The Politics of Health Care

[ccp]

There was an article in Journal of American Medical Assoc. which I receive for free thus I cannot copy it here.

The author stated it like this:
There are 3 choices:
1- We can have a doctor and their patient decide what care to give/receive.
2- We can take a government nanny approach like taxing fatty foods, tax breaks for excercise, regulate towards healthier foods, regualte cigarettes, alcohol as we etc.
Or the author's preferred approach;
3- Redistribute wealth and ration care.

We know which one is Obamacare.

[DougMacG]

CCP, Choice "1- We can have a doctor and their patient decide what care to give/receive." - sounds kind of American to me, at least the America that I once knew.
----
Crafty,  Over in The Way Forward I agreed whole-heartedly with this piece (GRACE-MARIE TURNER) and wanted to add that here.  She is right on the money.  Obama will not see new light and sign anything to do with repeal.  These are some practical steps a new congress can do for roughly the same affect. De-fund, dismantle, delay, direct oversight and delegate to the states.  ObamaPelosiCare is a choice that should be rejected at the state level and never was a power of the federal government. 

IIRC the neutral budget required collecting taxes 4 years before providing services so that the 10 year plan falsely breaks even saying 10 years pays for 6.  Instead of repealing, the new congress should set forward with a clean budget to their own priorities and just omit BS like that.  There will be a Newt-like showdown coming and I hope they are ready to hold ground win that war of opinion.

[Crafty_Dog]

By HAL SCHERZ
Facing a nationwide backlash, Democratic congressional candidates have a new message for voters: We know you don't like ObamaCare, so we'll fix it.

This was the line offered by Democrat Mark Critz, who won a special election in Pennsylvania's 12th congressional district after expressing opposition to the law and promising to mend it—but not to repeal it. As a doctor I know something about unexpected recoveries, and this latest attempt to rescue ObamaCare from repeal needs to be taken seriously.

For Democrats who voted for ObamaCare, this tactic is an escape route, a chance to distance themselves from the president with a vague promise to fix health-care reform in the next Congress.

To counter this election-year ruse, my colleagues and I at Docs4PatientCare are enlisting thousands of doctors in an unorthodox and unprecedented action. Our patients have always expected a certain standard of care from their doctors, which includes providing them with pertinent information that may affect their quality of life. Because the issue this election is so stark—literally life and death for millions of Americans in the years ahead—we are this week posting a "Dear Patient" letter in our waiting rooms.

 
Associated Press
 
Andy Griffith pitches President Barack Obama's health care law to seniors.
.The letter states in unambiguous language what the new law means:

"Dear Patient: Section 1311 of the new health care legislation gives the U.S. Secretary of Health and Human Services and her appointees the power to establish care guidelines that your doctor must abide by or face penalties and fines. In making doctors answerable in the federal bureaucracy this bill effectively makes them government employees and means that you and your doctor are no longer in charge of your health care decisions. This new law politicizes medicine and in my opinion destroys the sanctity of the doctor-patient relationship that makes the American health care system the best in the world."

Our doctor's letter points out that, in addition to "badly exacerbating the current doctor shortage," ObamaCare will bring "major cost increases, rising insurance premiums, higher taxes, a decline in new medical techniques, a fall-off in the development of miracle drugs as well as rationing by government panels and by bureaucrats like passionate rationing advocate Donald Berwick that will force delays of months or sometimes years for hospitalization or surgery."

We cite the brute facts of ObamaCare's passage:

"Despite countless protests by doctors and overwhelming public opposition—up to 60% of Americans opposed this bill—the current party in control of Congress pushed this bill through with legal bribes and Chicago style threats and is determined now to resist any 'repeal and replace' efforts. This doctor's office is non-partisan—always has been, always will be. But the fact is that every Republican voted against this bad bill while the Democratic Party leadership and the White House completely dismissed the will of the people in ruthlessly pushing through this legislation."

Then we address the Democrats' evasive campaign maneuver:

"In the face of voter anger some Democratic candidates are now trying to make a cosmetic retreat, calling for minor modifications or pretending they are opposed to government-run medicine. Once the election is over, however, they will vote with their party bosses against repealing this bill."

The letter's final lines are the most important:

"Please remember when you vote this November that unless the Democratic Party receives a strong negative message about this power grab our health care system will never be fixed and the doctor patient relationship will be ruined forever."

This message is going out to an electorate that is already frustrated over what they see happening to health care. Missouri voters rejected ObamaCare overwhelmingly in August, voting by a margin of 71%-29% to reject the federal requirement that all individuals purchase health insurance. Democratic pollster Douglas Schoen has assessed that ObamaCare is "a disaster" for Democrats. And around the country many little-noticed primaries have reflected voter rage—including the Republican primary victory of surgeon, political newcomer, and advocate of repeal Daniel Benishek in Michigan's first district.

Meanwhile, the Obama administration's damage-control efforts have fallen flat. The latest round of pro-ObamaCare television spots targeting the elderly and starring veteran actor Andy Griffith have not only failed to move the polling numbers. They have caused five U.S. Senators to ask for an investigation of the ads as a violation of federal laws barring the use of tax dollars ($750,000) for campaign purposes.

America's doctors have millions of personal interactions each week with patients. We have political power. And we intend to use it by working to defeat those who have disrupted and gravely endangered the best health-care system in the world.

Dr. Scherz, a pediatric urological surgeon at Georgia Urology and Children's Healthcare of Atlanta, serves on the faculty of Emory University Medical School and is president and cofounder of Docs4PatientCare.

[Crafty_Dog]

David Walter Banks for The New York Times
Displaced patients to be covered by a new agreement met at an Atlanta-area church.

By KEVIN SACK and CATRIN EINHORN
Published: August 31, 2010
ATLANTA — Thirty-eight end-stage renal patients, most of them illegal immigrants, would receive the dialysis they need to stay alive at no cost under a rough agreement brokered Tuesday among local dialysis providers and Atlanta’s safety-net hospital, Grady Memorial.


The deal will be too late for Fidelia Perez Garcia, left, who left for Mexico and died.

The deal, if completed, would end a yearlong impasse that has come to symbolize the health care plight of the country’s uninsured immigrants and the taxpayer-supported hospitals that end up caring for them. The problem remains unaddressed by the new health care law, which maintains the federal ban on government health insurance for illegal immigrants.

Grady, which receives direct appropriations from Fulton and DeKalb Counties, ultimately agreed on Tuesday to help pay for continuing dialysis for most of the immigrants. Others would be distributed among local dialysis providers as charity cases.

Last fall, Grady’s new management closed its money-losing outpatient dialysis clinic in a move intended to demonstrate fiscal toughness to the city’s philanthropic community. The closing displaced about 60 uninsured illegal immigrants who depended on free thrice-weekly treatments at the clinic to survive.

Illegal immigrants, and legal immigrants newly in the country, are not eligible for Medicare, the federal program that covers most dialysis costs for American citizens with end-stage renal disease.

Grady volunteered to transport the patients to other states or their home countries and pay for three months of treatment. Thirteen accepted the offer. But in response to a patient lawsuit and news media scrutiny, the hospital eventually contracted with a commercial dialysis provider to treat the others in Atlanta for one transitional year.

That contract, with Fresenius Medical Services, expired on Tuesday.

Vital details of the agreement remain to be negotiated, including precisely how the patients will be distributed, how much Grady will pay and whether the arrangement will extend for patients’ lifetimes. But all parties said after meeting Tuesday morning that they were optimistic that they would reach an understanding and that patients would see no lapse in treatment.

“That would make me feel real happy because continuing with my dialysis, I need it to live,” said Ignacio Godinez Lopez, 24, who crossed into the United States illegally as a teenager and has been treated at Grady’s expense for four years. “I’m young, and without dialysis it would be taking my life.”

The patients in Atlanta have gambled that American generosity, even at a time of hostility toward illegal immigrants, would prove a surer bet than uncertain care in their home countries. Several said that the fates of those who returned home had reinforced their fears about leaving Atlanta.

Five of the 13 patients who left for Mexico with assistance from Grady or the Mexican government have died, according to Matt Gove, a Grady senior vice president. Most died while still receiving dialysis, although not always as regularly as recommended.

One patient, Fidelia Perez Garcia, 32, apparently succumbed in April to complications from renal failure after running out of Grady-sponsored treatments in Mexico. Patients with end-stage renal disease can die in as little as two weeks without dialysis, which filters toxins from their blood.

Ms. Perez’s mother, Graciela Garcia Padilla, said by telephone that her family was able to raise money for three additional dialysis sessions, at a cost of about $100 each. Ms. Perez then went 12 days without dialysis and persuaded a hospital to treat her only when she was close to death, Ms. Garcia said.

“They sent her to me just to die,” Ms. Garcia said. “Here, they let people die.”

At the same time, regular treatment in Atlanta has not guaranteed survival. Four of the 45 patients who were receiving dialysis at Fresenius clinics have also died, Mr. Gove said.

Nationally, about one in five dialysis patients die within a year of starting treatment, and about two in three die within five years, according to government figures.

The hospital, which has recently begun a financial turnaround after years of multimillion-dollar losses, has spent more than $2 million on repatriation and dialysis since closing its clinic, Mr. Gove said. As the expiration of Grady’s contract with Fresenius loomed, each sought to shift responsibility to the other. Larry L. Johnson, a DeKalb County commissioner who prodded and mediated the negotiations, said there was movement only when Grady agreed to contribute financially to the patients’ care.

Under the broad outlines of the agreement provided by Mr. Johnson and other participants, Fresenius, DaVita Inc. and Emory University’s health system would each treat a small number of patients — most likely three to five — as charity cases. Fresenius would care for the rest with financial assistance from Grady.

Fresenius and DaVita are the country’s largest commercial dialysis providers, with combined net income of more than $1.3 billion last year.

The agreement would not address the broader concern of how to care for illegal immigrants in the region who have developed renal disease since the Grady clinic’s closing, or those who will do so in the future. At the moment, their only option may be to wait until they are in distress and then visit hospital emergency rooms, which are required by law to provide dialysis to patients who are deemed in serious jeopardy.


Kevin Sack reported from Atlanta, and Catrin Einhorn from New York.

[Rarick]

If you are an outlaw- you can expect a short life.  Illegal Immigrants are just that, make the decision, live and die with the consequences.  Free people have the same exact issues to deal with too, Citizenship is a happy accident that some free people enjoy and get some saftey nets.  Citizenship comes with a price that illegals are refusing to pay- why should they enjoy the same services as a citizen?  What protection under the law should they enjoy other than arrest and deportation?

[JDN]

Even bank robbers receive medical attention...

[G M]

JDN,

Nothing stopping you from paying for illegal alien medical bill out of your own pocket.

[Crafty_Dog]

I offer the following concept for consideration:

It seems to me that much of the conversation/debate makes health care an all or nothing proposition.  Why not have a certain base level that everyone gets whether they are covered or not (e.g. you are hit by a car and need emergency treatment) and other stuff (long, expensive treatment) that you don't, unless you provide for it yourself.

[Rarick]

I think that is what a majority were thinking of before Obama and company ramrodded thru their comprehensive package..........  Would be willing to support a "disaster/major medical" that covered immediate life threatening stuff.  If your wanted more then you would need to get supplemental insurance.  I do not believe I should be required to pay the medical expenses on a life time chain smoker, or an extreme sport bicyclist, or the 70 year old who is going in for a 3rd or fourth organ transplant.

Just the unpredictable "life happened" accident stuff. The bicyclist hit by the car making a left......  The bystander at a drive by shooting...... etc.  All the rest of the stuff would be "old school" you gotta figure out how to make enough to survive, or use enough common sense to avoid the expense all together.......

All I would expect is that the person treated have a legal status as a citizen, and that it was a genuine accident/ non-chronic condition.  Otherwise get whatever coverage you can afford through the current methods.

I would put this medical coverage in control of an entity separate from the government. Something like UL labs, NRA, Post Office.  Maybe something like the ADA or AMA (Dental and Medical associations)?  With some provisions to give citizens teeth in maintaining responsibility/accountability?

[Body-by-Guinness]

http://reason.com/archives/2010/09/09/seven-empty-promises-about
Reason Magazine


Seven Empty Promises About ObamaCare

The president is still struggling to sell his plan.

Peter Suderman | September 9, 2010

Just weeks before the Patient Protection and Affordable Care Act (PPACA)—a.k.a ObamaCare—passed, President Barack Obama urged congressional Democrats to make a final push for the bill, and asked them to schedule a vote as quickly as they could. “From now until then, I will do everything in my power to make the case for reform,” he said.

The bill passed, but the case didn’t take. Since Obama signed the bill into law, its unpopularity has, according to Pollster.com’s multi-poll aggregate, held steady, with roughly 48 percent of the public opposed. Liberal health care activists trying to sell the law and help its supporters in Congress have been forced to backtrack on their messaging—and in some cases, have found that their best strategy is to avoid mentioning the law at all. Now, the Obama administration and its allies are launching a multimillion dollar ad campaign intended to sell the public on the law’s virtues.

The president and his administration, it seems, are still doing everything they can to make the case for reform. The problemn is that so much of that case isn’t likely to pay off. Here are seven empty promises made about ObamaCare:

1. If you like your plan, you can keep your plan.
In June of 2009, President Obama gave a press conference where he explained his frequent promise that those who like their health care plans can keep their health care plans. “What I’m saying is, the government is not going to make you change plans under health reform,” he said. So in order to ensure health plan continuity, the law included a “grandfathering” provision that allows employers and insurers to continue offering plans that already exist without subjecting them to new rules and regulations. But the requirements that plans must meet in order to keep their grandfathered status are particularly strict. And in a draft document laying out grandfathering rules, the administration admitted that “after some period of time, most plans will relinquish their grandfathered status.” Meanwhile, the new law may also force more than 3 million seniors to switch their Medicare drug plans, regardless of whether they like them or not.

2. It will put Medicare on better fiscal footing.
In August 2010, the Obama administration’s Department of Health and Human Services released a report claiming that the PPACA would “extend the life of the Medicare Trust Fund by 12 years.” Later, Obama’s Health and Human Services Secretary, Kathleen Sebelius, told ABC News that her view is “supported” by the Congressional Budget Office (CBO). It’s not. Instead, the CBO said that “to describe the full amount of HI trust fund savings as both improving the government’s ability to pay future Medicare benefits and financing new spending outside of Medicare would essentially double-count a large share of those savings.” This view is backed up by Medicare’s top actuary as well, who has written that “in practice the improved (Medicare hospital insurance) financing cannot be simultaneously used to finance other Federal outlays (such as the coverage expansions) and to extend the trust fund.”

3. It will cost around $900 billion.
In September 2009, Obama told a joint session of Congress that his health care plan would cost “around $900 billion over ten years.” The CBO’s final cost estimate for the law came in at about $950 billion—close enough to the president’s figure for government work, perhaps—but a report from the CBO later estimated that the law will actually require about $115 billion in additional discretionary spending, putting the official price tag well over $1 trillion.

4. It won’t cut Medicare benefits.
At a 2009 AARP panel, President Obama brushed away the idea that his health care plan might cut Medicare benefits, telling the audience that “nobody’s talking about reducing Medicare benefits.” But according to the head of the Congressional Budget Office, thanks to $130 billion in planned cuts to companies that offer Medicare Advantage plans, the health care law will “reduce the extra benefits that would be made available to beneficiaries through Medicare Advantage plans.” Roughly 25 percent of Medicare recipients use Medicare Advantage plans. One can argue about whether or not the government should be reducing Medicare benefits, but it’s simply not true that no one in the program will lose the benefits they currently have.

5. It will be paid for “mostly” by shifting around money that we’re already spending.
One of the least popular aspects of the PPACA was its sky high cost. The president tried to combat this by saying that, although the bill would cost “about $100 billion per year,” most of that money would “come from the nearly $2 trillion a year that America already spends on health care.” Actually, the majority of the money from the bill’s official scored cost comes from new taxes. According to the CBO, “the two pieces of legislation [that make up the health care law] were estimated to increase mandatory outlays by $401 billion and raise revenues by $525 billion.”

6. It will give consumers more access and greater choice.
Organizing for America, the successor to Obama’s campaign organization, claims that the new health care law will result in “more choices...for millions of Americans.” But early signs indicate that, as a result of the law, patients and consumers will have fewer options for doctors and health insurance. Most experts, for example, expect that the health care overhaul will result in a serious doctor shortage, particularly amongst primary care phsyicians, meaning many individuals will have to wait longer for care, and may not get to see the doctor they want to see. Meanwhile, insurers in some states are already cutting back on insurance options.

7. It will bring down the price of insurance.
Just a few weeks before the final law passed, Obama said that “my proposal would bring down the cost of health care for millions.“ And health care affordability was so crucial to the president’s argument that the word made it into the title of the bill: the Patient Protection and Affordable Care Act. So will health care costs come down? Not likely. The CBO predicted that the law will cause average health insurance premium prices to rise by 10-13 percent. And a recent survey indicates that most businesses expect insurance prices to rise as a result of the PPACA. Perhaps Obama meant that the law would “bend the cost curve” and reduce the growing cost of health care? Even if he did, it wouldn’t matter; that’s not likely either. In June of 2009, CBO Director Douglas Elmendorf warned Congress that its proposals would bend the curve in the wrong direction. And in a May 2010 presentation at the Institute of Medicine, Elmendorf declared that in the CBO’s judgment, “the health legislation enacted earlier this year does not substantially diminish [the] pressure” of rising health costs.

Peter Suderman is an associate editor at Reason magazine.

[Body-by-Guinness]

ObamaCare's Fatal Flaw?

By Louis Case
Scott Brown's election could be the most significant turning point in the whole ObamaCare fiasco. And not because it was an "expression of the will of the people," because, as we've learned, that doesn't matter to our Washington overlords. No, Brown's election has trapped Congress in its own sloppy arrogance.

In a September 8 appearance on Greta Van Sustern's "On The Record," Virginia's Attorney General,  Ken Cuccinelli, explained the significance of the Brown victory in the context of Virginia's lawsuit to overturn ObamaCare.

In 2010, before ObamaCare was passed, the Commonwealth of Virginia passed its Health Care Freedom Act, which says, more or less, that Virginia residents cannot be required to buy health insurance. After ObamaCare passed, Virginia sued in federal court to have ObamaCare declared unconstitutional because it exceeded the scope of the Commerce Clause. The case already survived its first challenge by the federal government.

On September 3, both parties filed a Motion for Summary Judgment and a Memorandum in Support. To win such a motion, the movant must show that "there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law" (Fed. R. Civ. P. 56[c].) One section of Virginia's Memorandum in Support of the Motion focused on the issue of severance.

Virginia is asserting that certain portions (that is, the personal mandate) of ObamaCare are unconstitutional. If Virginia prevails, it leaves the question of what happens to the rest of the ObamaCare statute. This is where the concept of severance comes in. Normally, all comprehensive laws contain a boilerplate severance clause: it says that if any portion of the law is found to be unconstitutional, that portion is severed from the rest of the law -- that is, the rest of the law stands.

But ObamaCare contains no severance clause. Virginia is asserting that if it prevails on its substantive claims, the whole law is unconstitutional. (If Virginia does not prevail, any one of the twenty-plus legal challenges have the same severance argument available.)

If a severance clause is normal boilerplate, why does not ObamaCare contain one? This is where Scott Brown's election enters. Recall that the House passed its version of ObamaCare. On Christmas Eve, after much horsetrading and bribing, the Senate passed its version. The Senate version was not drafted to be in its final form; it was drafted to get 60 votes. Normally, these bills would be reconciled in a conference committee, and the final version would have to be voted on again with 60 votes in the Senate. However, before it could be sent to conference and reconciled, Scott Brown won in Massachusetts -- a reconciled bill could no longer get 60 votes! That is why the House had to vote up or down on the Senate bill, which was basically a draft without the normal boilerplate inserted.

As Virginia argued in its Memorandum (Pages 24 to 28), the presence of a severance clause raises a presumption that Congress did not intend the whole statute to depend on the constitutionality of any particular clause. But with no severance clause, they are not entitled to that presumption. A court cannot sever the offending clause on its own if the statute would not function as Congress intended.

Attorney General Cuccinelli took clear delight in the box the feds are in.  On the one hand, to prevail on its claim that the personal mandate is a proper exercise of the Commerce Clause, the feds must argue that it is necessary and essential to ObamaCare. On the other hand, to get around the severance problem, the feds must argue that the personal mandate is not essential. In the severance portion of the Memorandum (Pages 24 to 28), Virginia cited and quoted the statute itself, the feds' pleadings, and the feds' oral arguments emphasizing the necessity and importance of the personal mandate. I'm sure that section could have been much, much longer, but courts put limits on the size of Memoranda.

Courts sometimes examine the legislative history to divine congressional intent. Cuccinelli cleverly addressed that in his "On The Record" interview. He said there were two possible reasons for the exclusion of a severance clause: 1) sloppiness, or 2) a sort of mutually assured destruction -- that is, these senators inserted their little pet projects, and if they couldn't have theirs, then nobody else could have their pet projects, either. This was clever because against the background of behind-the-scenes wheeling and dealing, it's plausible. So when the feds assert at oral argument that Congress intended severability and cite newspaper articles, congressional records, etc. to back it up, guess what they open the door to.

While it's foolish to hazard a prediction of what courts will do, there is reason for optimism. There are factors in addition to the solid legal arguments against ObamaCare that might influence the court. First, a majority of people hate the law. Second, there is much litigation over it. Third, it is a fundamental and permanent change from a free America to a Euro-America. A single judge can end all that strife. Moreover, if you were a judge, would you like to go down in history as the one who gave up on America?

Page Printed from: http://www.americanthinker.com/2010/09/obamacares_fatal_flaw_1.html at September 13, 2010 - 08:30:21 PM CDT

[Crafty_Dog]

 

[DougMacG]

"Virginia is asserting that if it prevails on its substantive claims, the whole law is unconstitutional."

 - I can't answer that technical point legally but I can address it logically.  The votes for that package were carefully sought out and chosen based on the bill's entirety.  Recall the cornhusker kickback, the hospital in Connecticut, 10 years of taxes to pay for 6 years of benefits because of such delicate budget issues etc.  If the Court strikes down anything that changes the financial substance of the bill, and the purchase mandate is the largest piece of that puzzle, then you can not assume that all the pretend budget hawks in those narrow vote margins would have still voted 'yea' for the new court-broken, budget breaking package.  It seems to me any Supreme Court decision that would hold up the remaining parts of a bill that obviously would not have passed without including the unconstiututional portions would be flawed logic and wrongly decided IMHO.

Maybe Bigdog wants to jump in on this.

[Crafty_Dog]

I too would like his take on this.

[bigdog]

Guro Crafty, DougMacG, et al,
     The starting point of this article is sound, in that it is true that bills usually have separable ("severance") contents to them, in large part due to the understanding that bills can be overturned in part, but not necessarily in whole, by the federal courts.  (Sidenote: the Supreme Court, of course, disallowed the president, via the line item veto to do the same due to a violation of the "Presentment Clause" found in Article I.)  So, yes, in theory, the Supreme Court or lower federal court could, in fact, overturn the health care plan in whole, not just in part. 
     However, I am not sure that the author is thinking lucidly in much of the other portions of the article.  For example, he plays very loosely with the language of the Constitution in the article.  He says: "the feds must argue that it is necessary and essential to ObamaCare" and "the feds' oral arguments emphasizing the necessity and importance of the personal mandate" (emphasis mine).  That is NOT what the Constitution says, however.  The Constitution (Article I, section 8, clause 18) says "The Congress shall have power ... to make all Laws which shall be necessary and proper (emphasis mine).  This distinction may be small, but it is important.  "Proper" has historically been taken rather loosely, and expansively.  There has been some change in recent years, but on average, the federal government, even with recent conservative courts (as compared to the Warren Court), has most often sided with the national government in Commerce Clause cases. 
     I also think that he misunderstands the power that courts have.  Courts are weak, by design.  Alexander Hamilton wrote famously that the federal judicial branch lacked "the purse and the sword," powers granted to Congress and the executive branch, respectively.  There is no real enforcement mechanism that court's enjoy.  President Jackson once noted that "John Marshall has made his decision, now let's see him enforce it."  It is true that the federal bench has seen its powers increase in recent years, but that is a function of the powers of the federal government's increased powers, not really the bench vs. the elected branches (see for example Gerald Rosenberg's excellent book The Hollow Hope).  For all the talk of the threat of the judiciary, the fact is that, in some very real ways (appointment by the president ad Senate, salary increases by Congress, control over types of cases the Supreme Court can hear, possibility of impeachment, etc. etc.), the judiciary is not the spectre that many on both sides of the ideological spectrum think that it is. 
     Moreover, it takes enforcement of judicial decisions to make a decision become policy.  The executive branch is charged with that enforcement.  There is an appeals system in place.  The idea that a "single judge can end all that strife" is (very probably) false. 
     Furthermore, I have seen claims in recent news articles that the case discussed by the author and another filed by the Florida are "likely headed to the Supreme Court."  (Remember that , as the article notes, the initial challenge upheld the law.)  I would love to see the evidence for the claim rather than just it being asserted.  The federal district (trial courts) hear more than 300,000 cases a year.  About 60,000 of those cases are then appealled to the Circuit Courts.  Of those, the Supreme Court hears about 80 a year.  Statistically, that means that the case will likely NOT reach the Supreme Court, even it is appealled (the Supreme Court receives about 10,000 appeals a year).  It only takes four justices to hear a case, in what is called the "Rule of Four," so it might seem likely that the Supreme Court would hear the case.  However, assuming it came to Court having upheld the legislation, it seems unlikely that the liberal block would vote to take it.  It also seems unlikely that the conservative block would vote to hear it because they aren't necessarily sure how Kennedy would vote.  Many argue that he has moved "right" since O'Connor's retirement, but he also is a student of international law, much to the chagrin of many conservatives (see his death penalty jurisprudence, for example).  Therefore, he is probably not as concerned as his conservative colleagues about a "European" model of health care. This means that the conservatives would fear the judicial "seal of approval" on the national health care legislation. 
     Finally, there is a very real question about whether the Supreme Court would find the case to justiciable.  The Court has long held that cases which present a "political question," or one that is best decided by the elected branches, would not be heard by that court.  The most famous example of this is the Vietnam war, which had several legal challenges, none of which were ever heard by the Supreme Court.  It is very possible that even ideological sympathetic justices would not wish to hear the case due to the political nature of the question.  (Again, remember that as of now the first legal challenge to the law upheld the law.)  If the Supreme Court refuses to hear a case, the lower court decision would stand in that instance.
     I liked the article because it is interesting and thought provoking, but I think there are holes in the overall assertions made by the author. 

[G M]

http://hotair.com/archives/2010/09/14/wh-to-congress-lets-repeal-a-part-of-obamacare-mm-kay/

It looks like the white house wants a partial repeal of obamacare. Smells like desperation.

[Crafty_Dog]

BD:

Thank you for that thoughtful analysis.

[bigdog]

BD:

Thank you for that thoughtful analysis.

Thank you to you and DougMacG for the invitation, with apologies for my inability to be a consistent participant in this forum. 

[DougMacG]

Thank you Bigdog for a very helpful analysis.  I think you have it right in the sense that this court will be unlikely to jump in as it sits and for the reasons you stated, mainly that the legislation can still be scrapped, rewritten, confirmed or expanded in the political process without court intervention.

I agree that since no judge or lower court has not struck down any part of it so far, it puts no real pressure on the Supreme Court to select the case.

There was a post by Marc from the WSJ further up this thread that I thought gave very reasonable advice to a potential new congress on what to do in terms of opposition to ObamaCare.  In a nutshell, de-fund it, delay implementation, dismantle key portions and delegate powers to the states, etc.   Options are still available for derailing this without a court intervention.  

On the legal issue, Bigdog introduced Article I, section 8, clause 18 of the constitution.  Let me please quote the clause here in its entirety for those of us not as recently familiar with it:

Article 1, Section 8, Clause 18

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

I take that to mean that the power of congress in the larger sense needs to be granted elsewhere in the constitution and then the laws necessary and proper to carry it out are granted here.  So where in the constitution is the larger power of the congress granted to run the nation's and the individual's healthcare?  

That power to regulate is arguably derived from the Commerce Clause, but the choice or fact alone of no insurance is a non-economic activity.

The Commerce Clause reads: [The Congress shall have Power]"To regulate Commerce ... among the several States..." - Article 1, Section 8, Clause 3

Healthcare I'm sure meets current standard for constituting interstate commerce. This legislation though goes further in my opinion than regulation of private companies providing services in the sense that it eliminates individual choices that millions choose today.  A strong argument can be constructed either direction about whether this is not a necessary and proper way of regulating that commerce in a limited government context.  As BD pointed out, neither side of this divided court should be confident enough that their side would prevail to unnecessarily risk establishing a new precedent against their own view.

For me, the Commerce Clause has already been used far too expansively.  I can see a constitutional power for reasonable regulations of the firms who provide interstate healthcare, like requiring an MD for certain procedures or requiring surgeons to cut with clean knives, but I have no idea where they were given the power to even ask me about my non-coverage, health history or personal data beyond my name and address for census and income for taxes.
-----

Easy to find opinions on either side of this.  Here's one by authors who worked in the Reagan and HW Bush Justice Departments, written before the final bill was negotiated, with key paragraphs excerpted:  http://www.washingtonpost.com/wp-dyn/content/article/2009/08/21/AR2009082103033.html

The otherwise uninsured would be required to buy coverage, not because they were even tangentially engaged in the "production, distribution or consumption of commodities," but for no other reason than that people without health insurance exist. The federal government does not have the power to regulate Americans simply because they are there. Significantly, in two key cases, United States v. Lopez (1995) and United States v. Morrison (2000), the Supreme Court specifically rejected the proposition that the commerce clause allowed Congress to regulate noneconomic activities merely because, through a chain of causal effects, they might have an economic impact. These decisions reflect judicial recognition that the commerce clause is not infinitely elastic and that, by enumerating its powers, the framers denied Congress the type of general police power that is freely exercised by the states.  ...

The other obvious alternative is to use Congress's power to tax and spend. In an effort, perhaps, to anchor this mandate in that power, the Senate version of the individual mandate envisions that failure to comply would be met with a penalty, to be collected by the IRS. This arrangement, however, is not constitutional either.

Like the commerce power, the power to tax gives the federal government vast authority over the public, and it is well settled that Congress can impose a tax for regulatory rather than purely revenue-raising purposes. Yet Congress cannot use its power to tax solely as a means of controlling conduct that it could not otherwise reach through the commerce clause or any other constitutional provision. In the 1922 case Bailey v. Drexel Furniture, the Supreme Court ruled that Congress could not impose a "tax" to penalize conduct (the utilization of child labor) it could not also regulate under the commerce clause. Although the court's interpretation of the commerce power's breadth has changed since that time, it has not repudiated the fundamental principle that Congress cannot use a tax to regulate conduct that is otherwise indisputably beyond its regulatory power.

[prentice crawford]

=DougMacG link=topic=1411.msg40618#msg40618 date=1284567215]
 On the legal issue, Bigdog introduced Article I, section 8, clause 18 of the constitution.  Let me please quote the clause here in its entirety for those of us not as recently familiar with it:

Article 1, Section 8, Clause 18

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

I take that to mean that the power of congress in the larger sense needs to be granted elsewhere in the constitution and then the laws necessary and proper to carry it out are granted here.  So where in the constitution is the larger power of the congress granted to run the nation's and the individual's healthcare?  

That power to regulate is arguably derived from the Commerce Clause, but the choice or fact alone of no insurance is a non-economic activity.

The Commerce Clause reads: [The Congress shall have Power]"To regulate Commerce ... among the several States..." - Article 1, Section 8, Clause 3

Woof,
 For one thing they seem to interpret the meaning of "all other powers vested by this constitution" as meaning the Constitution has all the power. I would refer them to the 10th Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
 
 I would also point out that 'the power to regulate commerce' isn't the same as the government being given the power to participate in commerce.

                          P.C.

[Crafty_Dog]

Forgive the nitpick PC, but it is "interstate commerce", not "commerce".

I would also add a reminder of the 9th Amendment as well as the 10th.

[prentice crawford]

Woof Guro Craftydog,
    And I will nitpick and say that the term commerce clause refers to the Foreign Commerce clause, Interstate Commerce clause, and Indian Commerce clause and each of those refers to their application under the same sentence in the Constitution that reads, The Congress shall have power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes; and since I was using the term in context with how it is used in the Constitution, I didn't think that any distinction was necessary, as seeing the term "interstate commerce" isn't used in the Constitution to begin with, but you are certainly right that there is a significant distinction to be made between the limited power to regulate interstate commerce and regulating all commerce. You're also right about the 9th Amendment being applied to the issue of government healthcare as well, however the 9th more specifically addresses rights being denied or disparage by the government where the 10th addresses delegated  powers, which is what the Commerce Clause does in giving the government power to regulate commerce... between the several states and so on and so forth, which was what I was addressing. My larger point was that the government was delegated the power to regulate but in the case of healthcare they are not only regulating, they are participating in commerce between the States by taking over healthcare to a large degree and that is not a power that is specifically given to them anywhere in the Constitution. Which was what Doug was alluding to in his post. Now of course that won't stop some lowlife, oath breaking, ideologically driven, Liberal Federal Judge from conjuring up from the ether and vapors of Liberal Constitutional law (which has nothing to do with the Constitution), and find that indeed that's what the Founders had in mind.
                             P.C.

[Crafty_Dog]

"you are certainly right that there is a significant distinction to be made between the limited power to regulate interstate commerce and regulating all commerce"

Which was what I intended to say 

[prentice crawford]

Woof,
 But there lies the "de facto but not de jure", "in fact but not necessarily within the law"; there is precedent (a word that now means amendment by judiciary), in Constitutional law that overides the 10th Amendment. Wickard v. Filburn (1948), this involved the 1938 Agricultural Adjustment Act. This act controlled how much wheat a farmer could grow according to acreage. A guy in Ohio named Roscoe Filburn, went over this amount by growing his allotment to sell and then growing enough over that to feed his own family and cattle. His lawyers made the case that since the extra wheat was not sold in interstate commerce, that Congress didn't have the power to regulate the overage under the Commerce Clause. The Supreme Court of the U.S. conceded that his actions were not "commerce" but ruled that it was immaterial and made a decision against him finding that Congress could regulate any activity that exerts a substantial economic effect on interstate commerce and his own contribution to the demand for wheat may be trivial by itself, is not enough to remove him from the scope of federal regulation, where as here his contribution, taken together with that of many others similarly situated is far from trivial. So within the law due to this precedent, the Commerce clause gives Congress the power to regulate almost anything. Of course this is unconstitutional but because of stare deisis, this has never been overturned. Which is why making a case against the government for actively engaging in commerce via the healthcare law should be pursued instead of their ability to regulate it. The Commerce Clause gives them power to regulate not participate.
                                                                            P.C.

[Crafty_Dog]

The argument needs to be made that Wickbard should be reversed.

[prentice crawford]

Woof Guro Craftydog,
 Absolutely, but not likely I'm afraid. The study of Constitutional law relies on precedents, not the Constitution; which means most judges are not educated on the intent of the Founders but only on the opinions and views of other judges.
                                       P.C.

[Crafty_Dog]

Well, I know a little bit about this    When I was in Ruth Bader Ginsburg's class on Constitutional Law even she recognized that sometimes cases were wrongly decided and should be reversed.  Why, look at how she reversed her previous thinking on the matter of States' Rights in Bush vs. Gore! 

[DougMacG]

P.C.:"I would refer them to the 10th Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Crafty: "I would also add a reminder of the 9th Amendment as well as the 10th."
9th Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
-----

Yes, the 10th would be the basis for the Massachusetts system and fewer people are being hurt by that and easier to dismantle than a federal program.

9th amendment is where they found the right to privacy (IIRC), an unenumerated right  that the Roe v. Wade rests on.  ObamaCare is an gigantic invasion of privacy.  How can you participate in the system without the compulsory taking of very very personal information?  
----
Don't forget the 1st amendment and I believe there is a religious out-clause in Obama-Care.  What I don't get in terms of a right of privacy and freedom of religion is why anyone would have to disclose their religion to qualify and then have the validity of the objection scrutinized by big government.  That is not freedom of religion.

My religion, home churched, has opposition to big government and socialized medicine right in the core beliefs derived from the ancient biblical principles of thou shalt not steal and thou shalt not covet thy neighbor's health coverage (or his wife or his ass).  God endowed and entrusted each one us with the capability to negotiate our own coverages and contracts in a free society and every infringement on that is a punishable sin.
----
Crafty, Perhaps a constitutional amendment could be constructed to overturn Wickard v. Filburn, the case where growing 'wheat' on private property for personal consumption only was deemed to be a form of interstate congress.  We shouldn't need one, but that could give the liberal justices something new to study rather than dream up new expansions to the commerce clause.  Might get the support of another generation that wants to grow more than wheat.
----
P.C.'s distinction between regulating and participating in commerce is brilliant! ... if not something that should be obvious to all of us.  Without drifting subjects here but this is all tied to things like removing General Motors' CEO, restructuring Chrysler's debt, arbitrary market interventions like cash for clunkers, choosing which investment houses get merged and bailed and which get closed and sold, etc.  The health care bill is all part of that runaway process of government meddling and participating, not regulating.

[prentice crawford]

Woof Doug,
 This is the second time in my life that someone referred to something I did as being brilliant; my mom said "Brilliant!", when I dropped and broke her favorite coffee cup. I liked this time better.
                                                   P.C.
                                                      

[DougMacG]

Obama says he doesn't explain it well enough which means of course that you unwashed out there are too stupid to understand that rule by the elite and handing your private decisions is going to be good for you...
-----------------
http://www2.timesdispatch.com/news/editorials/2010/sep/27/ed-care27-ar-526411/

HEALTH CARE: 'You Dummies'

Several months ago President Obama promised that Democrats would be proud to campaign on the new health care overhaul. With campaigns now peaking, the only Democrats who mention the law these days are the ones who voted against it. So supporters have decided to try a new approach: calling voters dimwits.

That's not how they're putting it, of course. Obama, for instance, says he faults himself "for not being able to make the case "more clearly to the country." Maybe if he spoke louder and used small words . . . .

Funny thing, though: The president said precisely the same thing nine months ago, during his State of the Union address, when health-care reform was still being debated: "This is a complex issue . . . .I take my share of the blame for not explaining it more clearly to the American people."

Wait a second. Received wisdom tells us Obama is the greatest orator since Ronald Reagan, if not Cicero. He's so eloquent he could talk the ticks off a dog. He's known for nine months that he needs to do a better job of selling the health care overhaul -- and he hasn't been able to do it. Did he suddenly get tongue-tied? What's the real problem here?

The problem is not that people just don't understand a complex law, or even that -- as a recent AP story spun it -- Obama "has yet to find the right wavelength for communicating information that's relatively straightforward." After all, congressional Democrats conceded they didn't understand what was in the bill, either. But that didn't keep them from voting for it.

The problem is that the law stinks. The critics' predictions -- it's going to raise health care costs, the deficit, taxes, and insurance premiums, make getting medical care more complex, and help fewer people than advertised -- are coming true already. Members of the public understand this all too well.

When someone says, "I'm sorry you took it the wrong way," the listener knows the speaker is not really apologizing -- he's calling the listener oversensitive. And when a politician says, "I'm sorry I didn't explain things clearly enough," the voters know he's not really admitting a personal failure -- he's calling them stupid.

Democrats and an often sympathetic media are trying, once again, to tell voters they would like a lousy law if only they had enough brains. No wonder the Republicans are poised on the verge of an electoral sweep.

[Crafty_Dog]

Glenn Beck had an incredible clip of Sen Kerry yesterday wherein he rather directly accuses American voters of being clueless.

[DougMacG]

Let's implement these ideas.
--------------------
If Obamacare Is Repealed, What Then?
By Deane Waldman     October 03, 2010

(J. Deane Waldman MD MBA is the author of "Uproot U.S. Healthcare," Tenured Professor in both the Medical and Management Schools at University of New Mexico and Adjunct Scholar for the Rio Grande Foundation.  Educated and trained at Yale, Chicago Medical, Mayo Clinic, Northwestern, Harvard, and Anderson Schools, he has authored over one hundred academic citations in medicine as well as healthcare strategy and management. He has been chief of pediatric cardiology at three major medical centers.)

Most opponents of Obamacare (HR 3590), including its Republican detractors, offer nothing substantive as an alternative. If healthcare is truly "broken" and if Obamacare is so wrong, what should we do instead?

The answer is surprisingly straightforward: practice good medicine, rather than smarmy politics, on sick healthcare. That is the thesis of my book "Uproot U.S. Healthcare."

There are five steps in good medical practice, whether on a sick person or a sick system.

    * 1. Review all past and present evidence. Depending on logic alone is not acceptable.
    * 2. Diagnose the reason(s) for illness -- do root cause analysis.
    * 3. Treat cause(s), not the signs and symptoms. Avoid the ‘blame game.'
    * 4. Partner with the patient. You cannot dictate to her, him, or it.
    * 5. Adjust the treatment plan if outcomes are not those desired.


As is obvious, Congress did none of these. (In medical practice, this is called malpractice.) What would happen if the principles of good medical practice were applied to healthcare?

Evaluating past evidence proves the following.

    * 1) When any system disconnects the consumers from control of their money, they cannot economize and have no reason to do so. Therefore, with limited ‘supply' and unlimited ‘demand' for health care services, the government must ration, as is done in every country with universal health care. Check out any recent British newspaper.
    * 2) Every cost projection of every entitlement Program ever enacted by Congress has underestimated its true cost. In 1990, the GAO found that Medicare cost 854% more than Congress' original projection. Medicare is now projected to go broke by 2017. If ObamaCare is estimated to cost >$1 trillion, imagine what the actual price tag will be, that our children will have to pay.
    * 3) When government manages anything, the bureaucratic cost explodes at the expense of the public. Before HR 3590, 40% of all healthcare dollars went to the bureaucracy. With the massive bureaucratic expansion enacted by ObamaCare, that number will approach 50%. When you are talking about trillions, Congress is creating an unsustainable waste of our tax dollars.


Root Cause Analysis shows 10 reasons for increased healthcare spending.

See details in "Uproot US Healthcare."

    * 1. New value (care not possible in the past)
    * 2. More people who live longer
    * 3. Actions without evidence
    * 4. Bureaucracy, Inefficiency, Reconciliation, and Regulatory Compliance. This is called the "waste of the middle."
    * 5. Disconnecting consumers from control of their money
    * 6. Rewarding outcomes that we don't want
    * 7. Defensive medicine
    * 8. Adverse outcomes and errors (medical)
    * 9. Money taken out of healthcare legally
    * 10. Fraud, abuse, errors (financial) and embezzlement.


Curative treatment

Clearly, we want to spend money on the first two above. To stop wasteful spending permanently or using medical terms to cure the patient, we need to fix #3 through #10. If action without evidence (#3) wastes money, we should require evidence before spending. Unless a regulation and its accompanying costly Federal bureaucracy are proven to be worth the expense, show them the sunset. If defensive medicine is due to the tort system, replace the tort system. If you want insurance companies to make less or no profit (#9), change how they do business.

Partnering

The American people hate (I do not use that word lightly) being dictated to by government. Our nation was founded on an act of rebellion against what we now have again: a government that ignores the wishes of the people.

The only way to develop a healthcare system that will be acceptable to the populace is by asking them what they want the system to do and what they are willing to do. If government tells people what the system will do for them and to them, Americans will rebel.

Do you want proof? First, note the lowest approval rating for Congress in the history of our country. Second, witness the success of the Tea Party, whose sole unifying concept is its opposition to excess government spending.

With Obamacare being clearly "wrong," what is "right?"

Until we practice good medicine on healthcare, it will continue to decline and we will keep paying with our money and our lives.

http://www.americanthinker.com/2010/10/if_obamacare_is_repealed_what.html

http://books.google.com/books?id=ikUnEJYEqvgC&pg=PA154&lpg=PA154&dq=google+books+Uproot+Healthcare&source=bl&ots=aPrsPPTNWG&sig=sG44A1WuyGaocjh3WCtQ6P8JOrM&hl=en&ei=6a-oTPbnKc-jnge9qMybDQ&sa=X&oi=book_result&ct=result&resnum=1&ved=0CBUQ6AEwAA#v=onepage&q&f=false

[Crafty_Dog]

Doug:

Quite right.

[DougMacG]

"quite right"

I look forward to CCP's comments as well.

The entire book is accessible at the google books link.

The Pledge to America I think compels a new R. House to revisit this issue and at least vote on repeal and replace with something consistent with limited government principles.

[Body-by-Guinness]

You Can’t Keep the Plan You Have
Obamacare is coming to a doctor’s office near you.

Last year, I ordered a CT scan of the chest on a 63-year-old patient whose chest X-ray had revealed a lung nodule. I had no problem getting the test approved by his private insurance company. The radiologist suggested that I repeat the CT scan this year to make sure the nodule hasn’t turned into cancer.

But this year, the same insurance company is denying the test, having clamped down on several elective services while also raising its premiums. This company now has to cover children with pre-existing conditions and can place no lifetime limits on care. It is struggling to preserve its profits as Obamacare kicks in — profits that, to begin with, are only approximately 4 percent of its total revenue.

Next year, my patient will have Medicare. He can’t afford a secondary insurance plan (Medicare Part B covers only 80 percent of most charges), and he doesn’t qualify for Medicaid as his secondary, so he was hoping to join a Medicare Advantage plan — a private insurance plan that seniors can choose to receive, partly at government expense, instead of Medicare. But in 2011, Medicare Advantage is due to be cut $140 billion by the new law, and it is doubtful that the plan he wants will still be available. Harvard Pilgrim, the second-largest insurer in Massachusetts, has just dropped 22,000 patients from its Medicare Advantage plan in anticipation of these cuts. Soon seniors everywhere will have the same problem. In fact, the Medicare actuary estimates that 7 million out of the 11 million people with Medicare Advantage will be set adrift over the next seven years.

One of those patients will likely be my fellow with the lung nodule who needs a follow-up scan.

President Obama clearly hasn’t visited a real doctor’s office recently. If he sat on my office couch, he would immediately discover that real patients are terribly worried about how dysfunctional and expensive all health insurance, public and private, is becoming under the new law of the land. Of course, the problem of spiraling health-care costs and inadequate access to essential services was already happening before, but Obamacare is making it far worse.

My medical office is changing, and not for the better. As I write this, I have a patient waiting in the next room who has to pay cash to see me because his employer’s contribution to his plan has dropped this year, and his deductible has gone up. Many employers are getting ready to dump their employees on the state exchanges in 2014. They are adopting plans that won’t “grandfather in” under the draft regulations of the new law, which mandate low deductibles and low co-pays. I am treating my patient for high blood pressure, which may be due to his worrying over his medical bills. My bill is minor compared to the hundreds of dollars that the laboratory charges him for the routine blood tests his insurance no longer covers.

Next door to this man is a woman complaining about her premiums, which are up 20 percent from last year. She wants to add her 23-year-old son, who has diabetes, to the policy under the new law — but she can’t, because her son has a full-time job and is supposed to get it from his employer. But the employer isn’t offering it, and is prepared to ultimately pay the Obamacare penalty that is supposed to enforce the “mandate” that he provide insurance.

Under the “consumer protections” that just kicked in, private insurers are unable to charge co-pays for preventive services including mammograms, colonoscopies, and vaccines. This sounds good until you consider that when these services are “free,” demand for them will increase, and we doctors are ill equipped to handle such a demand surge. Further, it is unlikely that doctors will receive greater reimbursements to compensate for the lost co-pays — and so they will stop providing these services in droves. Your insurance may pay for your colonoscopy, but you may not be able to find a doctor to perform it.

And things are only going to get worse. Full-throttle Obamacare, which comes into effect in 2014, will promote insurance plans that require little payment from patients out-of-pocket — and thus are easy to overuse. This will remove the brakes from the system. In my doctor’s office of the near future, I expect the waiting room to be clogged with more and more patients even as the government and private insurers limit the tests and treatments I can offer.

Yesterday I saw a patient who just lost his job. He had no insurance, and I saw him for a very small fee. He expects to end up on Medicaid (it will be much easier to qualify under Obamacare), and since I don’t accept it — and more and more doctors are doing likewise — he will likely end up getting his care in the ER. But ERs are already overcrowded, and are not ready to handle more patients.

The president can keep telling Americans that their health care won’t change. But for my patients, it already has.

– Marc Siegel, M.D., is an associate professor of medicine at NYU and the medical director of Doctor Radio at NYU Langone Medical Center. He is a Fox News medical contributor.

http://www.nationalreview.com/articles/248520/you-can’t-keep-plan-you-have-marc-siegel

[ccp]

I agree with all of it except this:

"President Obama clearly hasn’t visited a real doctor’s office recently."

Sure he has.  But he (and his political buddies) doesn't have any denials like the rest of us.

I am also seeing companies starting to deny more and more and pts. benefits being stripped.

This is only the beginning.  Berwick et al are just drooling getting their teeth into cutting what they deem statistically isn't cost effective.

It is all a numbers game.

America is not fooled that 50 million more can be covered and costs and deficits will go down.  Even with the massive rationing they have in store for us.

Private insurers will eventually go under - as planned.

[Crafty_Dog]

"Private insurers will eventually go under - as planned"

This most certainly IS the plan-- and is why we must elect Congressmen and Senators who will defund, rollback, reverse and undo Obamacare and enable the return of the free market to the health sector.

[Crafty_Dog]

A slippery slope to forced euthanasia?
Pressure for legalising euthanasia has been stepped up in Australia by the pro-euthanasia Greens.


It appears that the party of death never sleeps. Already the Greens have introduced their pro-death bill into Australia’s Federal Parliament. The party's leader, Bob Brown, argued that most Australians support voluntary euthanasia. But I suspect most Australians in fact may not have a clear understanding of just what the euthanasia agenda is all about.
They are certainly not getting the full story from the pro-death lobby. There are many misconceptions and myths out there that need to be dispelled. One is that this will in fact be entirely voluntary, with no pressure or coercion. But this is just wishful thinking.

The truth is the right to die implies a duty to kill. Let me explain. We live in a rights-mad culture. Everyone is demanding a right for this or that. But there are no rights without corresponding duties. An officially sanctioned right must be backed up by the legally enforced means to ensure those rights can be carried out. Thus if society goes down the path of legalised euthanasia, this right to die will lead to its necessary corollary, the duty to kill.

Indeed, once a society has said that its citizens have the right to die, it will be forced to provide the means to do so. If a state says there is a legal right to die, logically, anyone can bring suit to ensure that governments comply. Just as today society tells us a woman has a right to abort her own child, so it provides, via medical aid and tax-payer funding, the means to carry out this activity.

In fact, once legalised, it is possible that doctors may one day face lawsuits if they violate someone’s rights by not killing them. As commentator John Leo puts it: “Imagine doctors purchasing malpractice insurance that covers ‘denial of death’ suits. That day may not be far away.”

And as ethicist Leon Kass reminds us, the “vast majority of candidates who merit mercy killing cannot request it for themselves.” But we can count on the fact that the “lawyers and the doctors (and the cost-containers) will soon rectify this injustice. . . Why, it will be argued, should the comatose or the demented be denied the right to such a ‘dignified death’ or such a ‘treatment’ just because they cannot claim it for themselves?”

For all the talk about choice, about freedom to choose, about giving people options, the legal and social legitimisation for assisted suicide will effectively eliminate one option, namely, staying alive without having to justify one’s existence. With legalised euthanasia, the burden will be upon people to justify being alive - we will have to prove that we ought to be allowed to live.

Lest that sound too far out, consider the words spoken in 1984 by the then Colorado Governor Richard Lamm who said, “Elderly people who are terminally ill have a duty to die and get out of the way.” Or recall the comments made in Australia by the country’s then Australian Governor-General Bill Hayden who, thinking of his own advancement in years, spoke of “unproductive burdens” which we need to be “disencumbered” of via euthanasia.

But as Simon Leys (Pierre Ryckmans) has noted, why is Bill Hayden as a senile, incoherent old man in a wheel chair (one day) any less of value and worth than Bill Hayden was as Governor-General? A society that allows such distinctions is one that has “simply forsaken the very principle of civilisation and crossed the threshold of barbarity”.

Moreover, would Hayden set up a test whereby we determine who is an unproductive burden? Will people be forced to give written evidence as to why they should be allowed to remain alive? After all, in a world of scarcity, such proposals are not all that far off. Indeed, some people are calling for such measures already.

Some people, concerned by what they see as a crisis in over-population, have called for a drastic reduction in population levels.

The tone of debate seems to be becoming increasingly shrill. Many formerly uncommitted public figures and organisations are now speaking out in favour of cutting population levels. In recent times, the Anglican Church of Australia has warned of “catastrophic” consequences of global overpopulation. Sir David Attenborough has pushed for lower population in his documentary: “How many people can live on planet Earth?”. And the previously non-aligned Australian businessman, Dick Smith, produced his own documentary, “Population Puzzle”. Smith commented “This is the most important issue I have ever undertaken in my life. I won’t rest until we have a proper plan in place that informs Australians just how many people we can sustainably support in this country.”

It is clear where such passionate “concern” can lead. In the past a number of Australian commentators have argued for draconian measures to cull population, with some claiming that Australia’s population it should be reduced to less than half its present level. Going back as far as the 1990s, the then Leader of the Australian Democrats John Coulter argued that no Australian family should have more than two children. One city councillor even argued that people who choose to have three children should be compulsorily sterilised and forced to pay the government $200 per fortnight.

It does not take much imagination to see that euthanasia will be enlisted to support such population-reduction goals.

Again, this is not far-fetched. In the past Australia’s Economic Planning Advisory Commission (EPAC) has discussed the rising costs of health care for the elderly and in one publication EPAC actually looked at the issue of euthanasia as one option in the whole discussion. There was no talk about alleviating suffering or being compassionate -- the whole proposal centered on cost-cutting measures.

Indeed, it is estimated that around half of all health care dollars are spent on people in their last six months of life. Thus cost considerations are increasingly becoming a major part of the decision-making process. In a recent case of a brain-dead man on life support, a Monash University medical ethicist said that there would be a high cost involved in maintaining the man, so the economic factor would have to be considered in deciding his fate.

American human rights lawyer Wesley J. Smith drives this point home: “If assisted suicide were ever permitted to become a legitimate and legal part of medical practice, in the end it would be less about ‘choice’ than about profits in the health care system and cutting the costs of health care to government and families. The drugs for assisted suicide only cost about $35 to $40, while it might cost $35,000 to $40,000 (or more) to treat the patient properly. The math is compelling, and contains a warning we dare not ignore.”

In a culture where worth and value tends to be measured by the bottom line, the call for legalised euthanasia will likely also be assessed in those terms. Financial considerations will tend to trump other concerns, including the right to life. All the more reason to never allow euthanasia to be legalized.

[DougMacG]

How to Reform ObamaCare Starting Now  - WSJ
http://online.wsj.com/article/SB10001424052748704116004575521770685906984.html
States should steer the mandated health-insurance exchanges in a pro-market direction and dare Washington to stop them.

By SCOTT GOTTLIEB AND TOM MILLER

The Republican rallying cry during this election season has been a promise to "repeal and replace" ObamaCare. The problem is that through at least 2012 President Obama would veto any law repealing his signature health-care legislation. What, then, can Republicans do in the next two years? Look to the states.

After November, more than 30 Republican governors (many newly elected) will have the opportunity to resist the legislation at the state level. They could refuse to implement the health-care exchanges that are the core of ObamaCare. Doing so would force the federal government to step in and run the exchanges for the states—a chore that would slow down federal implementation of ObamaCare but fail to provide any alternative solution to insurance coverage problems.

The more promising option is for governors to perform as much radical surgery as possible on the exchanges until a new Congress working with a different president can do something better. By offering their own market-friendly versions of exchanges, they will establish an alternative to ObamaCare and its one-size-fits-all health plans.

The feds may declare that these exchanges do not comply with federal rules and are not eligible for new federal subsidies beginning in 2014. But the Obama administration will be hard-pressed to find the resources to establish and run its own federal exchanges in time if enough states resist its dictates and appeal to their citizens with a better offer.

ObamaCare intends health-care exchanges to be a regulatory dragnet to trap insurers into offering a single government-prescribed set of health benefits. State-designed exchanges could, and should, do the opposite.

Any willing insurers already licensed to operate in a state should be able to offer plans. Their operating rules would focus on providing better information to consumers, rather than limiting the types of plans available. Exchanges should also enable easier allocation of private payments and public subsidies, simplify enrollment, and reduce transaction costs.

Once inside the exchange, consumers would be guaranteed the ability to renew their coverage without regard to changes in their health status, so long as they remain continuously insured. If individuals want to switch plans, they couldn't be hit with higher costs due to changes in health status as long as they stay within some baseline range of benefits that was largely equivalent to their previous plan. And a new Congress should make sure that consumers shopping in these market-based exchanges get the same tax advantages that employers do, eliminating the bias that now forces people to get coverage from their bosses.

Under this arrangement, there wouldn't be the incentive for gaming the system that exists under ObamaCare, which encourages forgoing coverage until one gets sick, or buying cheap policies and upgrading only after an illness strikes.

Of course, not everyone will be able to afford to purchase insurance in these exchanges. Poor people and those with major medical problems or chronic conditions that make them largely uninsurable would certainly need to be subsidized. But today we already subsidize many of these people through a patchwork of programs.

Taxpayers can provide targeted subsidies through expanded high-risk pools to cap out-of-pocket, risk-based premium costs for the most vulnerable. In the longer term, states could get waivers to "monetize" Medicaid medical benefits and allow these recipients to shop in the same exchanges. Recipients might well prefer a voucher option to Medicaid coverage that pays most providers half as much as private insurance and fails to deliver many of the benefits it promises. Subsidies should flow directly to consumers, rather than to the health plans as ObamaCare required.

The elements of these market-based exchanges are already buried deep inside ObamaCare. But they remain under a lethal dose of regulation that rules out every choice but those made by the bureaucrats working inside the president's "Office of Health Reform."

ObamaCare was not about fixing the insurance market. It was about seizing control of it. Thus it shouldn't be surprising that a new analysis by the Congressional Research Service says that states can use ObamaCare to erect a de facto single-payer system by simply excluding from their exchanges every plan but a state-run "public" plan. "There is no specific language in [the president's health plan] that would prohibit an exchange from denying certification to every private plan that applies," the analysis finds.

California is already headed down this road. Voters have opted for a "selective contracting" scheme in which a five-member board of unaccountable appointees will tightly control which insurers operate in the California exchange.

But other states, particularly Utah, are moving in the opposite direction with their own version of market-based exchanges before ObamaCare's regulations can catch up. The Utah Health Exchange is an Internet-based information portal that connects consumers to the information they need to make informed choices. In many cases, it allows them to buy insurance electronically.

Several other states are interested in establishing similar plans and daring the Obama administration to stop them. Replacing the command-and-control features of ObamaCare with a plan offering consumers a real marketplace is a change many people can start to believe in. And one Mr. Obama would be imprudent to oppose.

Messrs. Gottlieb and Miller are Resident Fellows at the American Enterprise Institute.

[DougMacG]

Scott Grannis - The six fatal flaws of ObamaCare
(Go to the his blog to light up the links at the end: http://scottgrannis.blogspot.com/2010/11/six-fatal-flaws-of-obamacare.html )

In a series of posts earlier this year in which I discussed the growing list of fatal flaws in healthcare reform, I opined that "the defects of this legislation are so massive and pervasive that it will never see the light of day." Arguably, that's still true today, especially as we can now add one more fatal flaw to the list: you don't have to comply with the law because you can get a waiver! To date, 111 firms have been granted waivers by the Obama administration, and the list is sure to grow by leaps and bounds. The very fact that many firms need to apply for waivers is good evidence that ObamaCare is fatally flawed. To celebrate the increasing likelihood of ObamaCare's eventual demise, let me recap the fatal flaws as I see them:

Fatal flaw #1: The penalty imposed for not buying a policy is very likely to be less than the cost of insurance for a great many people. This, combined with the requirement that insurance companies may not deny coverage to anyone with a pre-existing condition, means that a large number of people will forgo signing up for a policy, knowing that they a) will save money and b) can always sign up for insurance if they turn out to develop a serious medical condition. Thus, the actual revenues will far way short of projections.

Fatal flaw #2: The government has no ability to enforce the penalty for noncompliance.

Fatal flaw #3: Mandating that people buy a health insurance policy simply because they are alive is arguably unconstitutional. It is also a way of hiding the fact that young people will effectively be paying a huge new tax in order to subsidize older people.

Fatal flaw #4: Regulating the price which insurance companies must charge for policies, coupled with a requirement that companies must rebate to their customers the amount by which their loss ratios fall below 90%, effectively turns these companies into government-run enterprises and would likely result in the effective nationalization of the healthcare industry. That is a violation of the Fifth Amendment, and of a Supreme Court requirement "that any firm in a regulated market be allowed to recover a risk-adjusted competitive rate of return on its accumulated capital investment."

Fatal flaw #5: A government-imposed restructuring of the healthcare industry can't possibly improve our healthcare system, and is extremely likely to make it worse. As Don Boudreaux has noted, "Trying to restructure an industry that constitutes one-sixth of the U.S. economy is ... so complicated that it's impossible to accomplish without risking catastrophic failure."

Fatal flaw #6: In cases wherein companies find that complying with the law would result in large increases in healthcare premiums that would threaten employees' access to a plan, the Dept. of Health and Human Services may grant a waiver to the company. As evidence of the first five fatal flaws accumulates, and as healthcare insurance companies continue to raise premiums to pay for the unintended consequences of government attempting to regulate an entire industry and hundreds of millions of people, more and more companies are likely to apply for waivers. At some point the whole edifice will come crashing down of its own weight.

I have a more detailed discussion of each of these flaws here, here, here, here, and here.

UPDATE: Lest I be accused of offering only non-constructive criticism, I refer readers to previous posts about the right way to reform healthcare, here, here, and here.

[Body-by-Guinness]

Where’s My Obamacare Waiver?
Everyone should get the break that Big Labor is getting.

More than 1 million Americans have escaped the clutches of the Democrats’ destructive federal health-care law. Lucky them. Their employers and labor representatives wisely applied for Obamacare waivers earlier this fall and got out while the getting was good. Now, it’s time for Congress to create a permanent escape hatch for the rest of us. Repeal is the ultimate waiver.

As you’ll recall, President Obama promised repeatedly that if Americans liked their health-insurance plan, they could keep it. “Nobody is talking about taking that away from you,” the cajoler-in-chief assured. What he failed to communicate to low-wage and part-time workers across the country was that they could keep their plans only if their companies begged hard enough for exemptions from Obamacare’s private-insurance-killing regulations.

According to the U.S. Department of Health and Human Services website, at least 111 waivers have now been granted to companies, unions, and other organizations of all sizes that offer affordable health insurance or prescription-drug coverage with limited benefits. Obamacare architects sought to eliminate those low-cost plans under the guise of controlling insurer spending on executive salaries and marketing.

It’s all about control. If central planners can’t dictate what health benefits qualify as “good,” what plans qualify as “affordable,” and how health-care dollars are best spent, then nobody can. The ultimate goal, of course: precipitating a massive shift from private to government insurance.

McDonald’s, Olive Garden, Red Lobster, and Jack in the Box are among the large, headline-garnering employers who received the temporary waivers. But perhaps the most politically noteworthy beneficiary of the HHS waiver program: Big Labor.

The Service Employees Benefit Fund, which insures a total of 12,000 SEIU health-care workers in upstate New York, secured its Obamacare exemption in October. The Local 25 SEIU Welfare Fund in Chicago also nabbed a waiver for 31,000 of its enrollees. SEIU, of course, was one of Obamacare’s loudest and biggest spending proponents. The waivers come on top of the massive sweetheart deal that SEIU and other unions cut with the Obama administration to exempt them from the health-care mandate’s onerous “Cadillac tax” on high-cost plans until 2018.

Other unions that won protection from Obamacare:

United Food and Commercial Workers Allied Trade Health and Welfare Trust Fund

International Brotherhood of Electrical Workers Union No. 915

Asbestos Workers Local 53 Welfare Fund

Employees Security Fund

Plumbers and Pipefitters Local 123 Welfare Fund

United Food and Commercial Workers Local 227

United Food and Commercial Workers Local 455 (Maximus)

United Food and Commercial Workers Local 1262

Musicians Health Fund Local 802

Hospitality Benefit Fund Local 17

Transport Workers Union

United Federation of Teachers Welfare Fund

International Union of Painters and Allied Trades (AFL-CIO)

Two organizations that appear to be chapters of the International Longshoremen’s Association (ILA).

Several of these labor organizations did not respond to requests for comment about their waivers. But Jay Blumenthal, financial vice president of the Local 802 Musicians Health Fund in New York, did explain to me: “We got grandfathered in” (his description for getting a pass) because “things were moving so fast” and “we need time now to prepare for the law.” In other words: Policy cramdowns first, political fixes later. A supporter of Obamacare, Blumenthal told me he “see no irony, no,” in unions’ having supported the very health-care “reform” from which they are now seeking relief.


Chris Rodriguez, director of human resources at Fowler Packing Company in California’s San Joaquin Valley, sees things a little differently. Fowler pursued an HHS waiver because their low-wage agricultural workers would have lost the basic coverage his company has voluntarily offered for years. “We take care of our employees, and we warned [health-care officials that] if they imposed this, large numbers of workers would lose access to affordable coverage,” he told me. Rodriguez said he’s grateful the firm won a waiver, but he had not lost sight of the fact that the very policies passed to increase health-insurance access are having the opposite effect: “That’s our government at work.”

Indeed, some prominent government officials who lobbied hardest for Obamacare are now also joining waiver-mania — including liberal Democratic senator Ron Wyden, who has been pushing for an individual-mandate exemption for his state of Oregon, and Democratic senator Ben Nelson of Nebraska, who is pushing to waive Obamacare’s burdensome 1099 reporting requirements on small businesses.

Fearful of retribution by HHS secretary and chief inquisitor Kathleen Sebelius, who has threatened companies speaking out about Obamacare’s perverse consequences, many business owners who obtained waivers refused to talk to me on the record. One said tersely: “We did what we had to do to survive.”

A new House GOP majority now has the chance to protect the rest of America from this regulatory monstrosity. We want out.

— Michelle Malkin is the author of Culture of Corruption: Obama and His Team of Tax Cheats, Crooks & Cronies (Regnery, 2010)

http://www.nationalreview.com/articles/253427/where-s-my-obamacare-waiver-michelle-malkin#

[Crafty_Dog]

From today's POTH:

Arizona Cuts Financing for Transplant Patients
By MARC LACEY
Budget cuts ended payments for certain transplants, a decision that amounts to a death sentence for some patients.

No apologies to Sarah Palin were to be found in the article.

[prentice crawford]

Woof,
 Here we go.

 http://www.news.yahoo.com/s/ap/20101213/ap_on_bi_ge/us_health_care_overhaul_virginia

                         P.C.

[bigdog]

A copy of the memo opinion from Judge Hudson:

http://www.vaag.com/PRESS_RELEASES/Cuccinelli/Health%20Care%20Memorandum%20Opinion.pdf

[prentice crawford]

Woof bigdog,
 Good to hear from you, doing O.K.?
             P.C.

[JDN]

From today's POTH:

Arizona Cuts Financing for Transplant Patients
By MARC LACEY
Budget cuts ended payments for certain transplants, a decision that amounts to a death sentence for some patients.

No apologies to Sarah Palin were to be found in the article.

Effective at the beginning of October, Arizona stopped financing certain transplant operations under the state’s version of Medicaid.

Perhaps I missed something, but it seems this is just an example of Arizona trying to cut state (Medicaid) budget expenses i.e. focusing primarily on
poor people without private insurance.  Why is an apology due Sarah Palin?

[Crafty_Dog]

Because she was mocked for saying that there would be panels deciding who lived and who died.

[JDN]

But wasn't she referring to Obama's proposed Health Care plan?  THIS decision is SOLELY Arizona's (Republican Majority Legislature)
decision to save money.  Or do you think Arizona owes Palin an apology for some reason?

Actually, (not my intent here to argue the subject) if we had National Health care many of these poor
and/or uninsured people probably would still be covered.  In this instance, Arizona is indirectly (withholding funds) deciding who can
live and die among those who are either poor and/or have no insurance.  There does not seem to be any other criteria except
ability to pay.  I guess if you can't pay for it, or if you don't have insurance, you are out of luck in Arizona and you will die.   

That being said, someday somebody needs to decide who gets what, many organs are in short supply,
but I question whether it should be decided upon solely by the ability to pay.

[G M]

Man's penis amputated following misdiagnosis

Published: 29 Dec 10 09:10 CET | Double click on a word to get a translation
Online: http://www.thelocal.se/31130/20101229/
Share1006

A Swedish man was forced to have his penis amputated after waiting more than a year to learn he had cancer.


The man, who is in his sixties, first visited a local clinic in Blekinge in southern Sweden in September 2009 for treatment of a urinary tract infection, the local Blekinge Läns Tidning (BLT) reported.

When he returned in March 2010 complaining of foreskin irritation, the doctor on duty at the time diagnosed the problem as a simple case of inflammation.

After three weeks passed without the prescribed treatment alleviating the man’s condition, he was instructed to seek further treatment at Blekinge Hospital.

But it took five months before he was able to schedule an appointment at the hospital.

When he finally met with doctors at the hospital, the man was informed he had cancer and his penis would have to be removed.

It remains unclear if the man would have been able to keep his penis had the cancer been detected sooner.

The matter has now been reported to the National Board of Health and Welfare (Socialstyrelsen) under Sweden’s Lex Maria laws, the informal name used to refer to regulations governing the reporting of injuries or incidents in the Swedish health care system.

The Local/dl (news@thelocal.se)

[Crafty_Dog]

By KARL ROVE
Aprimary task for the new Republican House majority is to undo as many of the pernicious effects of ObamaCare that it can. One of these effects is the spectacle of employers going hat-in-hand to the Department of Health and Human Services (HHS) for waivers from some of the law's more onerous provisions.

In September, HHS Secretary Kathleen Sebelius began granting waivers to companies that provided workers "mini-med" coverage—low-cost plans with low annual limits on what the insurance will pay out. This followed announcements by some employers that they would have to drop these plans because they did not meet the new health law's requirement that 85% of premium income be spent on medical expenses.

By early December, HHS had granted 222 such waivers to provide mini-med policies for companies including AMF Bowling and Universal Forest Product, as well as 43 union organizations. According to the department's website, the waivers cover 1,507,418 employees, of which more than a third (525,898) are union members. Yet unionized workers make up only 7% of the private work force. Whatever is going on here, a disproportionately high number of waivers are being granted to administration allies.

Then, on Dec. 21, Ms. Sebelius announced that insurance companies seeking rate increases of 10% or more in the individual or small group market must publicly justify the hikes under standards set by her department.

Insurance regulation has traditionally been a state responsibility, and 43 states must already approve proposed insurance-rate increases. ObamaCare does not authorize HHS to deny rate increases, but the agency said that if a state "lacks the resources or authority" to conduct the kind of review the agency wants, it will conduct its own.

This proposed regulation will erode the states' dominant role in insurance regulation, centralizing more power in Washington. The HHS announcement also mentioned that it will set different thresholds of what constitutes an "unreasonable" increase for every state by 2012.

The Obama administration's behavior to date suggests that it will not hesitate to take care of its friends. The Senate Republican Policy Committee's health policy analyst, Chris Jacobs, points out that the administration has already given an extravagant gift to the AARP (American Association of Retired Persons), a key player in passing the Patient Protection and Affordable Care Act.

The AARP provided a big chunk of the $121 million spent on ads supporting the bill's passage, as well as $21 million on lobbying in 2009, according to the Center for Responsive Politics. HHS's proposed regulations on Dec. 21 exempted the AARP's lucrative "Medigap" plans from the rate review and other mandates and requirements.

The AARP and other Medigap providers can require a waiting period before seniors with pre-existing conditions have to be covered. Insurers covering those under 65 cannot.

The AARP is also exempt from the new law's $500,000 cap on executive compensation for insurance executives. (The nonprofit's last CEO received over $1.5 million in compensation in his last full year, 2009.) It won't pay any of the estimated $14 billion in new taxes on insurance companies, though according to its 2008 consolidated financial statement, it gets more money from its insurance offerings than it does from dues, grants and private contributions combined. Nor will it have to spend at least 85% of its Medigap premium dollars on medical claims, as Medicare Advantage plans must do; the AARP will be held to a far less restrictive 65%.

It's not hard to connect the dots. The Obama administration is using waivers to reward friends. On the flip side, business executives will be discouraged from contributing to the president's opponents or from taking any other steps that might upset the White House or its political appointees at HHS.

This is not what people had in mind when candidate Obama promised in his acceptance speech in August 2008 to undo "the cynicism we all have about government."

In a speech at the University of Iowa last March, the president heralded health-care reform as "a new set of rules that treats everybody honestly and treats everybody fairly." Determining whether that is true will be another task for House Republicans. They have an obligation to look into this matter, and Mr. Obama can hardly object. It was former Supreme Court Justice Louis Brandeis, whom the president frequently quotes, who wrote in 1913 that sunlight "is the best of disinfectants."

Mr. Rove is the former senior adviser and deputy chief of staff to President George W. Bush.