Month: September 2009

A brilliant piece of analysis. I'm unsure about the full implications of the "not a dime" pledge (I hope David's right). But I am sure about the political strategy: get universal healthcare now, begin the process of cost-cutting, get insurance exchanges on the ground and running … and do it all in as inclusive and moderate a way as possible. I think Obama will pull this off – not easy when a third of the country seems to have lapsed into total ideological hysteria. Our job then will be to hold his fiscal feet to the roaring fire.

Maybe not as red as Drudge believes. A reader writes:

On the other hand, he has pushed a regime of natural resources nationalism reasserting state control over a number of once-privatized oil and gas companies.  He has used Russia's hydrocarbon base for political purposes—as a lever with the Europeans, in particular, and as a lash against the lesser states of the old Soviet imperium. He is what my Russian friends call a "Gebist," namely an alumnus of the state security regime who believes in secret government and doesn't hesitate to use dirty tricks to accomplish his political objectives, particularly to frustrate or eliminate critics. But of course that was just as true of the Czarist Okrana as it was of the KGB. 

No, in fact our Neocon friends and Dick Cheney feel so threatened by Putin because his thinking and his world are a near mirror image of their own. He aspires to restore Russia to a position of power and influence first in Europe and then in the world, but he seeks this not in the service of any ideology, but rather from a stance of Great Nation Conservatism.  He carries no particular brief for Israel, but Israeli-Russian relations have arguably never been closer than they are today (as witnessed by Bibi's secret trip to Moscow this week). 

But on almost every prong, Putin could be glorified in a Russian language edition of the Weekly Standard, making the appropriate name changes along the way.  Putin's no commie. He's the Neocon in the Kremlin.

He was one of the greatest minds of modern time, a founding father of computer science, and his legendary breaking of the Enigma Code may have been a tipping point in the struggle against Nazism. Few men have contributed so much to human learning or to his country's survival. But Turing was persecuted into suicide by the homophobia of his time and barred from entering the US because he was a homosexual (now America reserves that distinction to homosexuals with HIV). Here is the story of his death:

In January 1952 Turing picked up the 19-year-old Arnold Murray outside a cinema in Manchester. After a lunch date, Turing invited Murray to spend the weekend with him at his house, an invitation which Murray accepted although he did not show up. The pair met again in Manchester the following Monday, when Murray agreed to accompany Turing to the latter's house. A few weeks later Murray visited Turing's house again, and apparently spent the night there.

After Murray helped an accomplice to break into his house, Turing reported the crime to the police. During the investigation Turing acknowledged a sexual relationship with Murray. Homosexual acts were illegal in the United Kingdom at that time, and so both were charged with gross indecency under Section 11 of the Criminal Law Amendment Act 1885, the same crime that Oscar Wilde had been convicted of more than fifty years earlier.

Turing was given a choice between imprisonment or probation conditional on his agreement to undergo hormonal treatment designed to reduce libido. He accepted chemical castration via oestrogen hormone injections which lasted for a year. One of the known side effects of these hormone injections was the development of breasts, known as gynecomastia, something which plagued Turing for the rest of his life. Turing's conviction led to the removal of his security clearance, and barred him from continuing with his cryptographic consultancy for GCHQ.

Every now and again, we should remember how brutal the persecution of homosexuals was for so long, how counter-productive, how many lives were ruined, and how a great man like Turing could be reduced to suicide by the oppression he lived with on a daily basis. And so it is a good thing that Britain has now offered a formal apology to Turing – if fifty years too late. Here are prime minister Brown's words.

Most lawyers who have written in disagree with this reader. A sample:

"Simply put, the federal government has no jurisdiction over the vast, vast majority of medical malpractice actions, which are nearly always filed in state courts, pursuant to state statutory or common law."

It would be more precise to say that the federal courts have no such jurisdiction. I do not see what would prevent Congress from enacting tort reform on the national level.  No doubt it could pass constitutional muster under the Commerce or General Welfare clauses.  This could be done in (at least) 2 ways: 1) Congress could simply pass a law that says no health care provider in the U.S. shall be liable for non-economic damages over a certain amount.  2) Congress could also incentivize the states to change their laws to enact tort reform by conditioning eligibility for federal health care money upon tort reform. This is what was done with federal highway funds to get all the states to raise their drinking ages to 21.

I do agree with this attorney (and the researcher you linked earlier) that tort reform is a red herring in terms of real cost-cutting measures, so I urge you not to devote too much precious space on the Dish to it.  But you are also right that every little bit helps, so it should be part of the discussion.  I suspect the primary benefit of putting tort reform on the table in the health care debate is political – if it gives cover to a few Blue Dogs or moderate Republicans to vote for the reform, then it could have an impact far beyond its discrete utility.

Another reader:

Your commenter from Texas is wrong — the Commerce Clause of the Constitution (Art. I., sec. 8, cl. 3) gives Congress the power to regulate interstate commerce.  Under well-established Supreme Court jurisprudence, this is pretty expansively construed to include almost anything that has some effect on interstate commerce, even if the activity in question is intrastate in nature. This is how the federal government can pass environmental laws, criminalize drug possession and distribution, etc.  Of course, some conservatives decry this as an unwarranted expansion of federal power, and the Rehnquist court went so far as to rule parts of the Violence Against Women Act unconstitutional on the grounds that there is an insufficient connection between violence against women and interstate commerce.  I'm guessing that medical malpractice would pass the interstate commerce threshold, however.  Oh, and the Supremacy Clause of the Constitution (Art. VI, par. 2) makes federal law the supreme law of the land — any statute Congress passes regulating medical malpractice would trump state law (assuming the federal statute is otherwise deemed constitutional).

Another lawyer mostly sides with the original reader:

Your reader from Texas is absolutely right.  Tort law (much like contract law) is and always has been a state issue.  It always amazes me to hear these self-proclaimed federalists on the right scream for tort reform at the federal level, when any federalist with the slightest bit of legal training would immediately understand that this is a state law issue, not a federal one.

Additionally, you're wrong to say that it's not a reason to exclude tort reform from the discussion.  Federalism is suppose to be at the heart of American conservativism, a respect for the constitutional order.  There's nothing in Article I, Section 8 of the federal constitution that would give Congress the authority to enact tort reform (as an aside, I think there is a rather decent federalist argument to be made that health care reform should be left to the states, the Federalist Papers describe the State police powers as governing "health, welfare, and morality").

Additionally, no one is thinking of the long term consequences on this.  If the federal government finds some way to effectuate tort reform (and, honestly, I could see this being an issue that the US Supreme Court could use to severely curtail the power of the federal government, if it was so inclined), you would open up a whole new category of cases for the federal courts.  Your Texas lawyer reader is right, these cases are filed in state court under state law.  The only way you can get into federal court is if you have diversity of citizenship (meaning the plaintiffs and defendants are from different States) or you have a federal question.  These are typically not issues that the federal district courts should be dealing with, they are more properly the realm of state courts.

The only way you make this work is if you tie tort reform to funding.  And I just can't see that going over well with anyone at any level of government.

Jamaica's near-psychotic homophobia has claimed a Western victim, a British diplomat:

A note was beside the body. Police sources revealed yesterday it read: "This is what will happen to ALL gays." It was signed "Gay-Man". It also described Mr Terry as a "batty-man" – insulting Jamaican slang for homosexual.

Matt Welch pokes a hole in Obama's logic:

Stepping aside from the welfare-for-illegals debate (which is what animates most interest in the topic), my question is this: If the government is coercing John and Jane Healthy to buy insurance so that the rest of us have to pay less money for their emergency room visits, on what planet does the same argument not apply to Juan y Juana Undocumento? (Or, if you prefer the real reason for forced insurance-buying, why should only the documented uninsured cross-subsidize their elders?) If we're really going to penalize twentysomethings for not buying insurance–and recall that as a candidate, back when he opposed Hillary Clinton's mandatory insurance plan, Obama said "To force people to get health insurance, you've got to have a very harsh penalty"–doesn't this mean that illegal residents will essentially enjoy an exemption from state sanction?

DiA makes a few good points in response to Noah Millman:

America took a specific approach in the aftermath of 9/11. Neoconservative American leaders believed that terrorism was fundamentally a type of proxy warfare carried out by hostile states. So we responded by turning two anti-American regimes into failed states between 2001 and 2003. (Well, one was already pretty much failed, but we double-failed it.) That was the wrong approach. An alternative approach, advanced by some at the time, was to view terrorism as a phenomenon that mostly emerges out of states that are already failed or failing. The relevant military approach is counterinsurgency, to help turn failed states into sustainable states, rather than the other way around.

That approach has been much more successful than the Rumsfeld strategy. It may be too late, at this point, to salvage anything like the goals which a counterinsurgency approach would have targeted in Afghanistan in 2002. And maybe we wouldn't have achieved those goals anyway. But it would have been the right way to fight the war, and we should keep that in mind the next time we get into a similar conflict. John Nagl's book on counterinsurgency analogises it to "learning to eat soup with a knife." Matthew Yglesias points out that eating soup with a knife is incredibly tedious, and should probably be avoided where possible. Even so, in case we ever do need to eat soup with knives again, it'd be a good idea to remember the tricks we've learned so far, and that banging away as hard as you can doesn't work.

The latest Drudge headline describes Putin and Chavez as "reds". Putin a commie? WND is accusing Valerie Jarrett of being a communist. And Van Jones is also, apparently, a communist. Are we really back in the 1950s?

Inserted into Pat Buchanan's column on how ugly American politics has become:

We saw it earlier on display in August, when the crowds that came out for town hall meetings to oppose Obama's health-care plans were called "thugs," "fascists," "racists" and "evil-mongers" by national Democrats.

We see it as Rep. Joe Wilson shouts, "You lie!" at the president during his address to a joint session of Congress.

"You Lie!" Get the bumper sticker that immortalizes American opposition to Obama

We seem not only to disagree with each other more than ever, but to have come almost to detest one another. Politically, culturally, racially, we seem ever ready to go for each others' throats.

Heh. Drudge is now linking to WND?

Jon Henke suggests a few Republican healthcare proposals. His second thought:

Absurdly restrictive licensing barriers to providing even rudimentary care make health care very, very expensive.  Any parent can tell you children's ear infections are about as common as weekends.  And they're about as hard to diagnose, too.  Yet, instead of just picking up the amoxicillin over the counter and giving it to the crying child (20 minutes, tops), parents have to spend a very substantial portion of a day trying to see the doctor (and kids never have ear infections during regular doctor's hours) and getting a prescription filled.  That's insane.  It doesn't take a decade's worth of medical training to diagnose an ear infection.  So let's have a more graduated licensing system, with vocational schools teaching the lower-level diagnostics and treatments.  Let's expand the Physician's Assistant and Nurse Practitioner classifications (a good start), so that more people can provide more health care options (supply) at lower prices.

On a related note, Peter Suderman recommends this white paper by CEI.