Joust The Facts

A Health Care Decision Reminder

Over the last week or so we've been deluged with stories attempting to pre-emptively delegitimize the Supreme Court's decision on the ObamaCare health care law, the inappropriately named Affordable Care Act.  The latest was from Roger Simon, writing at the ostensibly non-partisan Politico yesterday.  He does so by quoting extensively from Jeffrey Toobin, whose viewpoints are wholly partisan.  And from former Justice John Paul Stevens, who was on the losing side of the Bush-Gore election dustup in 2000.

At this writing, I do not know how a majority of the justices will rule on Obama’s health care plan, which was passed into law by Congress. Two branches of government have spoken, but their speech is but a whisper compared with the shout of our high court.

The die was cast in 2000. And it would take the most dewy-eyed of optimists to expect the court’s decision to be anything other than political.

Justice John Paul Stevens, now retired, wrote in his dissent in Bush v. Gore in 2000: “Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”

That is a lot to lose. But we have lost it. And getting it back may be a long time in coming.

You see, if the court rules the individual mandate constitutional and allows the law to stand, then it's the correct decision and the members of the court were able to overcome their political slant.  If they determine the mandate unconstitutional, then it's purely politics.  It must be easy to be on the left.  You're always correct, and any disagreement can only be because of political bias.

Recall, however, just how weak the arguments in favor of the individual mandate were in court.  The same Jeffrey Toobin called them a "train wreck."

Today’s arguments focused around the central constitutional question of whether Congress has the power to force Americans to either pay for health insurance or pay a penalty.

According to CNN’s legal analyst Jeffrey Toobin, the arguments were “a train wreck for the Obama administration.”

“This law looks like it’s going to be struck down. I’m telling you, all of the predictions including mine that the justices would not have a problem with this law were wrong,” Toobin just said on CNN.

And on the question of a limiting principle, Justice Steven Breyer got silence from Donald Verrilli.  Remember also that there's no severability clause in the law, meaning that if any part is struck down the whole law should be by right.  It's not the SCOTUS that wrote the law that way.  Justice Antonin Scalia remarked that on the issue of severability it would be "cruel and unusual punishment" to require them to read the whole law and pick and choose how it should have been written.  Recall also that the government did a poor job as well in arguing for the Medicaid payment extortion written into the law, whereby states would lose federal dollars entirely if they didn't expand their state program in a way acceptable to the feds.

The court’s divisions were on vivid display Wednesday during a discussion of the law’s Medicaid expansion, which gives states more federal money if they agree to enroll more of the poor. States can refuse, but only if they pull out of the program altogether.

The states challenging the legislation say that is not an option. The Medicaid program has grown so large that it is impossible to forgo federal funding and still provide medical care to the poor, they say.

"Nice state you got there.  It'd be a shame if something were to happen to it."  Of course, that's the Obama administration modus operandi, demonstrated this week against Arizona who had the temerity to try to control the flow of illegals across their southern border by applying federal laws.

So, as you read all the articles today screaming about the health care law being overturned (my prediction), remember just how weak the arguments were in its favor just three short months ago.

6/28/12 0935: More:

• Ace has a nice roundup, including  a link to a Reason compendium of pre-emptive strikes.
• I agree with The Blogfather, and he with me.
• Gabe Malor at Ace of Spades addresses Mr. Toobin's nonsense in Roger Simon's Politico piece about the Roberts court overturning more legislation.  Unfortunately for Mr. Toobin, he doesn't read the NY Times.  From Mr. Malor:

Just three laws per term! Far, far from being "eager" to overturn legislatures, as hack Toobin dribbled, and obviously, indisputably playing no unusual role in "second-guessing laws," as Fallows alarmingly squeaked, the Roberts Court has been a model of restraint. Restraint is, naturally, one of Chief Justice Roberts' well-known characteristics and it was remarked upon during his confirmation hearings. One could even creditably call the Roberts Court the most restrained, incrementalist Court of the modern era. (I assure you, these numbers have not changed appreciably in the past two years.)

Should the mandate be overturned today, liberals will repeat their lie endlessly in order to cast doubt on the legitimacy of the Supreme Court and to tarnish the Chief Justice's good name. You know better. Do not believe this sad, angry lie. And do not let some foolish lemming repeat it in your presence. The truth is that the Roberts Court has been unusually restrained in overturning laws when compared to its predecessors.

Unconstitutional? So What's Next?

The Heartland Institute's Peter Ferrara tells you, over at The American Spectator.  First, a brief explanation of why the whole law collapses without mandated insurance purchase.

Without the individual mandate, the rest of Obamacare is transparently unworkable, as President Obama and the Democrats themselves said during the jihad for its enactment. That is because the bill also includes what is known as "guaranteed issue" and "community rating." Under those provisions, an insurance company must insure whoever applies, and charge them no more than anyone else, no matter how sick or costly they are when they first apply...

The skyrocketing premiums cause younger and healthier individuals to drop their coverage. That forces insurers to raise premiums even more because the remaining pool is even sicker and costlier on average. The younger and healthier than flee even more, knowing they can automatically get coverage later if they become sick! ...

...without the individual mandate, the whole system inevitably collapses as described above.

He proposes a couple of free market solutions: block grant Medicaid to states to cover their poorest with income-based vouchers for private insurance, and create state high-risk pools to assist with private coverage when insurance is prohibitive.  I would add the provision of insurance crossing state lines and (perhaps) the portability of insurance when changing jobs.

These are market solutions that maintain the private health care system while supplementing it for the most vulnerable.  It still allows people to go without, if they're young, healthy, and elect to do so.  Those individuals should be encouraged to buy low-cost catastrophic coverage so that unforseen disasters could be handled.  That's encouraged, not mandated.  But, as Mr. Ferrara notes, covering the masses was never really the goal.

The only reason President Obama and the Democrats would not even consider this approach is that it does not involve the government takeover of health care, which was the real goal all along, so the wise government could run health care in the interests of progressive "social justice" (which sometimes means denying people health care).

One area this essay doesn't touch is Medicare, which is in its own entitlement death spiral as the baby boomers reach 65.  However, putting Medicare on a more sound footing does not require dismantling and turning over to the government the best medical care in the world.  Retiree health care can certainly be addressed separately.

Everyone's worry is about Supreme Court swing vote Anthony Kennedy.  Frankly, it's a little hard for me to understand how any of the nine justices, if they are truly versed in the Constitution, could conclude any differently than Judge Vinson.  I'm certain the Justices Sotomayor, Kagan, Ginsberg and Breyer will find a way, but their minority opinion in the ultimate judging of ObamaCare will be a classic demonstration of contrived logic and avoidance of proper consideration of constitutional limits on federal power. 

2/2/11 1005: And what would be a discussion of constitutionality and limits on federal power without a preposterous response from someone purported to be a constitutional scholar.

First, the higher prices and taxes aren’t Vinson’s problem if the bill itself violates the Constitution. Judges are supposed to rule on the facts and the law, not on the policy choices they like best. The prices and taxes are Congress’ issue to solve, within the limits of their authority under the Constitution.  Prices might drop and taxes might go down if Congress nationalized all means of production, too, but that doesn’t make it legal or morally right.

Second, the role of the judiciary is to check the power of Congress and the executive.  That’s why actual Constitutional scholars refer to the “checks and balances” of the three-branch federal system.  Maybe Obama learned his Constitutional law at the same place Chuck Schumer learned civics, but applying a check to Congressional overreach isn’t “judicial activism,” it’s one of the main purposes of the federal courts.  “Judicial activism” occurs when judges create laws from the bench in the absence of legislative action.

"Judges are supposed to rule on the facts and the law, not on the policy choices they like best."  I hope the liberal bloc of SCOTUS remembers that.

An Islam Of Convenience

James Taranto's Best of the Web today contains the following interesting story, about a Muslim 19 year old who refused to remove her hijab for her mug shot.  Yes, you read that right.

Maria Hardman, 19, of Boulder, reported to the jail Wednesday to do the paperwork for a two-day work crew sentence that was supposed to be served this weekend. But when a jail detention officer told her to remove her headscarf for her mug shot, she balked.

"It's stated in the Koran in two or three places that believing women should wear the veil, except in the company of close family members," she said.

She's undoubtedly a devout and strict adherent to the teachings in the Koran.  Well, maybe not so much.  How, indeed, did she end up on the wrong side of law enforcement in the first place?

Hardman's offense is an awkward one for an observant Muslim, whose faith prohibits alcohol consumption, to explain: driving while ability-impaired, the lesser version of a DUI.

"I was given alcohol without my knowledge," Hardman said.

Hardman said she was drinking punch that she assumed was non-alcoholic at a party in August, and when she realized she wasn't feeling herself, she asked about the punch. When she learned that it was alcoholic, she freaked out and just wanted to leave the party, Hardman said....

Hardman's blood-alcohol content after the accident was 0.19, more than two times the legal limit.

She pleaded guilty to driving while ability-impaired and was sentenced to two days in jail, as well as community service.

Well, she may have been given alcohol without her knowledge, though the cynic in someone who knows the ins and outs of college parties from past experience, me, believes otherwise.  But she apparently didn't "freak out" and try to leave the party immediately, as she admits three days later in this open letter to the community.

What people seem to forget is that this story is not about how I got to the jail. This is about what happened after I arrived at the jail, and the constitutional infringements that then occurred.

For the record, I do not dispute that I operated my 49cc motorized scooter on the day of Aug. 1. I was at a party, where I was served alcohol without my knowledge. I admit that when I discovered I was being served alcohol, I made no attempt to curb my intake.

I am 19 years old and a junior at the University of Colorado. This is far from a unique story in the college experience. For those who are in, or were at one time a college student, you will understand what I am saying.

The issue at hand revolves around my First Amendment rights as a United States citizen to freely practice my religion as I see fit.

Yes, let's not talk about how she ended up at the jail, which would be inconvenient.  How terribly convenient to insist on strict adherence to Islamic law when it disturbs police routine in booking you when detained for criminal conduct.  How terribly convenient to neglect Islamic law when it would curb your ability to consume alcohol at a party.  And this isn't about constitutional rights.  Those in custody of the law often lose rights - like the right to vote, to own a gun, and so on.

And oh, by the way, she wasn't just driving while impaired.  What's the legal drinking age in Colorado?

A Vote Negated

As we approach the November mid-term elections, with Republicans itching to strike while the iron is hot, it's worth remembering that there will most likely be some close elections.  And with close elections comes the potential for vote shenanigans to swing the result.  Here are a few links to keep in mind as we drop under 2 months to go.

First, former FEC nominee Hans von Spakovsky, now a senior legal fellow at the Heritage foundation, writes at National Review's The Corner about the aroma wafting from the Justice Department as regards the maintaining of proper voter rolls by the states.  It seems a number of states have had no one removed from their voter rolls due to death, which should certainly make one ineligible.  Several states have more registered voters than people of voting age, a situation that also exists in Philadelphia.

In the spring of 2006, I reviewed portions of the city of Philadelphia’s 2005 voting list. I found that underaged voters, deceased voters, and incarcerated felons were registered to vote and had remained on the voting list, despite the fact that none of them were eligible to vote in Pennsylvania (or, in most cases, anywhere else).

In Pennsylvania, a voter must be 18 or older as of the date of the election to be eligible to vote. Yet at least 130 voters on the list were under the age of 18. Thirty-four of whom had a birth year of 2004 — the year of the election. And 215 voters on the list had a birthdate of: “00-00-00.”

Just looking at the years of birth for the registered voters, I found 54 voters listed with years of birth ranging from 1825 – 1899. While it is possible that a voter born in 1899 could still be alive in 2004 (he or she would be 105), it is clearly impossible that someone born in 1825 would.

Digging a little bit deeper, I was able to find confirmed deceased voters still on the list. I took a sample of 385 registrants born between the years 1900 and 1905, and found that 51 (thirteen percent!) were in fact dead, according to the Social Security Death Index.

J. Christian Adams, a former voting rights attorney in the DOJ, is now a private citizen and is bringing lawsuits against his old bosses for their failure to enforce the portion of the law directing states to expunge ineligible voters from the rolls.  He notes that most often voter fraud is insufficient to swing an election; sometimes, though, it may be, or we would still have Senator Norm Coleman in Minnesota, and would have most likely had Governor Dino Rossi in Washington.  The potential problems are enormous with the smorgasbord of absentee ballots, hundreds of thousands in many cases, as well as provisional ballots and same-day registrations.

Every illegitimate vote for one candidate negates a legitimate one for the opposing candidate.  While voter suppression (and particularly intimidation) are more noteworthy due to direct negation of legitimate votes, opening the door to voting improprieties indirectly negates other legitimate votes.  The law gives the Justice Department under AG Eric Holder the responsibility for enforcing these provisions, and the DOJ is at this time sadly derelict in its duties with an election only two months away.  Mr. von Spakovsky writes

It’s too bad that a private citizen has to carry out the responsibility of the Justice Department because it has failed to do so and, in fact, refuses to do so for ideological and political reasons that have nothing to do with the impartial administration of justice.

Yes, it is too bad.  Maybe we should go to the purple finger?

Recognizing The Standard Smear

This is getting to be routine.  Some individual - judge, in this case - does something to offend the sensibilities of liberal activists and, voila!!, said action is determined by those same activists to be directly attributable to financial self interest or being beholden to special interests.  It happens virtually every time.  In this instance, episode 936 I believe, a federal judge ruled today that the off-shore drilling moratorium ordered by President Obama was "capricious," to say the least, and unwarranted, and he lifted the ban. 

Feldman says in his ruling that the Interior Department failed to provide adequate reasoning for the moratorium. He says it seems to assume that because one rig failed, all companies and rigs doing deepwater drilling pose an imminent danger.

Logical?  Yes, but who cares?  Obviously it's because he had stock in a drilling company.

Environmentalists and liberal lobbyists were quick to note Judge Martin Feldman’s financial interest in Transocean, an offshore drilling equipment contractor likely to be hit hard hit financially if the drilling ban continues. A number of groups circulated his disclosure forms to Washington reporters within minutes of his decision to reinstate drilling.

"A number of groups," like the Soros-funded and humorously misnamed Center for American Progress.  Critique of the judge's logic?  No.  An alternative reading of the applicable laws? No. Just a smear, and a lousy one at that.  Never mind that the federal government approved the drilling permits, and never mind that the other rigs pass safety inspections.  Is this the only stock he owned?  Is this a major portion of his portfolio?  Did he buy more before ruling?  Irrelevant!!  Blasphemy!!

Liberals seem to complain a lot about judges rulings that go against them, kind of like Italian soccer players.  Former President Jimmy Carter had a little whine today (HT Maetenloch), for example, about a Supreme Court ruling (6-3 decision) that barred any type of support for terrorist organizations, a decision which is really hard to argue against.  But even worse is the financial/influence smear immediately and irresponsibly advanced, and with little other than outrage at the outcome behind it.

It may not matter.  The President is busy stacking the commission assigned to look into the disaster with anti-drilling activists, and it's not likely that looking into this is going to change their minds, the opinions of recognized engineering experts notwithstanding.

Even as this commission moves forward, engineering experts across the country have agreed that there is no scientific reason for a blanket drilling ban. The Interior Department invited experts to consult on drilling practices, but as we wrote last week eight of them have since said their advice was distorted to justify the Administration's six-month drilling moratorium.

Judging from that decision and now from Mr. Obama's drilling commission, the days of "science taking a back seat to ideology" are very much with us.

Win, Win, Win, And Win

Yesterday we had a video-enhanced brief look at Arizona's illegal immigration enforcement law, and I mentioned that there are other locales with very similar provisions and directives to their law enforcement team that had not received nearly as much notoriety.

In fact, it seems there has been a county in Virginia with a similar law for the last three years.  Perhaps a look at their law and the resulting turmoil might shed some light on the discussion.

Officers now question all criminal suspects about their immigration status once an arrest is made.

In 2008, the University of Virginia conducted a survey to see what effects, if any, the Prince William County law had.  It concluded initial fears about racial profiling did not happen.

That's one win.

It also show [sic] that schools saw a drop in English as a second language enrollment..

Two for two.

... There was also a drop in uninsured mothers giving birth...

Three for three.

 ... and [a drop in] individuals turned over to immigration and customs enforcement.

A perfect day at the plate.  Reductions in uninsured care and balkanization in schools, and a lighter workload for the ICE, all without racial profiling.  I'm sorry, but it's hard to imagine there's much of a downside to such adherence to federal law.  Admittedly Arizona has a much bigger job to do due to it's proximity to the primary source of illegal immigration, but doesn't it seem that such a law backed up by proper border security and control might see similar success?

One gets the feeling that perhaps the primary goal of the opponents is not to protect minority groups from racist officers of the law, but rather to court the votes of those same minority groups.  /sarc

5/22/10 1400: Ah, but it seems that there are those tasked with the responsibility of enforcing the law who will refuse to do so, when it comes at the expense of political advantage.

A top Department of Homeland Security official reportedly said his agency will not necessarily process illegal immigrants referred to them by Arizona authorities.

John Morton, assistant secretary of homeland security for U.S. Immigration and Customs Enforcement, made the comment during a meeting on Wednesday with the editorial board of the Chicago Tribune, the newspaper reports.

"I don't think the Arizona law, or laws like it, are the solution," Morton told the newspaper.

This isn't your decision to make, Mr. Morton.  Just do your job.  I don't really care whether you like the law, or whether you believe such laws will help to solve the problem.  You are free to have your opinion about comprehensive immigration reform, and I'm free to have mine.  But your job, and the job of your department, calls for you to follow the law, and to selectively and unilaterally penalize Arizona, thereby making it okay to be here illegally in one particular state but not in others.  If you disagree so strongly with the enforcement provisions of immigration law then do yourself and the department a favor and resign.  This would at least show that you believe strongly in what you say.

Forcefully Appropriate

Yesterday President Felipe Calderon of Mexico spoke to Congress, and took that opportunity to lambaste the Arizona illegal immigration enforcement initiative as somehow discriminatory against Mexicans who happen to be in the USA without portfolio.(Approximately 1:20 in)

The necessary and forcefully appropriate response, from Rep. Tom McClintock, R-CA.  You must experience the entire speech for maximum effect. (Via LauraW at Ace)

The unnecessary, in reality disgraceful, response of the Democrats in Congress was a standing ovation.  No, not for Rep. McClintock.  For President Calderon, silly, as you will no doubt notice in the first video.  I kid you not.

Rush Limbaugh noted the hypocrisy of Mr. Calderon's attitude toward Arizona's decision on enforcing the law.

Look, it's very simple.  Both California and the official U.S federal policy have the same emphasis, whether the critics want to admit it or not (they don't).  It's even worse when you insist that they're just going to round up brown-skinned Cheech Marin lookalikes, when that's one thing that the Arizona law explicitly forbids.

REYES: What’s changed is you have a very active effort to round up people that look a certain way, and if you have proof you are an American citizen that let you go, and if you don’t they deport you. So now, that I look like a Mexican, and I am Mexican American, I become a target.

I find it fascinating that those who are attacking Arizona's immigration law do so on a dubious basis. The critics know, just know, deep within their soul, that Arizona's duly appointed and elected officials and the law enforcement arms in the state are certain to violate the law, and as a result are against it, and are thereby defending the rights of illegal immigrants to ... violate the law.  How do you suppose you arrive at the mindset that those in law enforcement will break the law while non-citizens who have quite clearly broken the law deserve additional protection?  Do the police unions in other states know that the Democrats have such little respect for their dedication and adherence to the law?

All of this is not without consequence.  When political advantage with a certain large and growing minority group dictates that you accuse policemen and elected officials of racism and foment fear and anger in that community there are consequences.  Winning means, for some at least, holding onto office and furthering an ideology; for others it seems to mean establishing order and making the community more safe.

Judges And Soldiers And Presidents, Oh My!

President Barack Obama selected former Harvard Law School Dean and current Solicitor General Elena Kagan as his nominee to fill the vacating seat of Justice John Paul Stevens.

Obama cited what he called Kagan's "openness to a broad array of viewpoints" and her "fair mindedness."

Standing beside the president in the East Room of the White House, Kagan said she was "honored and humbled by this nomination.

"Openness to a broad array of viewpoints?"  "Fair-mindedness?"  This is the classic disagreement between conservatives and liberals as regards the optimal function of the SCOTUS.  Conservatives believe in the blindfold on Justice, while liberals don't.  The latter want the judge to take into account the circumstances of those appearing before the Court, and not just pursue the dispassionate application of law.  Which makes me wonder, is it really "law" if it's so malleable?

Ms. Kagan is most notorious among conservatives for her position on banning recruiting by the military at Harvard in response to the Clinton administration "don't ask, don't tell" policy regarding gays in the military.  When academic institutional activism in response to the policy took place, Congress passed the Solomon Amendment, barring federal funding from those institutions.  While a law professor at Harvard in the 1990's Ms. Kagan joined an amicus brief supporting the right of the schools to do so in FAIR v. Rumsfeld.  In that case the Third Circuit Court of Appeals ruled in favor of the plaintiffs narrowly, in a decision that was overturned at the SCOTUS by 8-0.  You can read the story in more detail here.

While I'm not a legal scholar, I am interested in one facet of the selection of Ms. Kagan as it relates to this policy.  To wit: what does it say about our Commander in Chief and his attitude toward the military that he found someone who took such a position not only acceptable, but preferred?

Second, I also find it interesting that Ms Kagan, who by all reports has not been a judge, has little litigation experience, and did little scholarly writing, was selected by a man who ascended to the presidency having no executive experience, little experience in government, and virtually no scholarly writing even at Harvard Law Review.

The JTF "Quote of the Day"

From Megan McArdle, discussing Rep. Henry Waxman (D-CA) and his call for CEO's of companies altering their earnings picture on the basis of changes to tax law in the health reform law:

Waxman is incensed because this seems to put the lie to the promise that if you like your current plan, nothing will change.  But this was never true.  Medicare Advantage beneficiaries are basically going to see their generous benefits slashed, retiree drug benefits suddenly cost more and may now be discontinued, and ultimately, more than a few employers will almost certainly find it cheaper to shut down their plans.  If Congress didn't want those things to happen, it should have passed a different law.

In fact, it was never true that "if you like your current plan you can keep it."  So why did someone prominenet keep telling us that over, and over, and over?  And why did our vigilant media refuse to refute that lie every time it was uttered?

Money And Influence

Yesterday the SCOTUS ruled, in Citizens United v. FEC, that Congress should not have limited the freedom of political speech as they did with the McCain-Feingold campaign finance law.

The 5-to-4 decision was a vindication, the majority said, of the First Amendment’s most basic free speech principle — that the government has no business regulating political speech. The dissenters said that allowing corporate money to flood the political marketplace would corrupt democracy...

President Obama jumped at the decision to rail against the influence of big corporations that this would unleash

President Obama called it “a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.”

We can talk about free speech vs. the detrimental influence of large independent expenditures by unions and corporations, if you like.  But Drew M.  handles the discussion nicely over at Ace of Spades today, and Justice Kennedy's majority opinion (pdf) is worthy as well.  From the former:

Sure the Constitution protects ‘the press’ but as bloggers of today and pamphleteers of the founding era know, you don’t need to be a corporation to be ‘the press’. Clearly corporate media isn’t a necessary condition of ‘the press’ so why should media corporations be afforded special protections for 1st Amendment activities others aren’t?

There's also the inconvenient fact that corporations are nothing more than an aggregation of individuals (investors, workers, managers, etc). Each of these people have first amendment speech rights. Why exactly should those rights be destroyed simply because they are exercising them collectively instead of individually? (hint: they shouldn't)

There’s simply no merit to the left’s critique and they won’t like where it leads. The beauty of being a lefty is that every case is different and the argument you use one day, isn’t applicable to similar circumstances the next day if it doesn’t help you.

From the latter (pp 3-4):

Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints or to distinguish among different speakers, which may be a means to control content. The Government may also commit a constitutional wrong when by law it identifies certain preferred speakers. There is no basis for the proposition that, in the political speech context, the Government may impose restrictions on certain disfavored speakers. Both history and logic lead to this conclusion.

Read that once more, and think about it.  Do you really want the government deciding which entities can have their voices heard, and which cannot?

Besides which, there is a current example of a large and influential block of individuals exercising political speech through their donations that must be very familiar to Mr. Obama and the Democrats, and which was completely unaffected by the restrictions of McCain-Feingold in shaping policy.  This group of individuals was considered at every turn by those crafting the health care legislation.  Their influence likely cost Mr. Obama the chance to ever have "reform."  Their influence was so broad and so deep that the Senate bill that passed catered to their whim.  The provisions that catered to them was the reason why most physicians were against the bill.  It's a large reason why it was so difficult to manage the costs of reform.

I think we know that I'm referring to the trial lawyers, the tort bar.  The unwillingness to cross that bridge is the reason that Mr. Obama and the congressional Democrats can't crow about passing a reform bill, because enough physicians would likelly have supported any bill that had real tort reform.  But so scared were Democrats of losing the support of the deep pockets that finance their campaigns that Howard Dean famously admitted that they couldn't and wouldn't be touched.

So whine all you want about the "evil" of corporations' free speech rights under this ruling.  Then tell me that it's okay that some pigs are more equal than others.

What About The "Promise" Of Tort Reform?

From President Obama's speech to Congress on health care reform:

Now, finally, many in this chamber -- particularly on the Republican side of the aisle -- have long insisted that reforming our medical malpractice laws can help bring down the cost of health care. (Applause.) Now -- there you go. There you go. Now, I don't believe malpractice reform is a silver bullet, but I've talked to enough doctors to know that defensive medicine may be contributing to unnecessary costs. (Applause.) So I'm proposing that we move forward on a range of ideas about how to put patient safety first and let doctors focus on practicing medicine. (Applause.) I know that the Bush administration considered authorizing demonstration projects in individual states to test these ideas. I think it's a good idea, and I'm directing my Secretary of Health and Human Services to move forward on this initiative today. (Applause.)

That was, at the time, all theater as well.  He doesn't really commit to anything except "moving forward on a range of ideas."  Everyone watching, everyone in the room, knew he had no intention of allowing true tort reform, the kind that's been shown to work in, for example, Texas, including caps on non-economic damages.  The wording was designed for people to feel like he understood the problem and addressed the issue, but not to commit to actually doing anything about it.  Sure enough, this is exactly what we have in the House bill.

The health care bill recently unveiled by Speaker Nancy Pelosi is over 1,900 pages for a reason. It is much easier to dispense goodies to favored interest groups if they are surrounded by a lot of legislative legalese. For example, check out this juicy morsel to the trial lawyers (page 1431-1433 of the bill):

Section 2531, entitled “Medical Liability Alternatives,” establishes an incentive program for states to adopt and implement alternatives to medical liability litigation. [But]…… a state is not eligible for the incentive payments if that state puts a law on the books that limits attorneys’ fees or imposes caps on damages.

Must.  Help.  Poor.  Attorneys.

10/31/09 1350: A good line from Ed Morrissey:

No one should be the least bit surprised that the same Democratic Party that takes in over 80% of political donations from trial lawyers has attempted to kneecap tort-reform pilot programs in ObamaCare ... Maybe they should just call themselves the Ambulance Chasers Party and be done with it.

Taking A Crack At Constitutional Law

No, I'm not a lawyer, but I do play one on my blog.  A reporter for CNS News asked a startled House Speaker Nancy Pelosi today ... well, I'll let them tell you.

The exchange with Speaker Pelosi on Thursday occurred as follows:
 
CNSNews.com: “Madam Speaker, where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?”
 
Pelosi: “Are you serious? Are you serious?”
 
CNSNews.com: “Yes, yes I am.”
 
Pelosi then shook her head before taking a question from another reporter. Her press spokesman, Nadeam Elshami, then told CNSNews.com that asking the speaker of the House where the Constitution authorized Congress to mandated that individual Americans buy health insurance as not a "serious question."
 
“You can put this on the record,” said Elshami. “That is not a serious question. That is not a serious question.”

The question, and it is indeed a serious one, is can Congress write a law requiring that an American citizen purchase a good or service?  Under what clause of the constitution does such authority fall?  Because an individual mandate is, make no mistake, a requirement to purchase a service.  Ms. Pelosi and her spokesman don't think this is a serious question.  Here's a defense of their position at Dissenting Justice, discovered at Memeorandum.

The Constitution is written in general terms; only a few provisions define individual rights and governmental powers with precision. To make this point more concrete, I quote from a previous essay on the subject:

It is absolutely absurd to ask whether the constitution specifically or explicitly allows Congress to regulate or reform healthcare. The Constitution speaks broadly and ambiguously. Only a few provisions are specific and beyond dispute (like the age requirement for presidents and members of Congress).

The Constitution does not specifically or explicitly authorize the creation of the Air Force or Medicare, nor does it discuss the federal prosecution of crack cocaine possession. And the "Framers" certainly did not specifically contemplate airplanes, prescription drug and hospital plans for seniors, or crack cocaine because these things were not realities when they wrote the Constitution.

If conservatives only believe Congress can regulate things that are explicitly mentioned in the actual text of the Constitution, then they should essentially advocate the abolition of the federal government. At a minimum, they should seek the immediate repeal of laws banning partial-birth abortion and kidnapping; the Constitution does not mention children or abortion.

And here is the logical fallacy.  The conservatives' concern here is not that something unmentioned in the Constitution is being put in place; rather, the concern is that the freedom of Americans to choose not to participate is being infringed.  I happen to agree that Congress has the authority to create a health care reform design for the nation (though an argument can be fashioned that it is not interstate commerce, in that health insurance does not cross state lines).  I also happen to think it's a bad idea to do so.  But that's not the question.  It is, instead, can Congress mandate participation in that system?

The Constitution doesn't discuss Medicare, but, having set up the system, Doctors and patients are each free to participate, or not.  Yes, that's President Obama's favorite medical center not participating in Medicare.  Such freedom of economic association would be eliminated by the mandate.  This is what the CNS News questioner was getting at, and Ms. Pelosi should have a coherent answer handy next time the topic comes up.  And it will.

So, Glenn, for a physician, how'd I do?  Probably not enough citations of case law and SCOTUS precedents.

10/23/09 1140: Speaker Pelosi could do worse than peruse Randy Barnett at Volokh on the matter.

10/24/09 0950: It seems Ed Morrissey encountered the same straw man argument.

So I’ll ask again: What authority does Congress have to mandate that people buy a product?  What precedent do they have to threaten people with imprisonment if they don’t buy a product merely for existing, as opposed to a prerequisite for accessing public roads as with car insurance?  The reason why Pelosi, Leahy, and Hoyer refuse to answer those questions is because they don’t have an answer to them.

A few brave souls will argue that the “general welfare” clause means that Congress can mandate anything that they see as beneficial, but that misreads the word general – which meant the welfare of the nation as a whole, not a responsibility to make each individual citizen’s life choices for them.  The opposite reading would have made Congress a totalitarian monster, with the executive as its hatchetman, and the founders would have scoffed at such an interpretation.

10/24/09 1215: Thanks for the linkback, Ed.

No Shame

ACORN is suing two independent twenty-something journalists for providing conclusive proof that ACORN workers didn't have any problem with tax evasion and prostitution, I guess.  Well, what did you expect?  They may be crooked, but that also means they like a good mudfight.

The crux of the lawsuit centers around a Maryland law which makes it illegal to tape someone without their consent – ACORN is alleging O’Keefe and Giles did so. ACORN is asking for $500,000 in damages to be awarded to each of the employees filmed by O'Keefe and Giles, and ACORN itself wants $1 million in damages

If Maryland law enforcement decides that protecting the public by rigorous application of the anti-taping statute is proper, well, then that's their prerogative.  Personally I think the authorities in Maryland could do a lot more good for more people by looking in every nook and cranny of ACORN's records, but I suspect that Maryland's Democratic-dominated justice department disagrees.  They'll protect their tribe, whether or not they decide to nail the "two youts."

However, this isn't about that.  This is about punishing the messenger with legal costs and hassles, and damaging their names in the court of public opinion.  ACORN will still have the left wing media singing their praises for "all of the good they do in the community," and only those right-wing shills at FoxNews and Breitbart will be speaking up for the whistleblowers.

If ACORN avoids dire consequences for the disturbing actions uncovered by O'Keefe and Giles, then there will never be any hope of containing the shenanigans they pull every election, among others.  This may fall into the old adage to never wrestle with a pig, because you both end up dirty and the pig likes it.

The Words Speak For Themselves

Mr. Obama has the right to fight for his appointee.  But nobody is distorting anything.

"I am certain that she is the right choice," the president said in his weekly radio and Internet address in which he scolded critics who he said were trying to distort her record and past statements. Those include her 2001 comment that a female Hispanic judge would often reach a better decision than a white male judge.

He derided "some in Washington who are attempting to draw old battle lines and playing the usual political games, pulling a few comments out of context to paint a distorted picture of Judge Sotomayor's record."

Those comments weren't pulled "out of context."  Rather, they speak for themselves.

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.

Prior to the highlighted section she advises that "there can never be a universal definition of wise."  Perhaps.  But it would have to be a very broad definition to allow that highlighted quote to fit..

What's The Difference?

In Oregon, you can request the administration of medication to terminate your life if you are terminally ill.

On October 27, 1997 Oregon enacted the Death with Dignity Act which allows terminally-ill Oregonians to end their lives through the voluntary self-administration of lethal medications, expressly prescribed by a physician for that purpose.

The Oregon Death with Dignity Act requires the Oregon Department of Human Services to collect information about the patients and physicians who participate in the Act, and publish an annual statistical report.

In Minnesota you are not allowed to refuse treatment if you are afflicted with cancer.

Minneapolis (AP) — A 13-year-old boy's vow to resist chemotherapy by punching or kicking anyone who tries to force it on him will present doctors with a tough task if they can't change his mind. ...

Daniel and his parents stopped chemotherapy after one treatment and opted for "alternative medicines," prompting Brown County authorities to intervene. The cancer is regarded as highly curable with chemotherapy and radiation, but likely fatal without it. ...

"It can be very difficult to treat a 13-year-old boy who doesn't want to be treated," said Arthur Caplan, chair of the medical ethics department at the University of Pennsylvania. "I don't want to say it's impossible, but it makes it very tough on the doctors."

Last week, Brown County District Judge John Rodenberg said Daniel's parents, Colleen and Anthony Hauser, were medically neglecting him. Rodenberg said if a new X-ray shows a good prognosis for Daniel, chemotherapy and possible radiation appear to be in his best interest, Rodenberg said.

Yes, I understand that in Oregon the process depends on certification that the illness is terminal, and that Hodgkins Lymphoma in a young man is very treatable.  In the Oregon situation, though, the state has granted the individual to make informed decisions about their own life; in Minnesota, that ability and responsibility has been taken away by the state simply because the state disagrees with the decision.

My opinion?  I think that physician assisted suicide is absolutely wrong, and that in this case the state of Minnesota is likely correct in ordering treatment.  In both cases I come down on the side of the physicians not being a party to the hastening of death.

Blame Bush?

An ex-FBI and CIA employee pleads guilty to illegal computer searches.  I know what you're thinking.  Damn that Patriot Act!  The Bushitler fascists have run completely amok, trampling civil rights like there's no tomorrow.  What about FISA?  That NSA program is domestic eavesdropping, that's what it is.  Dick Cheney has got to be behind this.  Errr, no.

                        A former employee of the U.S. Federal Bureau of Investigation and Central Intelligence Agency has pleaded guilty to charges of fraudulently obtaining U.S. citizenship and accessing a U.S. government computer system to unlawfully find information about her relatives and the Islamic organization Hizballah.

Nada Nadim Prouty, 37, originally from Lebanon, also pleaded guilty Tuesday in U.S. District Court for the Eastern District of Michigan to conspiracy to defraud the U.S. government. She was accused of using her fraudulently obtained U.S. citizenship to gain employment with the FBI and CIA, and of using her position in the FBI to check on the information held on family members connected to Hizballah, according to the U.S. Department of Justice. The U.S. government considers Hizballah a terrorist group.

Let's call it what it is: spying for terrorists.  Ah but it's the incompetence of the Bush administration that led to this woman fraudulently getting a security clearance.  Errr, no again.

In April 1999, Prouty was hired as a special agent of the FBI, and she was granted a security clearance and assigned to the FBI's Washington, D.C., field office...

I could be wrong, but I don't think George Bush was president in 1999.

Terrorists, Guantanamo, And The Geneva Convention

James Taranto has an op-ed piece in today's Wall Street Journal (and on Opinionjournal.com) that looks at some of the legal decisions like Hamdan v. Rumsfeld and Rasul v. Bush that have led to remarkable confusion and acrimony over how to handle what are the textbook definition of "unlawful enemy combatants."  I've visited this territory previously, in discussion of the relevence of the Geneva Conventions to such 'soldiers'.   In particular, while Article 3 of the Third Convention specifies the proper treatment of prisoners of war, Article 4, largely ignored in the discussion, specifies who qualifies as a prisoner of war under the Convention.

Art. 4. A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

I run through the categories at the link.  Article 2 applies as well, specifying that if a conflict arises between a party to the convention and an entity (like Al Qaeda) which is not party to the convention, the former shall be bound by the Conventions provided "the latter accepts and applies the provisions thereof."  Al Qaeda, clearly, does not, targeting civilians, treating captives with viciousness and cruelty beyond comprehension, and hiding from view in civilian clothing and in the civilian population.

Mr. Taranto writes:

Some politicians have also undertaken efforts on behalf of enemy fighters. Senate Democrats, joined by Republican Arlen Specter, have introduced legislation that would restore habeas rights to Guantanamo detainees, although this is unlikely to become law as long as George W. Bush is president.

Colin Powell would go even further. "I would close Guantanamo, not tomorrow, but this afternoon," the former secretary of state told NBC's Tim Russert earlier this month. "I'd get rid of the military commission system and use established procedures in federal law or in the manual for courts-martial."

Mr. Powell claimed that "I would not let any of [the detainees] go," but his proposal would inevitably have that effect. Once inside the criminal justice system, detainees would become defendants with full constitutional rights, including the right to be charged or released, the right to exclude tainted evidence, and the right to be freed unless found guilty of a specific crime beyond a reasonable doubt.

Even the Geneva Conventions, when read fully and clearly, give no indication that such unlawfully acting 'soldiers' merit such consideration.  As Mr. Taranto notes, even lawful prisoners of war may be held indefinitely, until the end of hostilities.  This is the triumph of the quest for international approval over both reason and the letter of the law, in this case, the Geneva Conventions.

Nanny Government 101

Big Brother is looking out for you, you poor, misguided biped, you.

ALBANY, N.Y. - Walk, jog or bicycle across a New York street with an iPod plugged in your ears and you could get slapped with a $100 ticket under a new law proposed by a legislator from Brooklyn.

State Sen. Carl Kruger's bill would also outlaw the use of cell phones, Blackberries, video games or other electronic devices when crossing the street.

He cited the death of a 21-year-old man who was listening to music when he stepped off a curb and was hit by a bus in Brooklyn in September, and the death of a 23-year-old iPod listener last month.

It goes without saying that no one ever got hit by a bus before iPods came along.  A civil liberties attorney comes back with a great rejoinder.

E. Christopher Murray, a civil liberties attorney, said the proposal is excessive.

"With our schools failing, health costs out of control, and crushing property taxes, the legislature would rather play mother by legislating how we cross the street," he said. "What's next? Do you get fined if you don't look both ways?"

There are a distinct subset of legislators who think that it's their job to protect you from yourself.  Witness efforts to ban smoking at home, fast food, and trans fats.  Why not ice cream?  Maybe dentists could lobby to ban candy?

Back in the late 70's there was a collection of "Murphy's Laws" books.  One of the laws I distinctly remember was this: "It's impossible to make a system foolproof because fools are so ingenious." Ain't it the truth.

A Travesty Of A Farce

I haven't written on the Duke lacrosse rape 'case' to this point.  I read the reports as they came out last year, and made my assessment of the guilt/innocence of the various participants, and have been watching the developments to see if at the end it matched my assessment.  It looks as if I had it pegged just about right.  We were visiting friends in Pennsylvania this summer and I had the following conversation with my best friend's wife. (paraphrased)

AT: What do you think of the Duke rape thing?
Giacomo: They're innocent.
AT: (raising her voice slightly)  Those boys are not innocent.  They hired strippers to come to a party.
Giacomo: Well, they're not innocent in the sense of having the morals of a priest president  newborn baby.  They're a group of college guys, after all.  But they didn't do it.
AT: How can you be so sure?
Giacomo: Well, to start with, one of the guys she picked out of the improper photo lineup was getting cash from an ATM when she said he was part of the attack.

Which reminds me, I need to give her a call and ask what she thinks about the 'case' now.

Now Mike Nifong, the Durham prosecutor who tried and convicted the players before they had even been charged, has tried to recuse himself from the case.

Jan. 12, 2007— District Attorney Mike Nifong has requested that he have himself removed from prosecuting the Duke Lacrosse rape investigation, ABC News has learned.

A source close to the investigation said Nifong sent a letter to North Carolina Attorney General Roy Cooper asking his office to assume responsibility of the case. Calls to the Attorney General's office and Mike Nifong's office were not yet returned.

Clown.  This guy should be forced to continue prosecuting this case for the duration.  It's his baby.  He created the mess, and should have to clean it up, and live with the professional consequences of his irresponsible actions.

It's very simple, Mr. Nifong.  You have all the information, including, oh, eight or nine iterations of the complainant's story, none of which are reconcilable with the other facts that you have at your disposal.  You have DNA results that came up positive for five or so men, none of whom are members of the Duke lacrosse team, let alone the accused.  You have your failure to provide those likely exculpatory DNA results to the defense.  Your complainant then created a new iteration of the story, and rape charges were dropped.  You have a timeline that puts one of the accused nowhere near the site of the 'attack.'  You have a revised timeline that puts that person on his cell phone with his girlfriend.  You have a photo lineup where no non-lacrosse team photos were used, and you actually indicted based, apparently solely, on that identification.

You stay with the case, sir, and either see the process fully through, if you still believe in your complainant, or you drop the charges and take your prosecutorial misconduct medicine like a man.  If your request for recusal is based on your early prejudicial statements to the press, well, who is to blame for that?

Meanwhile, the 88 members of the Duke faculty who had the accused trio of players convicted early should be ashamed of themselves.  There are facts in this 'case', and they were all to ready to accept accusation as fact and ignore the ones that didn't fit their preconceived assessment of the vile things that misogynistic athletes do when they gather in groups.  Certain media outlets should be similarly ashamed.

See also Ace of Spades, who gives a little more detail on one extreme member of that group of 88, as well as an examination of the pliability of the complainant's story.  The Durham In Wonderland blog of KC Johnson is the place to go for all things Duke 'rape.'  See this post on the Nifong recusal request, which is far more comprehensive than mine.  Here's a Yahoo! News/60 Minutes compilation with video.

1/13/07 1821: And now Mr. Nifong has been relieved of his responsibility.

RALEIGH, N.C. —  The state attorney general's office agreed Saturday to take over the sexual assault case against three white Duke University lacrosse players at the request of the embattled district attorney.

Durham County District Attorney Mike Nifong, hamstrung by a flip-flopping witness — a black woman hired as a stripper — and dogged by allegations that he made inflammatory statements to the media, asked Attorney General Roy Cooper's office Friday to appoint a special prosecutor.

"Hamstrung?"  What hamstrung him was his eagerness to bring charges built upon a flimsy, shifting, and occasionally non-existent evidence.  I still think it would have been better, and certainly more enjoyable as spectator sport, for the AG's office to leave him captaining this Titanic of his own making.

Legal Mores ...

... or, to borrow a phrase from those doing the limbo, "how low can you go?"  Kim Strassel has a long but eye-opening article in the Wall Street Journal today looking at the legal shenanigans surrounding a single patient whose exposure to asbestos produced mesothelioma, a malignant cancer.

I can't do justice to it with a brief summary, so you'll need to read it in its entirety.  The highlights are that

1. Two different law firms sued multiple asbestos trust funds, obtaining compensation from five of them for the same patient.  That's right, five.
2. One of the firms tried to turn the trick a sixth time, believe it or not, but unfortunately for them this defendant managed to get the history of multiple awards exposed.
3. This second firm then went back and "modified" previous filings - for which they'd already received awards - which if originally presented in their modified form would likely not have resulted in awards.
4. Left an incriminating email trail of their maneuverings and subsequent cover-up.

Suffice it to say that it might make a great TV movie.

As a doctor and surgeon I'm left with two thoughts.  First, it seems to me that trying to obtain payoffs from multiple sources is the legal equivalent of doing unnecessary surgery, or at least billing two insurers for the same procedure.

Second, how lax are the standards regarding legal documents that they can be changed in ways that completely alter their meaning after a settlement or award is received based on those documents?  The firm in question seemed to believe that their slight of hand involved not the alterations but the fact that they were trying to hide the changes.

Having been on the receiving end of patient and attorney requests to "modify" my records it would seem to be the legal standard that all records are malleable.  I can assure you they are not, unless there is a proven error, and not just a "preferred" version of events.

Judicial Logic?

If this is the quality of reasoning of most of former President Clinton's appointees, then it should be considered a good thing that he can't appoint any more.  Federal judge Audrey Collins has struck down most of a Bush executive order designating several organizations as terrorist groups.

Some parts of the Sept. 24, 2001 order tagging 27 groups and individuals as "specially designated global terrorists" were too vague and could impinge on First Amendment rights of free association, U.S. District Judge Audrey Collins said.

The order gave the president "unfettered discretion" to label groups without giving them a way to challenge the designations, she said in a Nov. 21 ruling that was made public Tuesday.

The judge, who two years ago invalidated portions of the U.S. Patriot Act, rejected several sections of Bush's Executive Order 13224 and enjoined the government from blocking the assets of two foreign groups.

However, she let stand sections that would penalize those who provide "services" to designated terrorist groups.

One of the terror groups benefitting from this is the Partiya Karkeran Kurdistan (PKK).  The AP story helpfully points out that they were designated as a terrorist group.  Unhelpfully the story fails to point out that they were designated as such by the Clinton Administration, in 1996.  Ambassador Philip Wilcox at the time had this to say:

The PKK is a notorious terrorist organization. We have identified it as a terrorist organization and we have deplored the many acts of terrorism by the PKK in Turkey and in western Europe as well, and we have strongly discouraged any government from offering any kind of moral or other support to the PKK.

From Briefing by Ambassador Philip Wilcox on Release of Report, Patterns of Global Terrorism 1996, April 30, 1996

So the judge struck down  the naming of the PKK as a terror group by Mr. Bush's executive order, when that order is not the one that named them. The other terror group, the Tamil Tigers of Sri Lanka, was also on the original list in 1996. Someone explain the logic. Ms. Collins seem to be confused by a lot of things. She previously ruled against parts of even the revamped Patriot Act because the provisions were too confusing.

US District Judge Audrey Collins found that Congress failed to remedy all the problems she defined in a 2004 ruling that struck down key provisions of America's main anti-terrorism tool. Her decision was handed down Thursday and released yesterday.

"Even as amended, the statute fails to identify the prohibited conduct in a manner that persons of ordinary intelligence can reasonably understand," the ruling said.

Lacking the courage of her convictions, she then applied the ruling only to the plaintiffs in the case.  However, if that's the standard maybe someone should bring a suit challenging the US Tax Code (pdf) in her court.  The GAO found that not only is it burdensome to those complying, the IRS has trouble administering the complexity and frequent changes.  If she wants to be helpful, there would be a better place to start.

11/30/06 1710:  Hah!  I scooped Taranto! (scroll to bottom)

"A federal judge struck down President Bush's authority to designate groups as terrorists, saying his post-Sept. 11 executive order was unconstitutionally vague, according to a ruling released Tuesday," the Associated Press reports:

The case centered on two groups, the Liberation Tigers, which seeks a separate homeland for the Tamil people in Sri Lanka, and Partiya Karkeran Kurdistan, a political organization representing the interests of Kurds in Turkey.

U.S. District Judge Audrey Collins enjoined the government from blocking the assets of the two groups. The same judge two years ago invalidated portions of the Patriot Act. . .

In 2004, Collins ruled that portions of the Patriot Act were too vague and, even after Congress amended the act in 2005, she ruled the provisions remained too vague to be understood by a person of average intelligence and were therefore unconstitutional.

So laws are unconstitutional if "a person of average intelligence"can't understand them? Someone ought to get the Internal Revenue Code before this judge.

You're a day late, James.  I'll give you points for a better title, though.

Irreconcilable Differences

The Boston Globe editorial page today contains a really puzzling editorial.  In a story you may have heard about, a Newton, MA librarian made the FBI wait 9 hours to produce a warrant before allowing the Feds to seize a computer from which a terrorist threat had been sent.  Today's Globe implores the librarians and the Feds to work together to solve this dilemma in serious situations like this one, but still wrings its hands over loss of library liberty if the Patriot Act were passed.

Here's the setup:

FBI agents arrived at the library Jan. 18 to investigate the e-mail threat, made against Brandeis University, which had been traced to a library computer. Newton library director Kathy Glick Weil directed her staff to help the FBI pinpoint the three computers (out of some 25 in the library) where the threat might have originated. But she sent the FBI back for a warrant before she would relinquish the computers for further investigation. In the meantime, the threat was found to be a false alarm.

The Globe's analysis of the situation:

Once the threat had been made, a crime was committed, and federal investigators should have been given speedy access to the library computers. This was not a fishing expedition by a snooping government, but a response to a specific danger. The fact that the threat turned out to be a hoax is fortunate, but the threat itself is a crime.

"A fishing expedition by a snooping government?"  Give an example.  (Hint: they can't.)  All in all, though, their concern for the threat is commendable.  But the Globe also includes their now-irreconcilable opposition to the library provisions of the Patriot Act, and continues to call for those to be stripped out.

Librarians around the nation are justifiably opposed to provisions of the USA Patriot Act, passed by Congress just after the Sept. 11 attacks, that expanded the search powers of federal law enforcement. They worry that libraries will be forced to reveal what their patrons are reading or accessing on the Internet, inhibiting citizens' free access to library resources.

[...]

The Patriot Act is up for renewal next month, and Congress would be wise to limit the search powers to protect library records. But American libraries offer patrons thousands of personal computers for searching the Web and sending e-mails. Another Newton scenario is a strong possibility.

Why is this wrong?  Because the Globe is calling for librarians to be the responsible parties for assessing what does or does not constitute a threat to the public.  Last time I checked law enforcement was not a part of library training.  In the Globe's world, the librarian needs to protect the viewing and reading habits of library users - public users - by being the final arbiter of when the Feds are justified in looking.  They call for the librarians to immediately allow access when a definite threat exists; the Globe also calls for librarians to stand firm in protecting their patrons privacy.  Question: How are librarians to know when the Feds come calling whether or not a threat exists without the Feds disclosing classified information?  Are the librarians to be the arbiters of whether a true threat exists or whether this is simply "snooping?"

The Globe needs to make a decision.  Are they going to leave law enforcement to the professionals, and support the provisions of the Patriot Act - provisions that in five years have never been used, and regarding which librarians would be in a position to protest and demand review if they were being used inappropriately?  Or are they going to have librarians stand above the FBI and others as a "privacy court" that must be satisfied before an investigation can proceed?

I have a solution.  The next Globe editorial: "Should all librarians be FBI agents?"

Linked to Wizbang's COTT XLVIII.

Read The Classics

The Classical Version of the Hippocratic Oath.  I've highlighted the relevent section.

Hippocratic Oath -- Classical Version

I swear by Apollo Physician and Asclepius and Hygieia and Panaceia and all the gods and goddesses, making them my witnesses, that I will fulfil according to my ability and judgment this oath and this covenant:

To hold him who has taught me this art as equal to my parents and to live my life in partnership with him, and if he is in need of money to give him a share of mine, and to regard his offspring as equal to my brothers in male lineage and to teach them this art - if they desire to learn it - without fee and covenant; to give a share of precepts and oral instruction and all the other learning to my sons and to the sons of him who has instructed me and to pupils who have signed the covenant and have taken an oath according to the medical law, but no one else.

I will apply dietetic measures for the benefit of the sick according to my ability and judgment; I will keep them from harm and injustice.

I will neither give a deadly drug to anybody who asked for it, nor will I make a suggestion to this effect. Similarly I will not give to a woman an abortive remedy. In purity and holiness I will guard my life and my art.

I will not use the knife, not even on sufferers from stone, but will withdraw in favor of such men as are engaged in this work.

Whatever houses I may visit, I will come for the benefit of the sick, remaining free of all intentional injustice, of all mischief and in particular of sexual relations with both female and male persons, be they free or slaves.

What I may see or hear in the course of the treatment or even outside of the treatment in regard to the life of men, which on no account one must spread abroad, I will keep to myself, holding such things shameful to be spoken about.

If I fulfil this oath and do not violate it, may it be granted to me to enjoy life and art, being honored with fame among all men for all time to come; if I transgress it and swear falsely, may the opposite of all this be my lot.

Translation from the Greek by Ludwig Edelstein. From The Hippocratic Oath: Text, Translation, and Interpretation, by Ludwig Edelstein. Baltimore: Johns Hopkins Press, 1943.

The Modern Version contains a contradiction.  Here's the relevant section.

Most especially must I tread with care in matters of life and death. If it is given me to save a life, all thanks. But it may also be within my power to take a life; this awesome responsibility must be faced with great humbleness and awareness of my own frailty. Above all, I must not play at God.

Here is the relevant section of the Oregon Assisted Suicide Law.

127.815 s.3.01.Attending physician responsibilities.
(1) The attending physician shall:

(i) Verify, immediately prior to writing the prescription for medication under ORS 127.800 to 127.897, that the patient is making an informed decision;

(j) Fulfill the medical record documentation requirements of ORS 127.855;

(k) Ensure that all appropriate steps are carried out in accordance with ORS 127.800 to 127.897 prior to writing a prescription for medication to enable a qualified patient to end his or her life in a humane and dignified manner; and

(L)(A) Dispense medications directly, including ancillary medications intended to facilitate the desired effect to minimize the patient's discomfort, provided the attending physician is registered as a dispensing physician with the Board of Medical Examiners, has a current Drug Enforcement Administration certificate and complies with any applicable administrative rule; or

(B) With the patient's written consent:

(i) Contact a pharmacist and inform the pharmacist of the prescription; and

(ii) Deliver the written prescription personally or by mail to the pharmacist, who will dispense the medications to either the patient, the attending physician or an expressly identified agent of the patient.

(2) Notwithstanding any other provision of law, the attending physician may sign the patient's death certificate. [1995 c.3 s.3.01; 1999 c.423 s.3]

There is a difference between recognizing the inevitability of death and withholding treatment that would prolong suffering while admitting that inevitability, and hastening a death by administering treatements that bring about death.  Long treatises on medical ethics have been written on this topic, to which I could not do justice here.  And I understand the arguments of the 'assisted suicide' proponents; I just disagree with them strenuously.

Hippocrates had it right.  When a physician takes it upon himself, in consultation with the patient, to decide matters of life and death, rather than to understand those matters he errs.  The Oregon assisted suicide law puts the physician in the position of violating an inviolable clause of the classical Hippocratic Oath. In the modern version of the oath  there is the confusing call to be humble and aware of my own frailty in approaching the taking of a life, but to not play God.  The law has put the physician in the position of playing God, and violating even the modern version of the oath.

If the state wants to set up a panel for assisted suicide, and dispense and administer the fatal agents themselves, well, I disagree just as strongly, for it puts the state in the position of removing it's weakest citizens.  We know from history that such a reach is at the top of a slippery slope.  But at least in that construct the physician is not put in a position of violating the inviolable, of playing God.  The assisted suicide puts the physician in a position of hastening the demise of the patient.  No physician should ever be put in that position.  It is contrary to the oath.

1/18/06 0930: More from Ace of Spades HQ, where Ace analyzes the legal more than the medical issues.

So, it seems, Congress could outlaw the practice with a clearly-written law, assuming such a law could pass muster under federalism grounds... which would be difficult.

Althouse notes that several judges are inconsistent about federalism-- some upheld stronger Congressional powers over state drug laws (holding Congress had the power to limit medical marijuana use) and now reject such powers. Only O'Conner takes the states' rights position in both cases, and only Scalia takes the federal superiority position in both cases. Thomas disagreed with the previous decision, but writes that, now that it's settled law that the federal government is supreme in this area, it's "perplexing" to find some of his colleagues, who'd earlier argued in favor of federal supremacy, are now arguing the opposite.