Yosemite: Just your average government project

Aside

20110727-055307.jpg
Just your average government project.

2800 Solar panels
Producing 12% of Yosemite’s electricity
Saving $50,000.00 per year
Cost $5.8 million in stimulus

And you wonder why the federal government is out of money and needs more debt! It will only take 116 years to recover the expense in savings. What is the life of a solar panel?

Could this kind of genius calculation explain the debt crisis?

What is the best, is our government, issue the EPA, are promoting this project on the local news!

Of Volks-latures:Our future – Sold – to us, by us.

Volks-lature vs Maybach-lature

These early citizen statesmen, tended to relate the effects of everything they did to the impact on themselves, their family and the community.

The collective display that was put on last night by our elected officials shows that we have allowed political privilege to supersede the role of elected legislator. Historically, our elected officials were for the most part volunteers. Up until the mid-1930’s congress operate largely on an alternating 3 month then 6 month period in order to allow the legislators to go back home and tend to their farms, and businesses. As such, they stayed quite engaged in community and reality.

These early citizen statesmen, tended to relate the effects of everything they did to the impact on themselves, their family and the community. Their ideals appeared larger and more discrete. Likely to our mind they also had more character and commitment since they served, often and significant cost, not benefit, to family and business. Of course there was corruption, but that form of corruption was more visible, as the delta between those partaking in graft, stood out like beacons from those who did not.

A citizen statesman returning home to a significant increase in prosperity as a result of his short time in Washington tended to send tongues ‘a-waggin’ if you know what I mean. Today our professional class politician is tacitly expected to find his fortune in the words and ideals he may sell to the most or the richest. Like comparing a Maybach to a Volkswagen Beetle, we have politicians who are the ‘Volks-Vagon’ the people’s car; and those who are the Maybach Laundolet the car where “the customers’ wishes come first.”

In the case of the ‘Volks-lature’, they focus their message and sales pitch more towards the masses. They chose the low-cost high volume strategy and offer to convey as many as possible to the nirvana they seek. On the other hand, we have the ‘Maybach-lature’ who have selected to sell to a very few with much higher margins. Unlike the Volks-lature who feed in the troughs with the rest of the masses, the Maybach-lature have chosen to feed in the food chain of the rarefied air, at the table with the best linen and the finest wine. And in realty they are no different, just existing in a different part of the econ-system.

In the end it is we who are providing their existence and much of the things they do are in fact self-fulfilling activities, calculated to continue their reign and enhance their equity.

You see, for the most part, they both exist to do one thing. Sell us our dreams in return for their livelihood and existence. Sure, some still have ideals and the drive to make a difference, but it is more the sirens song of wealth and power that has captured most of their hearts minds and more importantly – practice. Even the most ideological fall rapidly under the spell of the professional political class in Washington, who control their moments, provide their thoughts and calculate their longevity with a keenness that would have made Mr. Gillette very proud.  The tools of each, are one as with the other, as their weapons are all class focused. For one it is envy – for the other – fear.  In either case, it is the other classes that are the fault, and only theirs can save those that matter!

Overall, it ends up the same for us all regardless of whether we eat at the trough or at the fine table. In the end, it is we who are providing their existence and much of the things they do are in fact self-fulfilling activities, calculated to continue their reign and enhance their equity. It is we who pay for it and it is we who are now suffering for it.

This is one reason I have declared: I am a Mugwump. Further frustrating is the fact that the overall debate continues to be focused on who should get what from whom as opposed to what we need to do for ourselves and our neighbors. There are those that argue anyone that has more should be forced to give it up to all of those that have less. Then there are those who also argue that there are some who need a safety net and that we should provide systems and some government intervention for those who can’t – not those that won’t. See Was Shakespeare Correct.

Looking sharply at the debate you see similar ideals in the grand area but in the graphite at the point of the pencil the line is obscure – not so fine. The real debate is in the definition of who should get the benefits of government intervention and at what point personal responsibility ends and public responsibility begins. Further debate centers on the dividing point between personal philanthropic charity and government mandate over personal property redistribution.

In the end, the biggest problem is that we have allowed our political system to degenerate to the point where the body politic, once a largely part-time and voluntary collection of average citizens – making laws and regulations for themselves as well as their neighbors – and in whom little direct benefit of the laws they passed held influence, has been replaced by a full-time professional class legislature with little influence from the laws they pass and maximum influence, in fact their livelihood, comes from the direct (in the form of compensation), and indirect (in the form of votes and campaign contributions).  It is this that is their lifeblood driving the legislation they make – specific to any and all vested interest.

So whether you are a conscript of the Volks-lature or an acolyte of the Maybach-lature, we have all ended here at the same point. We have been sold a significant bill of goods by those we trusted to protect us and it will, regardless of what they do or don’t do in the next few days, be on our shoulders to again pay the bills. All of our shoulders! Because never in the history of mankind has a political system been able to provide a way for everyone to get everything – with no one doing nothing.

It is a damnable shame!

A Zero Sum Game: When will you actually get it?

We have all become inundated with a daily dose of how unfair the world is to all of us. Thanks to the media in general, and the partisan public relations engines of both parties, it seems we have nothing to worry about regarding our future, other than getting what we want by taking what others have. Or for a select few – and you know who you are – having others take what we have worked so hard to earn.

Oh yeah, some of you didn’t really earn it did you? You got it from your parents, didn’t you? And of course your parents didn’t really earn it either, they took it from the masses. They had the audacity many years, or generations ago, to start a business and be successful. And of course they were successful because people, mostly middle-class people no doubt – the robber barons always sell their insidious goods to the middle class don’t they?

Yes they made their widgets and sold them to the people. And at first it all went well and everyone was happy. The businessmen (robber-barons) made the things we want in the U.S. and we paid them for them and then IT happened…

We found out just how much money you were making, even though each of us only paid a small amount – and at the time that small amount seemed ok. But you committed a heinous crime. You got successful. Not just successful – too successful. You made too much money and you moved up town… How could you?

Then as we complained to our congress people about how you were simply robbing us all, they stepped in and enacted, rules, and laws and taxes to make it fair. So we could get some of our money back in our pockets by redistribution.

And then you made it worse! As your profits went down you didn’t hire as much, in fact you laid off some of us. And then when we bought less because some were out of work you raised prices. Then we could not afford to buy your products as often and your sales dropped and you laid off some of us people.

The Chinese saw your success and your rising costs and they started to build the same product you did. We bought theirs because it was cheaper, and also to teach you a lesson. Soon, you on your own decided if you didn’t find cheaper workers you would be out of business. So you moved your factory to Mexico, or Singapore or China. How could you?

So, we asked our congress-people to fix this again, and they slapped on import duties. Yea, that will show them – and you… But, you both just raised the retail price and we ended up paying more for the same thing. Yea, our wages were not going up as fast as the prices but we had some tricks up our sleeves yet.

Since you and the other businessmen (robber barons) were now hiring cheaper and cheaper workers, we formed unions and made you pay us more and give us more stuff just to work for you. If you didn’t unionize, we got congress to increase the minimum wage and legislate some of the great free things you need to give us just cause we work for you – again we showed you. Now again, you had to pay us what we wanted if you hired any of us. Sure, you could no longer sell much of your product to the rest of the world cause it was too expensive and the quality was no longer any good because we don’t really have to meet any standards for you to pay us, but you were sharing your prosperity with us weren’t you? It’s only fair!

Of course, you again raised your prices to cover these new costs and you complained that you were no longer competitive and foreign products were taking the market and your company could not export anything either because of price and quality. Look, when we saw that what you said was true we stood up to help didn’t we? We are not uncaring after all! We came to your rescue and we asked congress to give you some tax breaks and subsidize our purchase of your products.

I know what you’re going to say! Sure, all of our taxes went up to pay for the cost of the programs to give the tax breaks and subsidies – but look even you understand the money has to come from somewhere. And rightly so, most of it came our of your share. That’s why you raised your prices again isn’t it? When will you learn, Mr. Robber Baron, that you can’t fool us! Yea, you say you’re not making any money, but we don’t believe you! You live uptown. You made a lot of money. We see your cars, your yachts, your corporate jets… So what if we are only paying a few cents profit for your product when we buy it, you sell a lot of it to us don’t you. Look you owe us! Without us you would not exist. What do you take us for, common workers? We don’t do common labor – don’t you get it! We are Americans, not some third-worlders. We don’t work cheap buddy. It’s about time you figured that out. And don’t try to hire those illegal immigrants either. We won’t let you exploit them like you used to exploit us!

So you better get a clue. It is not important if you can produce a product cheap enough so we can afford to buy it. We don’t need your product. We can buy the one from India, or Sulawesi. America is the import master of the world don’t you see? Why do you think we have such a huge trade deficit – we have bought over $11 trillion more in goods than we sold since 1972 – only American’s can do something like that bub!

You know we don’t need your kind in America – I mean you manufacturers, and oil producers, and steel companies, and commercial fishers, and lumber companies, farmers, and miners, and others like you. You are not nice to the environment, you harm animals, you exploit workers, you make noise, and you don’t create the kind of jobs we deserve. We went to college you know. We deserve high paying non-labor jobs anyway. We buy all that stuff from other countries anyway. Let their people not go to college and do that hard messy and dangerous work.

You know, it doesn’t matter anyway. When we want more, we will just increase regulations, increase taxes – on you, and get our legislators to increase what the government owes us, and what you have to pay for, or give to us – that is if If we debase ourselves enough to actually work for you. Yea sure, you can try to increase the prices but you know what we will do about that – now don’t you?

Was Shakespeare correct: is the fault within ourselves?

Cassius:
“Why, man, he doth bestride the narrow world.  Like a Colossus; and we petty men walk under his huge legs, and peep about to find ourselves dishonorable graves.  Men at some time are masters of their fates:  The fault, dear Brutus, is not in our stars, but in ourselves.”

Julius Caesar (I, ii, 140-141)

Historically, the interpretation of this dialog has been, Cassius, a nobleman, is speaking with his friend, Brutus, and trying to persuade him that, in the best interests of the public, Julius Caesar must be stopped from becoming monarch of Rome. Brutus is aware of Caesar’s intentions,  and is torn between his love of his friend Caesar and his duty to the republic.  Cassius continues by reminding Brutus that Caesar is just a man, not a god, and that they are equal men to Caesar. They were all born equally free, and so why would they suddenly have to bow to another man? On another level this phrase has been interpreted to mean that fate is not what drives men to their decisions and actions, but rather the human condition.

In this case, Cassius was arguing that the problems of Rome’s people were a result of the human condition.  And that if the avarice of Caesar, and his cohort, could be eliminated then the condition would itself improve.   This historical diatribe is truly the argument of the ages.  If frames the argument of many, if not all, of the issues of our time.

Whose responsibility is _________?
(fill in the blank with almost any word or phrase)

Is our health care – our responsibility or that of the collective society?  Is our survival in terms of food, housing, clothing, creature comforts of heat and air conditioning that of ourselves, or the responsibility of those that have more than we?  On whose shoulders does the success of our society reside – to each according to their need from each according to their ability/initiative – or – to each according to our ability/initiative and from each to those in need according to our humanity and generosity?

Looking across our political landscape, today, we clearly are a nation divided by our ideologies and views of how the world should work.  We seldom exercise compromise either, outside our ideological castle (see my article On Tolerance) or, it seems, even within it (see my recent article, Consider a Mugwump).  For quite a while, I have felt we were a nation of thirds:  one-third hard left, one-third hard right, and a third in the middle, the middle drifting either way based on the issues and ideologies at hand.  But is that really the case?

For those that confidently inhabit the edges of the bell curve, they have the utmost convictions that their ideological purity is what is important for solutions to be correct and just.  RINO and DINO labels tarnish anyone foolish enough to consider a position with even the slightest hint of grey.   To argue such a grey area can often lead to more than chastisement, but often to banishment. How have we arrived at this locus?  Is it that the middle is growing, and the tea-party despite the attempts at marginalization or reinforcement from both sides is representing a new and still defining set of values and frustrations?

Macbeth:
To-morrow, and to-morrow, and to-morrow,
creeps in this petty pace from day-to-day,
to the last syllable of recorded time; and all our yesterdays have lighted fools the way to dusty death.  Out, out, brief candle!  Life’s but a walking shadow, a poor player, that struts and frets his hour upon the stage,
and then is heard no more. It is a tale told by an idiot, full of sound and fury, signifying nothing.

Is it possible that the root cause of our problems is in fact ourselves?  That our economic and ideological problems are an extension of our innate nature?  Are we now so enamored with our own Colossus, that we believe we are due all?  That we should all have anything we want, whenever we want, and the consideration that achievement of these things rests firmly in the divine rights passed from the stars and our own demands and that all others who have should – no,  must – grant part of their ‘haves’ to the rest of us who don’t and remain wanting?  Clearly, for some, this is not the case – I do not intend to damn any segment of mankind in this discussion.

Is this who we are today?  If so, when did we change?  Did we ever change, or have we really been like this all along?  Interestingly, the discussion has been alive and in debate throughout recorded history.  From Socrates to Aristotle, from Shakespeare to Twain, all have debated the relative merits and shortcomings of man.  Are we improving, degrading or simply continuing our journey with lots of sound and fury – signifying nothing?

While for the most part, I do not know much – in the end, I do feel I know this!  With all the talk of the crushing federal debt, and for many states like California crushing state debt as well, and the debate over tax cuts for the rich, or the role of unions in our demise – or their role in our success, or entitlements vs. safety nets, or our trade deficit or competitiveness in the world – whatever the topic; we are doomed to the creeping and the sound and the fury if we don’t change our own dynamic.  If we continue to pay, as an example, $68 dollars per man hour to produce a widget in the U.S. that others in the world are willing to produce for $28.00 per man hour, we will remain an acquiring not supplying nation.  If we continue to demand ideological purity, then the best men, or women, for the jobs will never come into office.  If we abdicate our own responsibilities to ourselves and each other in favor of some small group, who will for the most part be corrupted like all who gain power and control are corrupted, we will end up as we are today and as it appears we have been for all time.

We can continue to allow our elected officials to flummox us with the same pandering, platitudinous, piffled phraseology like;

  • the deepest recession since the great depression; or
  • this will provide business the certainty they need to...; or
  • we will continue quantitative easing and strengthen the economy… (Fed-Res speak for inflating the currency)

Each of these phrases, and many, many more just like it, are geared to obscure, conflate and confound the public into continuing to creep in our petty pace from day-to-day and not upset the status quo.  But it is the status quo we must upset or we come once again to the sound and fury part.  Like a big circle, or perhaps a loop by Dr. Moebius, we always seem to be ending right back at the same point.

At the beginning I asked a question.  It is clear to me that I cannot answer the question for anyone other than myself.  I ask you to find your own answer to this question.  And if you find the same answer as I, then let us all change ourselves.  In doing so we may change others and perhaps cut through the creeping, the sounds and the fury and signify something after all!

Afforable Care Act and Disease State Programs: What is the future?

As the Patient Protection and Affordable Care Act (ACA) continues the trek down the long tortuous hallway to become implemented law, a misquoted line, from Hunter S. Thompson, comes to mind. (I am using one of the misquotes)

“Hollywood, a long tortured hallway where thieves and pimps run free and good men die like dogs, for no good reason. There is also a bad side” – mis-quote of Hunter Thompson

We have all become complacent as to the unintended consequence of government deeds.  In researching my book, “The History and Evolution of Health Care in America: The Untold Backstory of Where We’ve Been, Where We Are, And Why Health Care Needs More Reform,” In a small way, I have become some kind of dubious expert on the historical record of the unintended consequences of the actions taken by our government, and many others, related to healthcare in America.  For some time now, I have been concerned that there may be very significant unintended consequences of the Affordable Care Act, particularly relating to special disease state programs offered by both states, and the federal government like; HIV/AIDS, hepatitis, heart disease, COPD, diabetes, etc.

ADAP as an Example

(While mandated rebates sounds like a great thing for consumers – it is not.  Federally mandated rebates are one of the drivers increasing the cost of medications to all of us and a major cause of the lack of transparency in drug pricing. I discuss this extensively in my upcoming book.)

An example of the kind of program I am referring to in California, would be the AIDS Drug Assistance Program (ADAP).  The California AIDS Drugs Assistance Program is a prescription drug coverage program funded, in part, by Title II of the Ryan White CARE Act created in 1990 by the US Congress and reauthorized in 1996, 2000, 2006 and 2009.

The ADAP program, provides medication purchase assistance to people suffering with AIDS, based on specific eligibility criteria.  The program sets limits on income, viral load, CD4 count, etc.  Depending on the criteria, eligible participants receive assistance ranging from; payment of insurance co-pay – up to and including full coverage of the medications proscribed, as long as the drugs are covered under the state’s extensive ADAP medication formulary (the approved list of medications).

You may be eligible for California ADAP services if:

  • You are a resident of the State of California
  • You are at least 18 years of age
  • You have a HIV/AIDS diagnosis (Requires Physician’s Letter and recent CD4 Count and Viral Load)
  • ADAP will only process prescriptions written by a licensed California physician/prescriber
  • You have limited or no prescription drug benefit from another source
  • You have a Federal Adjusted Gross Income of not more than $50,000.

ADAP is not all that California provides under the Ryan White Care Act to Californians suffering from AIDS, but it makes up the largest of the Office of AIDS’ (OA) expenditures – roughly $434 million of $1.3 trillion in total budget.  Of the $434 million number about 30%, approximately $126 million, comes from the California State General Fund, approximately 23%, $100 million, comes from the Ryan White Care Act funds, and 48%, $210 million, comes from mandated rebates from drug manufacturers

The Ryan White Care Act ¹

The Ryan White Care Act is the United States largest federally funded program for people living with HIV/AIDS. The act sought funding to improve availability of care for low-income, uninsured and under-insured victims of AIDS and their families.

Unlike Medicare or Medicaid, Ryan White programs are “payer of last resort”, which fund treatment when no other resources are available. As AIDS has spread, the funding of the program has increased. In 1991, the first year funds were appropriated, around US$220 million were spent; by the early 2000s, this number had almost increased 10-fold. The Ryan White Care Act was reauthorized in 1996, 2000 and 2006. The program provides some level of care for around 500,000 people a year and, in 2004, provided funds to 2,567 organizations. The Ryan White programs also fund local and State primary medical care providers, support services, healthcare provider training programs, and provide technical assistance to such organizations.

In fiscal year 2005, federal funding for the Ryan White Care Act was $2.1 billion. As of 2005, roughly one-third of this money went to the AIDS Drug Assistance Programs (ADAP) which provides drugs for 30 percent of HIV-infected patients. The primary activity of ADAP is providing FDA approved prescription medication.

 So,  why should we be concerned?

One of the major reasons for the enactment of The Ryan White Care Act, and the subsequent creation of ADAP programs in the first place, was the inability of those with this tragic disease to get adequate coverage from their insurers.  A diagnosis of HIV/AIDS became a red flag to insurers that either precluded coverage, if it was a pre-existing condition, or HIV/AIDS patients found their policies dropped for a myriad of other reasons mostly due to lifetime limits and trumped-up problems.  As a result, people with a diagnosis of HIV/AIDS could not get insurance.  The Ryan White Care Act and the various ADAP programs offered under this federal program through the 58 states and territories have done a wonderful job of helping treat, help to arrest the spread, and improve the quality of life of those with this horrible disease.  I think, this is undisputed.  The Ryan White Care Act and ADAP have been unqualified successes.  One of those rare occurrences within governmental programs.

President Obama’s 2012 HIV/AIDS budget requests $21.4 billion in funding for  Domestic HIV/AIDS activities. – Kaiser Family Foundation Report on HIV/AIDS Policy 

Having spent a good deal of time, for the past few years, in Washington, DC traveling the same long tortured hallway Hunter was claimed to have spoken about, I have developed a pretty good understanding of what is making things work there now-a-days.  The main issue on everyone’s lips, not just Republicans, is reducing spending.  The last re-authorization of Ryan White, in 2009, was a heated, and anger riddled, argument.  There were those then (including many leading democrats like Senator Kennedy) that did not want to reauthorize the existing legislation.  They were advocating creating new legislation that better dealt with the realities of the disease as it stood today.  But like most entitlements, the constituents, and their very vocal advocates, did not trust the government to bring them the program that they wanted.  While, they all agreed that the Ryan White Care Act was not great, they felt it was better than what they might get.  In the end, the political pressure drove the legislation to be reauthorized and extended four more years.  Determined to not see this, in their view, unwieldy and ineffective Act reauthorized one more time, Kennedy’s staff made sure that the 2009 re-authorization legislative language included a sunset provision that prohibited another re-authorization down the road.

 Well Things Have Changed – Haven’t They?

The biggest problem with AIDS today is that people no longer feel guilty nor afraid of the disease!
– Britt Weinstock, Senior Health Policy Advisor – Congressional Black Caucus

Well they have and have not.  Illustrated in the statement made by Britt Weinstock (one of the brightest and dedicated individuals I have met in Washington DC) in a meeting with me in 2007, the overall nature of the nations focus and funding for HIV/AIDS had changed.  It was then getting increasingly difficult to get attention in congress and squeeze out the necessary funding.  When the Ryan White Care Act was originally conceived the nature and treatment of HIV/AIDS was that of a terminal illness on the rise to a national epidemic.  Today it can be a treatable, if chronic, condition.  Then people diagnosed with AIDS had an expected lifetime of a few months to 8 years.  Today, with treatment, they can live mostly full and productive lives.  Like most other chronic diseases we face today, as the prognosis for HIV/AIDS has improved the lifetime cost of treatment has increased many fold.

As far as the Affordable Care Act goes, if this legislation continues to be enacted, it will prohibit insurers from barring HIV/AIDS patients from getting insurance to cover their needs – a seemingly good thing.  In fact, many states have already set up special funds for patients with pre-existing conditions and temporary high-risk insurance pools as an interim solution till the ACA takes full effect.  In the May revision of California Governor Brown’s 2011-12 Budget, the Office of AIDS are projecting saving some money by changing ADAP eligibility so that some of the covered patients shift into the states Pre-Existing Condition Insurance Plan (PCIP).  This program is a federally funded program and does not, at this point, receive any funding from the California State General Fund.  With cuts to Medicare, Medicaid, and Social Security now in open discussion, will such programs be deemed as necessary?  With Ms. Weinstock’s statement in mind will American citizens agree with the priority of additional funding?

As a result of the historical empathy and generosity of Californians, HIV/AIDS patients in California currently receive some of the best program benefits in the US today, and as a result, the public health crisis from HIV/AIDS has been contained and almost all patients in California have access to quality care and the required medications.  The question is – for how long?

As was seen in the 2009 re-authorization of Ryan White, many politicians did not want to be on the wrong side of the HIV/AIDS or GLBT activist communities and as such even the lion of the senate yielded and agreed to their demands for re-authorization.  But the game has definitely changed!  Before the choice for politicians was either, I agree to fund these programs or, since there was no insurance or other option for HIV/AIDS patients – they would die.

Today, the question politicians have to answer from the general public is; “Why do we need these types of programs? We just passed ObamaCare and everyone now gets insurance, or subsidies to buy insurance!”  The question for HIV/AIDS and other special disease state patients is, will politicians, having many fiscal-crisis related issues now the focus before them – without the ability to just print money to pay for them as we have in the past – have the strength to stand up to the rest of the fiscally troubled middle-class and say…

“Well you see…  Ahhh…  Well…  the Affordable Care Act…  aaaa, really didn’t cover everyone they way we thought…  And you see…”

Or will they just not re-authorize Ryan White and other special disease state programs like it and push it all off to MediCare, Medicaid and the ACA or the states.

How long can politicians in Washington, DC and Sacramento, continue to fund these needed programs?  How long will the politicians have the courage to stand up and continue in light of the looming fiscal crisis and its impact on seniors, disabled, children and under-served middle class and lower class Americans?  The question to the politicians really will be,

“Why do we need these programs if we just passed ObamaCare and spent trillions on it?”

“Politicians could use the answer, “Well….  Ahhh…  You see – aaaaa…..  Well it’s like this, you see, the Affordable Care Act really didn’t protect everyone!”  Some politicians may see it as a safer action – a more re-electable action – to not reauthorize these programs because; unlike before, when the choice was either we authorize these programs or people die because they can’t get insurance; now, to the vast majority of Americans, it seems no longer necessary because we just spent trillions to ensure that everyone has health care –  didn’t we?  Can a politician stand there and tell Mr. and Mrs. Middle Class America that the health needs for this increasing but still minority population of Americans is greater than their own fiscal needs?  And more importantly will these middle class Americans have the willingness to accept it.  Do we truly think, that we can fund everything we want by just taxing the richest 1%, 5%, or 10% of Americans?  If you look at the numbers, despite the rhetoric, we probably can’t.

This is a tough one!  Regardless of how anyone feels about the ACA – and almost no one actually likes it on either side – just like most other government programs, it is designed for somewhat near the lower-middle of the bell curve.  The people on the extreme edges of the bell curve get either poor or no benefit from these programs.  This is a fiscal reality.  The cost of the benefits for the people in the covered range of the bell curve where the programs are offered, has to be born by all the rest of the population.  The fringes never really get completely covered, even though the center of the bell is not in the middle-point of these curves.  So, we will always likely need specialty programs if we are going to commit to have the government take care of the most fragile among us!

It remains to be seen if this will be the case.  As I said, I am very concerned at this point that the Givernment of the People, By the People, and For the People is still able to do this, unless we rethink what this commitment means and more importantly, how to accomplish it.  We need to fundamentally restructure healthcare and rework, from scratch, the supply chain.  Perhaps we need to look not just at the government, but beyond government as well, to our individual relationships with, and responsibilities to, each other if we hope to find some answers.

—————————————————————————————-

¹ Wikipedia contributors. “Ryan White Care Act.” Wikipedia, The Free Encyclopedia. Wikipedia, The Free Encyclopedia, 19 May. 2011. Web. 8 Jul. 2011.

Joblessness: So which is it?

Perhaps I am old fashioned!  Perhaps I am an anachronism!  Maybe I need to move more rapidly into the modern era!  During my morning routine – “Oh, God, I got a routine…  When the heck did that happen?”  

Anyway, my angst over finding I have a routine aside; when I was reading my morning paper, the headline of the business section this morning shouts,

June jobs outlook turns around”.

– San Ramon Valley Times Business and Technology Section July 8, 2011

Immediately, I felt pretty good.  We have all been looking for some good news – Right?  With the general irritation over the Casey Anthony trail, the wall street ups and downs, the problems with California’s fiscal health, the concerns over the rising cost of health care, the debt ceiling debacle, Japan’s nuclear crisis, Arnold and Maria, comets, global warming, the effect of sunspots –  a little good news is certainly a welcome relief – isn’t it?  Well, at least that was what I was thinking as I went into my office to login to my computer.

As I was basking in the glow of good news and logging in…

Almost immediately when I login to my PC, my glow is harshly doused. First I see,

“A dismal report showing the U.S. added the fewest jobs since September soured Wall Street’s optimism over the strength of the economic recovery, sending the Dow sliding more than 100 points on Friday morning.”

then almost immediately following,

“President Obama to deliver statement on the June employment report at 10:35 a.m. ET”

So which is it?

Is it just me, or, have we seen a constant, reversible pattern over the past few months?  Sometime we see, glowing economic statements telling us how everything is just hunky dory, only to have them followed in a day, or so, later with dismal news based on the exact same indicators.  Other times, we get the dismal news first, and a few days later, great articles about how the economy is improving so much.

All this prompts me to have a few questions:

  • It this just bad reporting?
  • Is this propaganda and good reporting?
  • Or do most just think we are all stupid?

if we all work together to help each other then, most of the big problems can get solved much easier and much, much cheaper

I am not sure myself which of the above, if not all of the above, is the right answer.  But for me this – along with a myriad of other things I now see day-to-day, from reporting (both print and broadcast), to business matters, to personal interatcions, to governmental actions (at all levels) – makes me feel like nobody really gives a darn about each other, or themselves, anymore.  If we really did care, how in the world would we allow these kinds of things to keep happening?

So now on top of the problem that I now realize I have become my father, not that he was a bad guy at all – in fact he was a great guy – and I have a routine –  mostly meaning I am getting old – I now have to worry about what the deeper cause of this growing phenomenon is.

Let’s make a deal!

I will make you all a deal!  If you agree with me and try to help me cope with the growing angst and stress, I will help you find an answer to fix what is wrong.

If we have a deal, post a comment and tell me what it is you think is the problem.  Who knows maybe someone else might have an answer along the way and they might be good enough to respond.  See, I believe if we all work together to help each other then, most of the big problems can get solved much easier and much, much cheaper.

Do you want to try?

Health Care Mandate and the Commerce Clause (Part 4)

The patient protection and affordable care act purchase mandate –
A four-part series on the relation and effects of the Commerce
Clause to Health Care

By: Thomas W. Loker

The following is the last segment of a four-part series where author, Tom Loker, explores the impact of the Commerce Clause on Obama-Care.

Image by Author

PART FOUR: A Time for a Fresh Look

In the last article, Sliding Down the Slope, we discussed how continuing court decisions and additional legislations have continued to push us further and further down the slope of federal oversight and control of increasingly larger parts of our daily lives. We also looked at how our historical interpretation of the commerce clause has muddied the water as to where the responsibility of the states to regulate our actions ends and responsibility federal government begins. Now, let’s look at this, from an everyday person’s perspective, as to what this may mean related to the current debate over the constitutionality of the PPACA mandate for all to purchase insurance.

 Who’s Right?

However, going back to the issues the framers were attempting to protect against, is it consistent with the framers view that the expansion of liability, as it is promulgated under this act, should so far abrogate personal responsibility as to the outcome of bad choice and bad behavior? Merely arguing that there is some benefit to a consumer does not make the clause relevant. The original expansion argument under Filbern that any commerce can be derived to be interstate commerce no longer seems to be a reasonable inference. Intrastate commerce itself is not innately subject to federal jurisdiction. The principle motivation to protect the consumer is not, in-and-of-itself, sufficient justification to regulate intrastate commerce, nor does it immediately give rise to the notion that all commerce is interstate.

The issue of the application of the Commerce Clause related to PPACA is even more muddled in that one of the principled arguments against this legislation is that it does not open the state-centered administration of health insurance nor does it provide an open and competitive interstate market. Most, if not all states, specifically regulate insurance provided within their borders. The inability of consumers to purchase insurance plans across state lines itself should stave off the argument that this is in some way per se interstate commerce and subject to the clause. The historical Filbern argument is even more difficult to rationalize in the absence of a transportable open state policy mandate.

Intrastate Regulation and Fairness

A reach to enforce the mandate for purchase of insurance under the auspices of the Commerce Clause is a hard one, indeed, in that the benefits to consumers that could be argued in the justification to impinge individual freedoms and economic liberties for the greater good are lost when the purchase itself is confined within intrastate regulation. Effective argument can only be made based on interstate availability of insurance whereby the policies available across the state line are comparable in standard of fees and services provided and transportable from state to state after purchase. An item, good, or service that is purchased in, and only is consumable, within one state and is subject only to the regulations of the state where the service was purchased and consumed in no way logically rises to become interstate. Further, any argument that attempts to provide nexus for an interstate affect, as in the case of Filburn, should be deemed to interpretation in the same manner as was done in Lopez.

A Voice Speaks Out

Specifically in relation to the Commerce Clause; let us agree with Justice Kennedy and walk a slow and careful path. In every case possible, let us demur to the authority of the state and the preservation of individual rights and liberties.

Finally, most recently in hearings of the Judiciary Committee relating to the debate for the need of tort reform legislation pursuant to the PPACA debate, one congressman, who shall remain nameless, while arguing why Tort reform was not necessary for the federal government to consider, made the following argument: He stated that in his long history as a strong states’ rights advocate, he had never seen an instance where health care was provided in a clinical setting and where the clinic existed simultaneously in two states, or between the borders of two states. As such, the provision of care was always done within the border of one state and therefore could not be interstate. The congressman further stated that if the person received care in one state, while a resident of another state, and that the care was provided under the licensure, regulations and authority of the state where the service was provided, that this was still no more interstate commerce than any other commercial action as prosecuted within a state on a daily basis.

Clearly, the evolution of the argument of the Commerce Clause, as providing a basis for regulations governing protection to consumers, can from time to time provide a broad and expedient method to justify such federal powers; these powers are innately the proverbial slippery slope. The framers carefully crafted the Constitution to preserve individual liberties and freedoms above all others. To allow expansion of federal powers under the aegis of the Commerce Clause, which has happened over the past few hundred years, is one of the more dangerous areas of law we have today. As such, full and unfettered caution must ensue.

The Judge Steps Up

Justice Kennedy wrote,

“[T]he Court as an institution, and the legal system as a whole, have an immense stake in the stability of our Commerce Clause jurisprudence as it has evolved to this point. Stare decisis operates with great force in counseling us not to call into question the essential principles now in place respecting the congressional power to regulate transactions of a commercial nature. That fundamental restraint on our power forecloses us from reverting to an understanding of commerce that would serve only an 18th century economy, dependent then upon production and trading practices that had changed but little over the preceding centuries; it also mandates against returning to the time when congressional authority to regulate undoubted commercial activities was limited by a judicial determination that those matters had an insufficient connection to an interstate system.”

Let us agree with Justice Kennedy and walk a slow and careful path. In every case possible, let us demur to the authority of the state and the preservation of individual rights and liberties. I also suggest we only allow federal regulation when such regulation is meant to provide a mechanism by which it can normalize controls on behalf of consumers among states; where interstate commerce requires only federal control for solution or provision of benefit; or where it is necessary to regulate the actions among the states, not among or between the citizens of the states. Let us be mindful that the actions of the states themselves will not harm the public good or unfairly impost taxes, duties or levies between the states or with other nations or Indian tribes.

This treatise, outlied in these four articles, is just one lay person’s read of this issue. If we cannot explain it to every man and woman. Perhaps the reach is simply too far!

Please remember to post a comment below.  If you like the article please let others know about it!

Consider a Mugwump

To those that know me, I am clearly a conservative, also seemingly staunchly Republican.  But I harbor an inner secret – a secret that I share with a number or Americans that have gone before – perhaps well before.  Americans like:
Image from Wikipedia

I am a Mugwump!  What is a mugwump?  Well you need to let historical records be your guide, not modern interpretation.  If you use Wikipedia, where I got the image I use in this piece, you would come to the conclusion it was a bunch of Republicans who betrayed their party to vote for a democratic candidate.  In much of the modern literature, you will see a similar characterization.  You need to go back and read contemporaneous descriptions.

While it is true the name was applied to those Republications like Mark Twain (Samuel Clemmons) who felt the corruption of then Republican presidential candidate James G. Blaine in 1884, was beyond their limits and instead they campaigned and voted for Grover Cleveland.  Soon, this movement rapidly began to encompass members of both political parties deciding to vote the best man as opposed to the party line.  The most notable Democratic rise of “mugwumpery” was during the election of Teddy Roosevelt in 1901.

Why do I think we need more mugwumps today?  Perhaps, it is the constant cry for political purity I am reacting to.  I find myself, more and more, irritated by those seeking their political solace in the wrapping of party purity.  Party purity is always a much easier choice – isn’t it?  Simply swallow the syrup and be content with your choice.  If you do that little thing, we will assure you that you will get exactly what we, I mean you want.  No worries!  We will take care of it all.  Don’t pay any attention to the man behind the curtain.

This has worked so well for both parties throughout my lifetime, most people can’t contemplate any other way.  The divisions in ideology have gotten progressively further and further apart!  There is one problem – it’s never worked for me!

Mugwump Revelation #1

I voted for Jerry Brown…  There I said it, although I have said it before as well.  I voted for Jerry, because I have come to know him personally and professionally and his actions undermined the convenient image I allowed to be crafted by the media of “Governor Moonbeam” many years before.  I found him refreshingly pragmatic, dedicated, committed to concepts much larger than himself and highly principled.  Most importantly, I learned I could trust that he would do as I expected – not always as I want.  That is for me, and should be for all of us, highly prized in a politician.

Mugwump Revelation #2

I consider Don Perata (the President Pro Tempore emeritus of the California Senate) a good friend.  If I had been a resident of Oakland, I would have voted for him as well – for the same reasons.  I have found him to be highly dedicated, pragmatic and committed to issues bigger than himself as well.  Like Jerry, he is – from my viewpoint- predictable and willing to listen and assimilate contra-posing viewpoints.

So, I have been damned and ridiculed by some for these positions, but I feel I am a stronger man for it and more importantly I feel we are a stronger California and country as well.  I am fortunate that I was raised to have good self esteem, and a strong personality so I don’t have a problem saying scr– them to those who have attacked me on this front.  Like Twain, I will pick who I feel is the best person to fulfill the task in  front of them, regardless of party and opposing ideology.

Sure there are some ideological positions that are selection points but they are not all inclusive.  Now, I simply have become able to look deeper at the candidate and find out where we agree and focus there as opposed to vilifying where we disagree.

I shout – I am a mugwump – and I am proud!

More should be mugwumps, in my opinion.  If we had more mugwumps we may have less, and more effective government because ideological pandering would no longer be profitable.

So, in the end I ask you: Consider a mugwump!  Perhaps you have an inner mugwump yearning to be free!

Health Care Mandate and the Commerce Clause (Part 3)

The patient protection and affordable care act purchase mandate –
A four-part series on the relation and effects of the Commerce
Clause to Health Care

By: Thomas W. Loker

The following is the third segment of a four-part series where author, Tom Loker, explores the impact of the Commerce Clause on Obama-Care.

Part Three: Sliding Down the Slope

The Dreaded Slipery Slope

At the end of the last article, Simple Issues – Complicated Problems, we were discussing some of the earlier expansions of the federal reach under the commerce clause and one landmark case, Wickard vs. Filburn, which strains many ordinary people’s cognitive grasp.   There are some other significant legislations and court decisions that take this strain to a new level – perhaps venturing into lands, heretofore, exclusively explored by the venerable Rod Sterling of Twilight Zone fame.

Two Sides of the Same Coin

The Pure Food and Drug Act of 1906, made law that the liability for addiction and potential harm of a nostrum was in the hands of the person who purchased it not the manufacturer

In the late 1880’s, the rise in power of monopolies and cartels was having a deleterious effect on the population.  State laws provided effective controls intrastate, but the lack of solid legislative protections for the patent medicine manufacturers interstate was leaving them open to both economic and physical damage. The so called patent medicines were not protected by patent at all. Patents mandated disclosure of materials and methods so instead these manufacturers relied on trade secrets and brand protection.  Brand protection on an interstate level was the root of the problem for the patent medicine men.  In this mix grew one of the most dangerous cartels, the Proprietary Manufacturers Association, the makers of patent medicines.  While most states had forms of trademark protection, it was effective interstate protections that the Proprietary Association effectively lobbied for, and congress passed, with the Trademark Act of 1870.  Enacted under the authority of article 1, section 8, clause 8 alongside the Commerce Clause (clause 3), the Trademark Act allowed the members of the Proprietary Association to receive additional protections fostering their rapid growth and providing an instrument that allowed them to secure their brands interstate without having to disclose their formula or ingredients.  The effect on the population was devastating, not so much as to the economic impact, but to the addictive and deadly nature of the hidden ingredients in these nostrums. The effect on congress was even more troubling as the association’s power grew exponentially and soon they controlled 80% of all newspapers in the U.S., and with that and other contract-related devices, they had substantially gained effective legislative control.

Trademark Law Found Unconstitutional

As part of the political battle taking hold to reign in this emerging problem, the initial Trademark Act was challenged and found unconstitutional because it failed to make any reference to commerce with foreign nations, among several states, or with Indian tribes.  Moreover, the court found that the act made no mention of “the character of the trade to which it was to be applied or the residency of the owner.”   The battle continued with the Trademark Act of 1881, and then later the Trademark Act of 1905.

In addition to the Trademark laws that were effectively lobbied on behalf of the patent medicine men, the Sherman Antitrust Act of 1890 was another step in  the government’s battle to protect the citizenry.  Created to control the anticompetitive and harmful actions of cartels like the Proprietary Manufacturers Association, the Sherman Act provided a framework to protect consumers from anticompetitive behaviors of cartels, monopolies and trusts.  Reflecting the political climate of the day, and the power of the Proprietary Manufacturers Association, the Sherman Act politicians were virtually unwilling to use the law until Theodore Roosevelt’s presidency fifteen years later.  Specifically justified under the Commerce Clause, the Sherman Act and the extensions that followed like the Clayton Act, Robinson-Patman Act and other pieces of law began to leverage the Commerce Clause as a means to argue for and extend the reach of federal regulation in areas of interstate commerce, particularly when it was for the good of the consumer.

The Control of the Patent Medicine Industry

Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373 (1911) established that Retail Price Maintenance (RPM) was per se illegal and helped to interrupt the significant control the patent medicine industry was exerting over retailers of the period.  The tenant of the per se illegality of Retail Price Maintenance remained black letter until recent years.  Recent rulings like GTE Sylvania (1977) and Leegin Creative Products, Inc. v. PSKS, Inc., 128 S. Ct 2705 (2007) have begun to reverse these long standing decisions as reconsideration by the courts are again questioning the underlying basis of authority under the Commerce Clause.

Like Wickard v. Filburn, the creation and enforcement of the Sherman Act was motivated by the desire to protect the public.  Unlike Filburn, the Sherman Act stays well within the logical confines of interstate commerce to provide its authority for the protection of the consumer. It also serves to establish a limited framework for its use.  This act provided an indirect method by which to limit harm to consumers being wrought from the Proprietary Manufacturers Association.  This indirect method also became necessary and appropriate because the courts at that time did not recognize an ability to assess the manufacturer of an items liability mainly because the consumer made a reasonable choice.

As seen codified in the enactment of the Pure Food and Drug Act of 1906, much of the liability for the addiction and the potential harm of a nostrum was not in the hands of the manufacturer, but in the hands of the person responsible for its purchase. So, as long as the manufacturer made the consumer aware of any of a list of specific potentially “harmful” ingredients it was thought to be held harmless.

Civil Rights Act—Interstate Normalization

The Commerce Clause has repeatedly been used to help legislate behaviors at the federal level.  After the passage of the Civil Rights Act of 1964, the Supreme Court issued several rulings supporting the use of the Commerce Clause in regulating enforcement of discriminatory behavior in businesses.  In the case of Heart of Atlanta  v. United States, 379 U.S. 241, the court ruled that Congress could regulate a business that served mostly interstate travelers.  More interestingly, in Daniel v. Paul, 395 U.S. 298 (1969), the court ruled that the regulation of recreational facilities was permitted because three out of four items sold at its snack bar were purchased outside of the state thereby subjecting the facility to the jurisdiction of the federal regulation under the Commerce Clause.

Again, it is clear that the intention of the act itself was to protect consumers against discrimination based on race, religion, or national origin.  The intention of this particular legislation is clear and understandable.  For the everyday person, the argument endorsed in Daniel v. Paul becomes problematic in that it smacks of interpretation driven by outcome.  For most readers, it is very hard to swallow that the Commerce Clause comes into play because some or even most of the items sold in a related activity may have been subject to interstate purchase.  This stretch makes it hard to find any tacit alignment that bolsters the rest of the arguments many of which appear weak and overly broad.

Gun Free School Zones

Gun-Free School Zones v. Lopez, the Supreme Court was faced with a challenging decision.  A 12th grade student had been convicted of carrying a concealed handgun into a school in violation of the Gun–Free School Zones Act of 1990.  The lower court found that in Wickard v. Filburn the Court had ruled that Congress was exercising its Commerce Clause power to police local economic activity because the individual states were powerless to regulate it themselves. More specifically, this was determined to be the case because in the opinion of the court only the federal government was able to manage the national wheat supply and control prices.  The lower court reasoned that if you extrapolated the same arguments to acts of gun violence because crime negatively affected education, congress could conclude that crime in schools clearly affected commerce; therefore it ought to be federally regulated.

Nationalizing Police Power

One can rapidly come to the conclusion that if this in fact were true, the entirety of all police power in all states could be nationalized because all crime therefore has some impact on interstate commerce. In this case, the Supreme Court overturned the lower courts verdict.  Justice Thomas, in his concurring opinion, argued that allowing Congress to regulate intrastate, noncommercial activity under the Commerce Clause would confer on Congress a general “police power” over the entire nation.

Clearly, once again, the intention was to find some way to allow the federal government to help protect the citizenry from harmful acts.  While the intention was and is noble, the argument that this is an applicable extension of federal power under the Commerce Clause simply does not hold.  In allowing these stretches to carry our normal imagination to such levels that old Rod would be proud.  Mr. Sterling started each show with the quote, “You’re traveling through another dimension — a dimension not only of sight and sound but of mind. A journey into a wondrous – land whose boundaries are that of imagination. That’s a signpost up ahead: your next stop: the Twilight Zone!”  The difference between Mr. Sterling’s excursions and the commerce clause debate, are that the ramifications of this mind trip have very significant  consequences on each of us, and ultimately the health care we will be able to
access.  In the last and final article we will discuss the Patient Protection and Affordable Care Act. (PPACA)