framers, like the Democrats, trusted Judges more than they trusted Presidents, so they thought that the President needed to be bound a "stronger" oath?
1.19.2006 8:24pm
Neal Lang (mail):
Ultimately, UHC, ......is cheaper and more efficient, and provides a larger bundle of services to almost everyone.

Ultimately, I believe the Dutch found that "don't ask, don't tell euthanasia" was even cheaper still and a whole lot more efficient.
1.19.2006 8:30pm
Donald Clarke (mail):
Dog,

I see you are not convinced by the numbers.

Let me give you a few examples of how the free market in health care causes problems.

1. Say a treatement for for condition X costs $1,000, but reduces costs 10 years from now by $20,000. Will any of our current HMOs be interested in funding this treatment? No, because the average HMO keeps a customer for 7 years so the treatment is only benefiting their competitors.

A national healthcare system would be motivated to make this kind of investment because it would save money in the long run. A fragmented system of private providers has no such incentive.

2. It is well known that medical errors have caused many deaths over the years (the last estimate I saw was app 90K patients killed per year). The best suggested remedy is computerized medical records so that the physician's handwriting problem is avoided and expert systems can be used to doublecheck for correct prescriptions and to avoid fatal or damaging drug interactions.

Unfortunately, many US medical practioners are still not using these systems because they are expensive to install and they take a long time to pay for themselves at the level of individual practices and hospitals. They also tend to be incompatible between hospitals.

Here again, a national healthcare system has a significant advantage in that it can use economies of scale to field a common system. I would be interested in seeing the figures for iatrogenic deaths in other OECD country healthcare systems. I suspect they are lower than in the US.

3. Pre-existing conditions. If you have health insurance when you get cancer or another serious chronic condition, hopefully you like your job. This is because you are now probably locked into your current insurance provider because other plans will not accept you with your pre-existing condition. If your employer goes bankrupt, or you get laid off, you are now in deep trouble, because no private insurer wants expensive patients. This would not be an issue for a national system.

4. As a take off on point 3, have you ever observed an HMO saying it is especially good a treating any disease? The economics are against them, so they don't. If an HMO announced that it did well with diabetes for example, more diabetics would come and they would have to raise their costs to cover the treatment. This would drive away their healthier clientele which would force them to raise their rates again until the spiral drove them out of business. This suggests that the medical free market has information problems.

5. I agree that we try to provide medically for the poor, but relying on hospital emergency rooms is a very expensive way to do it. As I see it, the poor, unisured person who is sick tries to gut it out as long as possible. He goes to the emergency room when he absolutely has to, and by that time the condition has probably gotten worse, and more expensive, than if it was treated earlier. Hopefully it is still treatable.

As for why well off Canadians and English come here for treatment, its because they can afford to. I never suggested that this country's medical system is not good for the well off. It just has problems for the rest of us.

BTW, I think you made a good point earlier about the cost of laser surgery declining with private practioners. I think there certainly is room for fee-for-service medicine and this is its strong point. Essentially, this is medical mass production of a nice to have, but not essential product. If you want it and have the money, you get it. Laser eye surgery also is an immediate process. Its practioners don't even have to consider whether something will benefit theuir patients in 15-20 years, so they avoid the issues I raised in item 1 entirely.

Donald Clarke

P.S. As for socialism causing economic problems in Europe, it is more in overly protective labor laws than in medicine. If nothing else, look what free market healthcare has done to the US automobile industry. Toyota recently located a new plant in Canada, because of the better health care system.
1.20.2006 1:25am
nerpzilla:
Neal -

First, Roe is a very dubious case, any reasonable person would agree, in regards to its reasoning. Whether you like it or not, there are people on the other side of your thinking who do not like the government getting involved in these types of decisions, just as strongly as you feel the other way. This line of argument does not assist you in your contention against judicial review.

As far a judicial review - assume Congress passed a law regulating marriage. The law allowed for "Any number or sex of people to form a contract called marriage, and all states must extend any benefits of marriage to that group." The president signs it. Needless to say, there are a few states who dislike this law, and claim, that in the enumerated powers, Congress does not have the authority to regulate a traditional state police power. How does one prevent Congress and the Executive from using the Supremacy clause of the Constitution to enforce this law on the states? It is clearly unconstitutional, and there must be a check on the power of Congress. Although I sympathize with your dismay it is not explicit in the Constitution, the power of judicial review is clearly anticipated by it. It is the duty of the judiciary to support the Constitution, and this is thier inherent power to prevent the elected branches from breaching the contract the Federal goevrnment has with the states and the people.

Also, the Court is not the last word. There is the process of constitutional amendment, and this has ben used to overrule the Supremes, most notoriously the eleventh Amendement, which cut back on the Subject matter jurisdiction of the court.

While on that topic, i would like to address your argument of Article III, Section 2. Article III, Section 2 says nothing about power, only jurisdiction, specifically subject-matter jurisdiction. Unfortunately, the judicial power is not defined in the constitution, only the subjects to which the federal judiciary can extend said power are defined. However, if you would like context and understanding of the issue, I would refer you to Federalist 78:

"If it be said that the legislative body are themselves the constitutional judges of their own powers . . . it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both . . .
If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.

Upon the whole, there can be no room to doubt that the convention acted wisely in copying from the models of those constitutions which have established GOOD BEHAVIOR as the tenure of their judicial offices . . . The experience of Great Britain affords an illustrious comment on the excellence of the institution."

The Framers very seriously considered the role of judges, and their duty to prevent legislative overreaching. Judicial review exists. It is a fundamental Judicial Power. Judges are lifelong custodians of the constitution, and unelected for good reason. We may not always like when the courts use this power, and many dislike the results reached through its use, but it really is futile to argue it does not exist. Rather, the proper question should be "was that law really unconstitutional."
1.20.2006 11:12am
JunkYardLawDog (mail):
To Donald Clarke:

I see you are not convinced by the numbers.

Being a CPA as well as a business lawyer, I understand just how easily those numbers can be manipulated, both intentionally and accidentally.


Let me give you a few examples of how the free market in health care causes problems.

I never said free market healthcare or free market anything was problem free. I've said problems and all its still by far the best solution. I've also said there is room for tweaking around the edges of a free market system.


1. Say a treatement for for condition X costs $1,000, but reduces costs 10 years from now by $20,000. Will any of our current HMOs be interested in funding this treatment? No, because the average HMO keeps a customer for 7 years so the treatment is only benefiting their competitors.

I'm not sure if that's true in reality or not, but let's assume its a true statement. What you fail to realize is that HMO's are the LITE versions of Government run healthcare. HMO's are a little slice of socialized medicine. They just aren't exclusive. Government run healthcare is one single giant HMO. All the problems of an HMO multiplied by 100,000,000.


A national healthcare system would be motivated to make this kind of investment because it would save money in the long run. A fragmented system of private providers has no such incentive.

This statement defies experience with government institutions. Since when does government care about health costs or the costs of ANY government program 10 years out, 30 years out, 50 years out. Ever heard of these little government programs going bankrupt in 25 years or so like social security? Government gives even less of a crap about future down the road, past the next election cycle costs of anything. Government would fund these expenses EVEN LESS than an HMO would. Why? Because government run healthcare is a giant monopoly HMO with all the problems for a consumer of a private HMO, plus all the problems for the consumer of a Monopoly provider, plus all the problems for the consumer of bureaucratic uncaring administration of that monopoly HMO known as government healthcare.

In other words however bad you think HMO's are. You ain't seen nothing yet when its a single monopoly government run HMO.


Here again, a national healthcare system has a significant advantage in that it can use economies of scale to field a common system.

Yes like the economies of scale used by the government in defense contracts. The government designed solution would be a horse designed by a committee (sometimes called a camel). Further, bureaucratic momentum, the need to save money before the next election cycle, and the complete lack of innovation from the complete lack of competitive forces would guarantee whatever awfully system was put in place would be nearly non-functional and never work.

Have you never noticed the reports of how wonderful all the new computer systems updates for the FBI, NSA, etc is going so all these computers can talk to each other? Yet you assume by your assertions of facts that government always solves the indentified problem in a perfect manner. You also assume that government can correctly indentify on its owns the problems that need to be solved. Experience with big government does NOT suggest either of your implicit assumptions will ever turn out to be correct. Examples of UK and Canada and their low quality government run healthcare systems agains shows that your utopian assumptions of how wonderful and efficiently things get solved by big government healthcare monopolies are incorrect.


3. Pre-existing conditions.

Preexisting conditions and portability are areas of tweaking that could be done to free market healthcare. In effect making them more free markets from the consumer's point of view.


As for why well off Canadians and English come here for treatment, its because they can afford to. I never suggested that this country's medical system is not good for the well off. It just has problems for the rest of us.

About 80% of our population enjoys the best healthcare services, quality, and timeliness of delivery of same in the world. If that 80% is what you mean by the well off then I agree.

Some kind of fee for service system for all healthcare is exactly where we need to go. The opposite of a giant government monopoly HMO. I'm not saying we can't have private insurance. What I'm saying is that as the laser eye surgery shows, when the consumer is *price* concious and shops healthcare needs on the basis of price versus perceived need, then the prices drop and availability and quality of the product/healthcare delivered goes UP. Same way it works for all products.

The problem with escalating healthcare costs is DRIVEN to a large extent by our use of a third party payer system whereby to a large extent the *price* of healthcare services is of absolutely no concern to the consumer of those services. A giant monopoly third party payer system with but a single giant payer is not only NOT a solution to this problem, but will make the problem WORSE. We need to find a way to make it so that the consumer of healthcare is once again seeing and *feeling* the costs/payments for healthcare and can balance those costs against need to decide whether to buy that particular piece of healthcare and have less money thereby for other things or to not buy that healthcare at all or buy it from a different provider 15 or 30 minutes farther away, etc. etc. Private insurance should work in some kind of reimbursement fashion but have some wrinkles to it so that each insured has the opportunity to actually make money/cash in proportion to the degree to which they are thrifty and wise consumers of healthcare. Right now, patients don't ask doctors how much will that cost, and then try to negotiate something cheaper or find a cheaper alternative like they do with every other purchase they make. Instead consumers just ask "do you take my insurance" and then that's the end of price/benefit/cost considerations by the consumer of healthcare. The poor with no insurance don't even ask. They know they aren't going to pay no matter what the price.


As for socialism causing economic problems in Europe, it is more in overly protective labor laws than in medicine.

Its a lot more than that, even though that is a huge part of their problems.

If nothing else, look what free market healthcare has done to the US automobile industry. Toyota recently located a new plant in Canada, because of the better health care system.


That's absolutely NOT the result of free market healthcare. Its the result of rust belt unions whose time have long past, combined with mandatory union shop laws of the northern states. Its a result of government denying their citizens their liberty rights to work without being forced by law to join a union. Its the result of unbelievably wasteful and ridiculous union work rules, and unrealistic demands for pay and benefits (both health and retirement).

They are opening that plant in Canada IN SPITE of the fact that healthcare in Canada is a lot worse than in the USA. The advantage for them is that in Canada that cost of healthcare is shifted back onto the workers through the disguise of government monopoly healthcare. And other costs are likewise shifted from Toyota to the workers in similar hidden forms (Canada's higher taxation on individuals shifts these costs for healthcare and even some retirement benefit costs to the workers).

Toyato's Canada deal is an anti-USA Big Labor Union move.

Says the "Dog"
1.20.2006 7:18pm
Noah Klein (mail):
JYLD:

The cost of healthcare is making companies search for work outside the U.S. I suggest you look at this study. But I doubt you will do that because you don't believe in objective facts. It is the rise in healthcare costs that are driving businesses out of the U.S. or stop covering their employees.

Also, your plan to improve healthcare in the U.S. is ridiculous. The reason the U.S. went away from pay for service healthcare is because of the huge costs and Americans inability to pay for them. Do you know how much surgeries cost? A heart surgery can be as much as $150,000. Do you really think that people have that in their back pocket? People will not judge whether they need a medical procedure based on the cost. They want the medical procedure to live or live healthy. What does it matter if you're bankrupt if you're dead? You really have to reexamine your beliefs with regards to healthcare.


Noah
1.20.2006 10:53pm
Donald Clarke (mail):
JYLD


1. Say a treatement for for condition X costs $1,000, but reduces costs 10 years from now by $20,000. Will any of our current HMOs be interested in funding this treatment? No, because the average HMO keeps a customer for 7 years so the treatment is only benefiting their competitors.


I'm not sure if that's true in reality or not, but let's assume its a true statement. What you fail to realize is that HMO's are the LITE versions of Government run healthcare. HMO's are a little slice of socialized medicine. They just aren't exclusive. Government run healthcare is one single giant HMO. All the problems of an HMO multiplied by 100,000,000.

Please explain why a purely (non-HMO) private provider would have any incentive to provide such treatment under fee for service. The only way a system would have that incentive is if it could count on its patients staying around. The VA healthcare system has that incentive, since its patients pay less to get VA care then they would elsewhere and thus are encouraged to stay.

Some kind of fee for service system for all healthcare is exactly where we need to go. The opposite of a giant government monopoly HMO. I'm not saying we can't have private insurance. What I'm saying is that as the laser eye surgery shows, when the consumer is *price* concious and shops healthcare needs on the basis of price versus perceived need, then the prices drop and availability and quality of the product/healthcare delivered goes UP. Same way it works for all products.

Unfortunately, healthcare is not always like other products. Your example of laser eye surgery is an outlier, because it is more like other normal products. In economic terms, it is price elastic like most normal goods. Life saving medical care, like cancer therapy, is not price elastic, since the consumer will buy as much as he needs regardless of price, or he dies. Thus, relying on the free market to reduce prices for cancer therapy is unrealistic. Economics would suggest that a free market would take consumers for everything they had, since they have to have the therapy or die.

As for private insurance, it has intrinsic problems with prexisting conditions which I am glad you acknowleged. However, they are relatively intractable because they cut to the heart of how health insurance makes money. The plans try to get the healthiest population they can find so more of the premiums can go to profit instead of health care.

For example, say the cost of providing care to the US population of 300 million was $300 billion. That makes the cost per person about $1,000 a year. Everyone should pay an insurance premium of $1,000 per year. But if any company tried to set such a premium, it would go broke because its competitors would try to sign up healthier fractions of the population by offering lower premiums to those customers. The companies stuck with the ill sectors of the population would have to charge higher prices to cover their costs. This would drive away the less sick portions of their customer base so they have to keep raising their rates.

Can you please point to anywhere in the world that uses your preferred system? If it really is the best system surely someplace uses it, or has least tried it seriously.

For that matter, you have repeatedly asserted that the US offers the best care in the world for 80% of its population. Gieven that the US healthcare system kills nearly 100,000 people a year I suspect that is overly optimistic. You have also said that care in England or Canada is substandard. Could you please provide the source of your information? The sources I have found indicate the opposite. I have some English and Canadian acquaintances and I have yet to find one who would trade their system for ours. I don't doubt that some exist, I am just not well off enough to have met them.

Another problem with free market healthcare is information. Most patients do not know nearly as much about their conditions as their doctors do. The internet is helping this, but expecting the patient to make a truely informed choice about where he can get the best value for his money is somewhat unrealistic, especially if he is seriously ill. This also means that a free market has no incentive to provide excellent care quality, since patients are unlikely to recognize it and thus will not pay more for it.

For an example of this, an experiment was conducted in
in Cleveland in the 1990s. There was a well publicized effort was made to identify the worst performing hospitals in terms of mortality rates, longer than average patient stays, and lower patient satisfaction.
Did any of these hospitals go out of business? No they did not.

Yet another problem with free market healthcare is that it offers no incentives for prevention. Doctors make all their money from treatment. If the population gets healthy and stays that way, the doctors lose money. For example, as Longman relates:


In many realms of health care, no investment in quality goes unpunished. A telling example comes from semi-rural Whatcom County, Wash. There, idealistic health-care providers banded together and worked to bring down rates of heart disease and diabetes in the country. Following best practices from around the country, they organized multi-disciplinary care teams to provide patients with counseling, education, and navigation through the health-care system. The providers developed disease protocols derived from evidence-based medicine. They used information technology to allow specialists to share medical records and to support disease management.

But a problem has emerged. Who will pay for the initiative? It is already greatly improving public health and promises to bring much more business to local pharmacies, as more people are prescribed medications to manage their chronic conditions and will also save Medicare lots of money. But projections show that, between 2001 and 2008, the initiative will cost the local hospital $7.7 million in lost revenue, and reduce the income of the county's medical specialists by $1.6 million. An idealistic commitment to best practices in medicine doesn't pay the bills. Today, the initiative survives only by attracting philanthropic support, and, more recently, a $500,000 grant from Congress.


Overall, I think the free market certainly has a role to play in health care especially at the high end where the well off can pay for whatever they want and for things like laser eye surgery which is a normal (price elastic) good. However, it breaks down and causes problems below that. Free market capitalism is the best option for many, heck most things. That does not mean it is the best solution for every thing.

Donald Clarke
1.21.2006 8:27pm
minnie:
Justin writes: "She wouldn't do it voluntarily, so I waited till she was asleep, hahahahahahaha"

That's my vote for the funniest post! LOL.
1.22.2006 5:18am
Neal Lang (mail):
First, Roe is a very dubious case, any reasonable person would agree, in regards to its reasoning. Whether you like it or not, there are people on the other side of your thinking who do not like the government getting involved in these types of decisions, just as strongly as you feel the other way. This line of argument does not assist you in your contention against judicial review.

Taking an innocent human life is murder. Abortion takes an innocent human life. Abortion is therefore murder.

Our America was founded on the basis of "Certain unalienable rights" including the "Right to Life". Agruably, the "Right to Life" is the first and most necessary of our Creator endowed. The 14th Amendment incorporated this "right to life" into the Constitution, to wit:
Article. XIV. [Proposed 1866; Ratified Under Duress 1868]

Section. 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Permitting the murder of unborn innocent human babies, without due process, is unconstitutional. Yet, based on an unseen "penumbra" the Supremes legalized murder in the case of abortion.
As far a judicial review - assume Congress passed a law regulating marriage. The law allowed for "Any number or sex of people to form a contract called marriage, and all states must extend any benefits of marriage to that group." The president signs it. Needless to say, there are a few states who dislike this law, and claim, that in the enumerated powers, Congress does not have the authority to regulate a traditional state police power. How does one prevent Congress and the Executive from using the Supremacy clause of the Constitution to enforce this law on the states? It is clearly unconstitutional, and there must be a check on the power of Congress. Although I sympathize with your dismay it is not explicit in the Constitution, the power of judicial review is clearly anticipated by it. It is the duty of the judiciary to support the Constitution, and this is thier inherent power to prevent the elected branches from breaching the contract the Federal goevrnment has with the states and the people.

Also, the Court is not the last word. There is the process of constitutional amendment, and this has ben used to overrule the Supremes, most notoriously the eleventh Amendement, which cut back on the Subject matter jurisdiction of the court.

While on that topic, i would like to address your argument of Article III, Section 2. Article III, Section 2 says nothing about power, only jurisdiction, specifically subject-matter jurisdiction. Unfortunately, the judicial power is not defined in the constitution, only the subjects to which the federal judiciary can extend said power are defined. However, if you would like context and understanding of the issue, I would refer you to Federalist 78:

Hmmm! So it is your contention that Hamilton lied in Federalist 81 when he stated (emphatically) this:
LET US now return to the partition of the judiciary authority between different courts, and their relations to each other.

"The judicial power of the United States is" (by the plan of the convention) "to be vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish."1

That there ought to be one court of supreme and final jurisdiction, is a proposition which is not likely to be contested. The reasons for it have been assigned in another place, and are too obvious to need repetition. The only question that seems to have been raised concerning it, is, whether it ought to be a distinct body or a branch of the legislature. The same contradiction is observable in regard to this matter which has been remarked in several other cases. The very men who object to the Senate as a court of impeachments, on the ground of an improper intermixture of powers, advocate, by implication at least, the propriety of vesting the ultimate decision of all causes, in the whole or in a part of the legislative body.

The arguments, or rather suggestions, upon which this charge is founded, are to this effect: "The authority of the proposed Supreme Court of the United States, which is to be a separate and independent body, will be superior to that of the legislature. The power of construing the laws according to the spirit of the Constitution, will enable that court to mould them into whatever shape it may think proper; especially as its decisions will not be in any manner subject to the revision or correction of the legislative body. This is as unprecedented as it is dangerous. In Britain, the judical power, in the last resort, resides in the House of Lords, which is a branch of the legislature; and this part of the British government has been imitated in the State constitutions in general. The Parliament of Great Britain, and the legislatures of the several States, can at any time rectify, by law, the exceptionable decisions of their respective courts. But the errors and usurpations of the Supreme Court of the United States will be uncontrollable and remediless." This, upon examination, will be found to be made up altogether of false reasoning upon misconceived fact.

In the first place, there is not a syllable in the plan under consideration which directly empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State. I admit, however, that the Constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution. But this doctrine is not deducible from any circumstance peculiar to the plan of the convention, but from the general theory of a limited Constitution; and as far as it is true, is equally applicable to most, if not to all the State governments. There can be no objection, therefore, on this account, to the federal judicature which will not lie against the local judicatures in general, and which will not serve to condemn every constitution that attempts to set bounds to legislative discretion.

It seems that Publis thought that the Federal didn't have the "power" to overturn Legislation or State Court verdicts from what was delegated to it in the Constitution. Of course, Hamilton was only thinking about "judicial review" by means of "the spirit of the Constitution". Obviously the Supreme do not rely on "the spirit of the Constitution" to overturn legislation and State court rulings. In Roe the relied on a "penumbra" that cannot be found in the Constitution, and in Lawrence, "international judicial decisions, laws, and custom" to overturn the Texas anti-sodomy law - allowing exactly the hypothetical you put forth. Without Lawrence, their would be no "Same Sex Marriage" mess. Another reason to do away with the Federal Judiciary's "usurped" power of judicial review.
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both . . .
If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.

What ggod would it do to amend the Constitution - 5 unelected Supremes could easily find that any is Amendment is unconstitutional because it violates the "penumbra"!

Have you read Article V? So it takes two-third of both House of Congress and a majority vote in the Legislatures of three-fourth the States to over-rule 5 Supreme Court Justices - who find "penumbra" that no one else can, and rely on the Privy Court of Jamaica to amend our Constitution. Go figure!
1.22.2006 11:54pm
Neal Lang (mail):
Your new source is most certainly biased, and still does not explain the now 14% (145 or 146) that it says the patient was fully competent, or how it came up with those numbers (i.e., do they have a doctor on the record saying "She wouldn't do it voluntarily, so I waited till she was asleep, hahahahahahaha" and if so, is there a record of a criminal prosecution?)

You falsely assume the State would criminally pursue the euthanized victim's "right to life". Especially in a State where, "craddle to grave" socialism and a shinking working population, makes it in the States "interest" to reduce someones lifespan. Wait 'til the "boomers" retire and see what happens when the working population in the US must shellout over a 1/3 of their earnings simply to keep FDR and LBJ's promises. It will be pretty ugly and I doubt you will think it is so funny.
1.24.2006 11:34am