More Challenges to the ACA (Obamacare)

No Taxation Without Representation!

No Taxation Without Representation!

From Boston Massachusetts

By now, we all know that the Supreme Court upheld the insurance mandate of the Affordable Care Act (ACA) also known as Obamacare.  To recap, 26 states brought action to have the mandate, declared as an unconstitutional expansion of federal power under the commerce clause, the necessary and proper clause, and as a minor point its taxing authority.  The Supreme Court agreed with the states and found the mandate unconstitutional under the commerce clause, and the necessary and proper clause. However, in what many felt was a stunning decision by Justice Roberts­—and judicial over reach, the court upheld the mandate as a Continue reading

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The Supreme Court Decision: It hurts to be wrong-but it hurts more to be right and still wrong!

Now that we have all heard the decision by the Supreme Court on the Patient Protection and Affordable Care Act (Obamacare), perhaps it is time for some reflection.  I know as I read the decision Thursday morning, while I was waiting in the queue preparing for a radio interview on the issue, I felt both vindicated in my initial analysis, but also left wanting and inadequate for not seeing the sideways tax justification for its declared constitutionality.

First a recap

There were four questions heard by the Supreme Court in this case. Continue reading

The wheels of justice not only turn slowly they often confuse the common man

If you want to listen to the lengths modern law and its practitioners, lawyers, go to spin reality and obscure common sense to convince courts that which otherwise normal people would deem ludicrous, just go to and listen to yesterday’s oral arguments on the Tax Anti-Injunction Act part of the Affordable Care Act (Obamacare) Supreme Court review of its constitutionality.

It is interesting to note that the Solicitor General, representing the government, seems to be schizophrenic as he attempts to argue for the Obama administration’s position that the court cant here the case because of the act—as the President does not want the decision to come till after the election—and on the other hand in representing the position of the government (the people in general) he tells the court that he thinks the court should hear the case.

Another point to note as it has very particular relevance is that in his argument yesterday, he describes the assessed fee for not purchasing insurance, under the mandate clause of the act, is a tax.  Tomorrow he will be arguing that it is in fact a tax.  This schizophrenic position has been confounding the government’s position since they debated the law and passed it in the first place.  In arguing why the case can be heard, Solicitor General, Donald Verrilli, argues that the penalty is not a tax for the purpose of the Tax Anti-Injunction Act.  Tomorrow he will argue that the “penalty” is in fact a tax to justify the federal government’s position that it can levee it and therefore it is not violating state’s rights.

It is very important to note that like congress and the president, the power of the judicial branch, including the Supreme Court is granted, loaned if you will, from We, the people of the United States.  As such, if the decisions rendered make no sense to We, the people, then it is either because they are wrong or not crafted to reflect well on our intentions as a people.

We need to begin to exercise our responsibility as the grantors of these very important and solemn powers and demand that all decisions and arguments be rendered with a standard of language that we can all understand and does not obscure whether or not our constitutional rights are being upheld.

I encourage everyone to take the time to listen to the arguments in the first person, not as reported by others.  Yes they will take a combined six to nine hours but to allow others to police our rights is to grant them the power to help obscure the elimination, or neutering, of our rights.

To quote and old friends mother, “Pay attention, you can learn something from a fool!”  I worry that in the end the fool will be us!

Supreme Court to hear arguments on Obamacare: An enigma, based on a canard, wrapped in a conundrum.

Enigma, based on a canard, wrapped in a conundrum!

March 26, 27, and 28 2012, become the next significant dates in the future of the Affordable Care Act (ACA or Obamacare).  It is on these dates a little over two weeks from now that the Supreme Court will hear arguments both challenging the constitutionality of part of the legislation and arguments as to why the court should uphold the legislation. For most of us on both sides of the aisle, involved in the debate over healthcare reform, we see this as an enigma, for widely opposite reasons, as to how we have arrived today at this point.

For those of you that are interested in this current debate, you can find a number of places to read the arguments, or you can simply read someone else’s interpretation of the arguments.  Here, are some links:

My advice to you is, don’t rely on others interpretations, read the source documents for yourself.  Everyone, including me, are bringing their own bias to their review; some unintentionally, many intentionally.  This has become the partisan issue of this decade.  None of these arguments is a simple read for the non-lawyer.  I would argue that it is the view of a non-lawyer, the view of a common citizen that is now most required to be heard.  The lawyers now are so wrapped up in the history of all judicial actions, and their arguments are both driven by, and necessarily constrained by, the rulings that have preceded; the legal principle of stare decisis—Latin for stand by the decision—the obligation for the court to uphold what has gone before.  It is now, that someone, not a lawyer, needs truly to ask what is the right principle.

As James Madison wrote, “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” This
constitutionally mandated division of authority was “adopted by the Framers to ensure protection of our fundamental liberties.”

I am not a lawyer, and I have my own biases.  I write this, not to tell you what to think, but to tell you how I have chosen to understand this issue.  I hope you will use this as a stimulus to plot your own quest for an answer.  We are at a point in our history that if we do not reengage as citizens, in an active role, in the formation of our governance, we will find that the government that we end up with, will be consumed by forces we do not want, nor can we afford.   The power of our “constitutional republican” form of government is based that the power comes from the people, is enacted by our representative people (the extension of us, not a special or elite class), and is for the benefit of us, the people. We are now at a critical juncture, where we, as a people, need to review the decisions we have allowed to be made and expanded like weeds in an uncultivated field, over the past seventy years.  We need to determine if what we now have accurately reflects what we intended; and if not, we need to no-longer allow the subtle expansion, and extension of federal powers, to continue indeterminately.

I am not arguing if we do, or we do not, agree with the constitutionality of the mandate in the Affordable Care Act.  That argument should come, but it needs to come after we determine if the precedent decisions, beginning with the pivotal case of Wickard v. Filburn reflect what we intended: and if it does not, then the pending arguments will continue to leave us sliding down the slope.  If it does, then we all must now accept the ramifications and understand the fundamental change to our current constitutional republican form of government that will fall out of these next actions.

For a review of the historical actions that have led to the current belief that the Federal Government can enact such a law, feel free to read my prior articles: Health Care Mandate and the Commerce Clause Articles, Entitlement vs. Safety Net: It’s not a matter of degree!, U.S. District Court of Appeals “Reaches” for the answer to the purchase mandate, and ACA, Politics, Mandates and the Commerce Clause.

The Arguments

As the Patient Protection and Affordable Care Act was passed, the controversy and the challenge began immediately.  Within hours of passage, states’ legislatures and attorneys-general began filing actions to block its implementation.  Some of these actions were new state laws that helped limit the laws effect.  But, the more effective challenges were the suits filed by the states to block the federal law’s implementation.

Numerous arguments were originally made to challenge the law.  Arguments that the act violated the constitutional right of privacy, violated the free exercise of religion, and even violated the thirteenth amendment prohibiting slavery, along with many others, were made.  As the cases have moved through the judicial system, the plethora of arguments has continually been pared down to a remaining few.  In a little over two weeks, the Supreme Court has agreed to hear a subset of the original arguments.

There are now two main questions pending from the original challenges and two additional questions posed by the court itself.

  • Remaining Questions
  1. Does the Individual Mandate clause exceed congress’s enumerated powers?
  2. Does the expansion of eligibility of Medicaid to include all legal citizens less than 65 years old and earning less than 135% of Federal Poverty Level (FPL)—approximately $37,500.00 per year—force the states to implement what is federal legislative power thereby violating the separation of powers principle?
  • Additional Questions
  1. Does the Tax Anti-Injunction Act bar the court from hearing the case?
  2. Is the mandated coverage constitutionality question severable from the remainder of the act?

Supreme Questions

In reading through the briefs and the summaries, available through the links above, I see the arguments breaking down this way. On the side to overturn the legislation, the arguments are framed as to whether, or not, the original intention of the commerce clause in the constitution, grants this right to the federal government, or does it remain as a right of the people i.e. the individual states.  The arguments for the act to be upheld seem to me based on legal tricks and gimmicks to justify the extension of the power based solely on the extensions that have gone before.  Perhaps this is not fair but I believe the fundamental question needs to supersede those decisions that have gone before, with which I think most Americans would also disagree.  I think it is mere trickery to cite one bad ruling as the basis for another if the root decision is in question.

Despite the tricks and histrionics on both sides, the basic argument comes down to, is it the federal government, or the state government, that have the authority to enact  legislation governing personal behavior.  The main argument for this federal right is the precedent cases, not the root argument of what the Commerce Clause actually means.  For me, it is this framing of the debate that is now the problem.  If the arguments are bound by the principle of stare decisis, then I believe the logical conclusion will be a 5 to 4 decision in favor of upholding the mandate in the ACA.  If the issues revert to the principal determination of whether, or not, the commerce clause was framed to grant any of the rights, now assumed by precedent, to the federal government, then I think we will have a 5 to 4 decision overturning at least the mandate portion of the law.  And, without the mandate, most believe that the ACA law becomes moot.

The secondary argument made by those in favor of the mandate follows the “everything now is interstate commerce” logic because if people do not conform to this mandated behavior then their actions become a fiscal drain on the rest of us, because either the industry, or the government now must go provide for their needs, and the cost will get passed back to the rest of us.  But, this argument is a canard.  The cost to us for lack of action by others is a real cost, but it is predicated by a government action of over forty years ago that mandates that we are going to provide the services in the second place when the individual fails to take appropriate steps to be responsible for their own needs in the first place.  By the way, I am not talking about eliminating a safety net.  We need a safety net!  Safety nets should be provided for the helpless.  What we have today is not a safety net, it is an entitlement, and while some helpless get benefit, predominantly it is providing support for the clueless and the worthless.

The recent Birth Control debate is a timely example.  Forget the religious argument; this is mere political theater at this point.  The argument goes like this.

Someone, employers or insurance companies, i.e. us due to cost shifting, must pay for birth control for women because it costs too much and they cannot afford it.  They will have sex and some will get pregnant.  They will then have babies because they cannot afford, or do not want, to get abortions. Then the government will have to pay to birth these children and support the mothers and their children causing a larger fiscal drain than the cost of birth control itself.

This is a canard because the requirement for the cost for the voluntary pleasurable act of sex, a biological drive, that may result in pregnancy and birth of a child, only places the cost of birth and support of the mother, and child, on us, because we have chosen to accept the responsibility of these costs in the first place.  I am not arguing whether or not we should do this.  I am simply saying we made a choice to do this, and to take the responsibility for the act off the participants and place it squarely in our collective laps.  To swallow the argument that one now begets the other is to believe that the requirement for us to absolve the participants of their personal responsibility and accept the burden of their actions is somehow inviolate and must remain so for all time.  This is simply false.

The humanistic, moral and ethical implications aside, we should be under no perpetual obligation not to revisit the original decision as to who is responsible for what in society.  There are many other cultures around the world that do not accept this responsibility at all, and often these acts result in poverty, pain and in some cases death to mothers and children.  We choose to be more humanistic, and believe ourselves more moral and ethical, and have chosen to believe that we are obligated to support those that will not support themselves.  Understand I am not arguing we should not do these things, I am just pointing out that this decision is both cause and effect on many others we now face.  It is political gamesmanship to present one side of a justification as fait a compli, this is routinely done in the body politic these days, and often fools us into limiting the debate and choices, yielding ineffectual results.

Another argument by the supporters of the ACA is based on the following quote,

“Opponents of the health care law say that if it is upheld, then government can force people to buy an American car or eat broccoli.  But, a person can opt not to drive a car or eat vegetables: no one realistically can opt out of health care.”

This argument follows, what is called in sales, “the Reverse Ben Franklin Close.”  In effect, this technique is geared to obscure the argument, by saying that you can be forced to buy a car and to eat broccoli if you are also forced to buy healthcare insurance, but unlike the others, you do need health care.  In effect, leaving the impression that they are not equivalent and therefore, the worry is not valid. The technique, not the argument, obscures the real issue.  Yes, you almost certainly will need healthcare as you live, and your need will grow proportionally to the length of time you live. But, the argument is that we have to pay for your healthcare not the fact that you need healthcare and don’t need broccoli or to drive.  We don’t pay for your car or vegetables.  That is ultimately the key question.  It is not the benefit of the ACA. The question is, at what point does a safety net come into play to serve the needs of the helpless.  How do we define the helpless?  And, how do we filter out the burden of the clueless and the worthless? Currently we have chosen to propound the philosophy that all people are now entitled to healthcare, regardless of their personal choices or life planning.  We do not as yet entitle people to a car of free vegetables.  The worry by some is that this is coming next.

Does the Individual Mandate exceed congress’s enumerated powers?

This question has become the key question and the key argument for, and against, the viability and continuance of this legislation.  Is the federal government authorized to require citizens to purchase health care and in effect penalize them in the form of a tax or a penalty if they do not buy insurance?  The crux of the argument, for this federal power, is a U.S. Supreme Court case that was argued in 1942, Wickard v. Filburn, 317 U.S. 111.  I have written about the case in my article, Health Care Mandate and the Commerce Clause. I will not rehash the case here but encourage you to go read the article and read the link to the case.

In reading this case, and the other cases that piggybacked on top of Wickard to justify the expansion of federal power, I have come to my own conclusions.  As you read those articles, you will find clearly what I believe.  The question is not what I believe, it is what you believe, and more importantly, what do we, the people, believe is the appropriate border line between where the state’s power begins and the federal power ends.

Does the expansion of eligibility of Medicaid to include all legal citizens less than 65 years old and earning less than 135% of Federal Poverty Level (FPL)—approximately $37,500.00 per year—force the states to implement what is federal legislative power thereby violating the separation of powers principle?

This issue in the end is a non-issue.  The crux of this argument hinges on one of the same tenants as the Mandate—where do the federal powers end and the state powers begin.  This argument began at the formation of the constitution in Philadelphia, and has continued to rage since the formation of the government, and the election of George Washington as the first president.  It was the main factor in the initial fractionalization of the founding coalition government in Washington’s first term, into one that had the federalists, headed by the strong central government vision of Alexander Hamilton, on one side, and the republicans, headed by the anti-monarchists, state’s rights principals of Madison and Jefferson, on the other side

Medicaid is a federal program.  In fact, Medicaid is an extension of Social Security, as is Medicare.  But, if you listen to the current administration they want it both ways.  On the one hand, the president calls Medicaid a state program, but, on the other hand, he wants the federal government to set the rules.  The state governors clearly and uniformly call Medicaid a federal program, and since it is breaking the banks of the states, would prefer to remove the expense from their books.  The conundrum is because in 1965, as President Johnson was framing the extension of the Social Security Act, the legislators know that they had to make Medicaid a “state” program or it would violate the separation of powers principles.

Does the Anti-Injunction Act bar the court from hearing the case?

This argument was raised in the case I discuss in U.S. District Court of Appeals “Reaches” for the answer to the purchase mandate.  In essence, there is an argument that the court should not be able to hear the case, because this act prohibits courts from preemptively enjoining any federal collection of tax revenue until after the revenue is collected.  The base argument is the court cannot enjoin the federal revenue stream until there is real harm.  I actually think the premise of this argument restricting courts below the Supreme Court is valid.  This act provides a check on the courts by eliminating a mechanism where lower courts could effectively shut down the federal government by strangling its cash flow.  I do not feel the same way at the level of the Supreme Court, in that, if it also binds the Supreme Court, the law would grant an unequal power to congress to prevent the Supreme Court from ruling on the constitutionality of some laws prior to harm being done. The Supreme Court is supposed to be the peoples effective check on the powers of congress to create bad law. I don’t think most of the justices are inclined to agree that Congress can pass a law that prohibits them from reviewing congressional actions.

Is the mandated coverage constitutionality question severable from the remainder of the act?

This is another interesting set of arguments and important to those arguing for and against the legislation.  When congress wrote this law they specifically excluded a clause that would allow for any section of the code that was found unlawful, or unconstitutional not to affect the other provisions.  So, on the face it would be argued that it was the intention of congress that all part of this law stands together, and if one part falls they all fall.  Of course, the counter argument is that since there is no statement that says that it all stands as one and it is not dividable on the merits then it must be severable.  I believe this argument is window dressing for the most part.  I believe the justices will rule with a significant majority that the law is severable.

In the end, the main piece is the Mandate. If the mandate falls, for the most part, the law falls.  If the mandate stands, than the law stands: another step in the additional extension of power to the federal government will occur and despite the contrite arguments from both sides, this new precedent will become the stage for another expansion later on.  If the mandate stands, Hamilton and his federalists would have been thrilled, and Madison,  Jefferson, and their republicans, would have been horrified.

The conundrum is that despite our best intentions, intelligence, humanity, economic analysis, and strong convictions, we have now created a major problem based on fundamental disagreement over what the founders intended and whether we are to stay true to this intention or if we should feel free to change it at will.  Frank Zappa once said, “The crux of the biscuit is the apostrophe!”  (There may be a few of you that actually know what this was in reference too, and for those that do, I apologize for the original context. If you know feel free to post in the comments area. I will post the explanation in a few days if others do not.)  I am using the statement to illustrate that the apostrophe of this conundrum is at the point that helping some people becomes detrimental to all people.  Spock said to Kirk, “Sometimes the needs of the many outweigh the needs of the few, or the one.”  This is a loaded statement, as the needs of the many may be affected in very dangerous and deleterious ways by catering to the needs of the many.  Sometimes, as in this case, society gets to the point where the definition of what is needed needs to be clear and it is imperative to prioritize the fundamental needs and eliminate the extraneous wants.

In the end, we are faced with an enigma, based on a canard, wrapped in a conundrum!  I hope we have the national and personal character to address the problems and find real resolutions.

 Note: I hope this article at least provides a process for you to seek your own answer.  I am sure once again we will be much divided, but perhaps the arguments can become fundamental and appropriate, and no longer tangential, and irrelevant. I ask you to come back and post your thoughts in the comment section.

U.S. District Court of Appeals “Reaches” for the answer to the purchase mandate

Click to open DC Appeals Court Ruliing

Yep, I Probably Need to Get  a Life!

The past few days, I decided I really needed, no I really-really needed,  to read the opinion of the United States Court of Appeals for the District of Columbia Circuit ruling on the case of:

SUSAN SEVEN-SKY, ALSO KNOWN AS SUSAN SEVENSKY, ET AL.,
APPELLANTS
v.
ERIC H. HOLDER, JR., ET AL.,
APPELLEES”

Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cv-00950)

The court decided this case on November 8, 2011.  And from new reports you would think that the case made clear that the Patient Protection and Affordable Care Act (PPACA) was in fact constitutional and would lend credence to a affirmative finding of the validity of the law and purchase mandate by the U.S. Supreme Court soon.  Like most, media revelations, or more precisely-media invectives, reading this case neither answers the question of the constitutionality of the purchase mandate nor makes clear a constitutional argument that it will be affirmed by the Supreme Court.  Actually, for me it bolsters the base arguments not only on why it should not be upheld by the Supreme Court, but also why the underlying supporting rulings of prior cases like Wickhard v. Filburn and Miles v. Park need to be reassessed.  To see a background on these cases you can read my article on the Health Care Mandate and the Commerce Clause.

The truth be told, I had some very minor surgery and during recovery needed something to read!

Overall this is a relatively short ruling – just 103 pages – including the majority and minority (dissenting) opinions. I would advise all to read it, (click here to read the ruling) particularly the dissenting opinion even though the base argument for the dissent has little to do with constitutionality of the mandate.  Much of the concurring majority opinions are centered on the ability of the courts to hear this case at this time due to the Anti-Injunction Act.  In reading the concurring majority opinions I was repeatedly struck by the lengths they were willing to go in defiance of what I see as common sense; by ignoring, assuming or obfuscating the issues to arrive at their decision. The majority of their argument is centered on the Anti-Injunction Act, with little argument given to the principal issue of the constitutionality under the Commerce Clause and the Necessary and Proper Clause. The basis for the dissent is that the court did not have jurisdiction to hear this case at this time.  What is interesting in reading the dissent, written by Justice Kavanaugh, is the apparent length Justices Silberman and Edwards are willing to reach to ignore the argument that they do not have  jurisdiction and timeliness to even hear this case.  While I am hopeful this case should be heard at the soonest possible date by the U.S. Supreme Court, the argument by Kavanaugh is clear, concise, and compelling on the law and its prohibitive effect.  His argument, which I found both persuasive and full of common sense, is that due to the Anti-Injunction Act, the judicial branch is barred from hearing such a case until after there is an enforcement action.  Justice Kavanaugh cites:

Enacted in 1867, the Anti-Injunction Act, with a few exceptions, denies courts jurisdiction over pre-enforcement suits that would restrain “the assessment or collection of any tax.” 26 U.S.C. § 7421(a). The Supreme Court has strictly interpreted that Act as a firm bulwark against premature judicial interference with tax assessment and collection. As the Court has stressed time and again, although the Act may seem an inconvenient technicality in the context of a particular case, it is essential to the overall system of orderly and prompt federal tax administration.

Under the Anti-Injunction Act, a taxpayer seeking to challenge a tax law must first pay the disputed tax and then bring a refund suit, at which time the courts will consider the taxpayer’s legal arguments. Or a taxpayer may raise legal arguments in defending against an IRS enforcement action. But a taxpayer may not bring a pre-enforcement suit. In this case, the individual mandate takes effect in 2014, so taxpayers without health insurance must start paying tax penalties on their tax returns in 2015. The Anti-Injunction Act means, therefore, that a suit challenging the individual mandate cannot be entertained until 2015, unless Congress acts before then to exempt these suits from the Act.

The Anti-Injunction Act applies here because plaintiffs’ pre-enforcement suit, if successful, would prevent the IRS from assessing or collecting tax penalties from citizens who do not have health insurance. To be sure, the Affordable Care Act labels its exaction for failure to have health insurance as a tax “penalty” and not as a “tax.” But the Anti-Injunction Act still applies. That’s because the Affordable Care Act requires that the tax penalty for failure to maintain health insurance “be assessed and collected in the same manner as an assessable penalty under subchapter B of chapter 68” of the Tax Code. 26 U.S.C. § 5000A(g)(1). And penalties under subchapter B of chapter 68 in turn must “be assessed and collected in the same manner as taxes.” 26 U.S.C. § 6671(a) (emphasis added). It follows from those two provisions, taken together, that these Affordable Care Act penalties must be assessed and collected “in the same manner as taxes.”

Readers should also note that in contravention to the arguments or the majority opinion, the Federal Government themselves, in numerous early challenges, cited that, despite the language in the PPACA calling the assessment a penalty it was for all purposes a tax. And as my grandfather, a respected country circuit court judge used to say, “Once the animals are out of the barn, it does no good to close the door!”  So while I have been of the opinion it would be best for the Supreme Court to settle this issue, it appears to me that Justice Kavanaugh is correct and the Anti-Injunction Act clearly denies the courts the ability to hear this case until sometime in 2014 or 2015.

Ramifications and Unintended Consequences

The ramifications of the constitutionality of the purchase mandate stretch way beyond health care and should be seen as the proverbial “slippery slope” for concerned people on both the right and the left of the political spectrum.  Just like everything else the government does, an affirmation of the constitutionality of the purchase mandate will have the potential for many unintended consequences.  Justice Kavanaugh, in his dissenting argument, notes;

“But the Commerce Clause issue is extremely difficult and rife with significant and potentially unforeseen implications for the Nation and the Judiciary. Cf. Northwest Austin Municipal Utility District Number One, 129 S. Ct. at 2513.

To uphold the Affordable Care Act’s mandatory purchase requirement under the Commerce Clause, we would have to uphold a law that is unprecedented on the federal level in American history. That fact alone counsels the Judiciary to exercise great caution. See United States v. Lopez, 514 U.S. 549, 580, 583 (1995) (Kennedy, J., concurring) (“The statute before us upsets the federal balance to a degree that renders it an unconstitutional assertion of the commerce power, and our intervention is required. . . .”

If upheld, the exercise of power contemplated under the PPACA purchase mandate would not be clearly confined to health care.  Under the theory argued by the Government, the Government could impose imprisonment or other criminal punishment on citizens who do not have health insurance.  This is far beyond the taxing authority apparently granted in the language of the PPACA.  The PPACA has language restricting the IRS’s ability to use all of the same measures it has claim to under the U.S. Tax code.  But in oral arguments, the Government freely acknowledged further penalties and impositions by the Government beyond the limitations imposed on the IRS as the primary enforcement authority.

Once such actions are taken to enforce the right of the government to mandate the purchase of insurance under this theory, there is little to stop the government to extend such rights beyond health care to include other things like mandating the purchase of retirement accounts, housing, college savings other insurance, etc.  If fact Justice Kavanaugh opines;

“…there seems no good reason its theory would not ultimately extend as well to mandatory purchases of retirement accounts, housing accounts, college savings accounts, disaster insurance, disability insurance, and life insurance, for example. We should hesitate to unnecessarily decide a case that could usher in a significant expansion of congressional authority with no obvious principled limit.”

Once Again Back to the Commerce Clause

There were two primary point of challenges to PPACA by appellants:

Appellants, four United States citizens and federal taxpayers, seek declaratory and injunctive relief to prevent various U.S. Government officials and agencies from  enforcing the minimum essential coverage provisions. They argue that the mandate exceeds Congress’s authority under the Commerce Clause and substantially burdens appellants Susan Seven-Sky’s and Charles Edward Lee’s religious exercise, in violation of the Religious Freedom Restoration Act.

Since I am not a lawyer and must rely on my “every-person’s” common sense approach, the concept of being forced to purchase insurance is a step too far for me when it comes to the argument that it restricts religious freedom.  I am sure there are those that will quote me chapter and verse as to why this is a religious issue but unfortunately I don’t see it, and neither did any of the courts so far.  The prime argument has been, and remains, the authority of the Federal Government to regulate, nee mandate, the purchase of health insurance and to assess a penalty/tax if you don’t purchase insurance.

Clearly, congress has taxing authority under the constitution.  This undisputed fact is why at the outset of these challenges the Government argued that despite the word penalty’s use in the PPACA, it was for all intents and purposes a tax.  But, while that argument perceptibly granted them authority, it raised the questions related to if you can be assessed a tax for NOT doing something.  Further, it creates the problem of judicial authority at this time if this is a tax under the Anti-Injunction Act. It is interesting to note that the Government no longer is arguing so vociferously that this is in fact a tax.

Having exhausted my preamble, I will now turn my discussion to the issue of the Commerce Clause and the rights under the constitution of the federal government to regulate commercial activities of individuals within or between states.  To me this is both the main crux of the argument related to the purchase mandate and the center point of what I think is one of the most heinous and or ingenious – depending on your point of view – extensions of federal authority over the past 100 years.

The concurring majority bases their opinion of the Governments right to regulate commerce on precedent rulings beginning with a ruling where the court decided in 1945 that the Government had the right to seize and destroy a farmers wheat crop because it was in excess of the acreage the farmer was allowed to plant under the National Recover Act (NRA).  The fact that the farmer in question intended it for his own use on his farm and the wheat was not for sale, nor the fact that he likely would not have purchased wheat on the open market from out of state sources-but would more likely have bartered for it from another local instate source-did not sway the decision that this transaction affected interstate commerce and as such was now subject to federal authority. This landmark case, Wickard v. Filburn, and my feelings about this ruling are adequately described in Health Care Mandate and the Commerce Clause so I will not rehash them further here.  If you are not familiar with this history you should be.  Suffice to say, I believe the extension of the government’s regulatory authority as upheld in Wickard v. Filburn are much more than simply problematic.  The ruling endemic in the Wickard case needs a fresh review.  That said, I also think that there are many other problems in using even the logic of Wickard v. Filburn in upholding the insurance mandate.

Unlike Wheat – Health Care is Not Even Remotely Interstate.

While the U.S. Supreme Court, in 1945, stretched the fabric of imagination in tying personal wheat growing to an interstate commerce act subject to federal jurisdiction, health care is even more of a step too far.  Representative Melvin Watt (D), North Carolina during a House of Representatives Judiciary Committee hearing in the early part of 2011 on the need for Health Care/Malpractice Tort Reform commented that he was a strong advocate of states rights, and that in his entire life he had never seen an example of where the provision of medical services, health care, went across state lines.  He further said, he knew of no instance where a hospital existed simultaneously in two states, and that health care was so specifically regulated in each state as to make the provision of health insurance across state lines so problematic that it was in effect impossible.  He continued, that health care was clearly an issue relegated to the states and not subject the federal encroachment under the Commerce Clause and therefore the subject of federal tort reform over this issue, he felt, was out of order and beyond the jurisdiction of the Judiciary Committee.  This seemed like a very good argument to me at the time and still does.  Perhaps Representative Watt should write an amici curiae to the US Supreme Court on this specific topic.

In fact, in my opinion,  Rep. Watt is correct in almost all regards.  During the debate over the PPACA, it became clear that most of the country did not want a national health care option despite the best advocacy, efforts, and in some cases, obfuscation by many in congress.  A review of health care in America, shows that health care is, in fact, a state by state regulated industry.  Many, if not most, insurance providers have specific offices within each and every state to deal with the specific regulations, policy requirements, demographics, and actuarial within the state.  While one can buy policies from companies whose main headquarters may be outside of the state of residence of the purchaser, they can’t buy a generic policy that does not conform to the regulations of the state of residence of the purchaser.

So, even if Wickard is based on sound constitutional principals, health care is clearly not wheat.  While the case was made that wheat was a national commodity, and there was a national commodity market for wheat sales, and that poor Filburn by growing his own wheat and not buying it on the open market was affecting demand and therefore the national price of wheat; the same cannot be said for health care.  To amplify this argument, even the federal government through CMS recognizes at least the regional vagaries of the health care market by providing various rates for reimbursement of services based on geographic location.  There are numerous points of authority that will show that health care is, unlike almost every other industry you can think of, a state based economic system.  Again unlike wheat, affecting the sale or cost of a health care product or service in one state has little to no effect on any other state.  It is also likely true that the cost of care in San Francisco has little to no effect on care in Oakland let alone Petaluma, Sacramento, or Los Angeles.

Clearly, there is a national market for pharmaceuticals and medical devices but again each state regulates these items quite closely.  What a pharmacist pays for a specific drug in one state or region is so different for other states or regions that whole businesses like Foxmeyer Health have sprung up over the years to play games of arbitrage between local pricing variance for pharmaceuticals.  In my “every person’s” common sense approach health care is one clear example of a non-national market.

The consenting majority make the point that,

“… Because virtually everyone will, at some point, need health services, no one is truly  inactive, and the health services market is inextricably intertwined with health insurance. Congress found that those who do not purchase health insurance, and instead self-insure, almost inevitably take health care services they cannot afford. Hospitals, by virtue of federal law and professional obligation, provide these services, and as a result, $43 billion in annual costs are shifted to the insured, through higher premiums. That, in turn, makes health insurance less affordable and increases the total number of uninsured.”

While, this argument may be true, and then again it may not be true either, for this to have some form of sway the $43 billion would need to be a cost to all the federal taxpayers would it not?  Not state taxpayers under state regulations because that would not be interstate would it?  For this to be truly a national issue, the $43 billion would have to be almost exclusively a federal cost.  My reason is that since each state offers medicaid under their own authority and their own programs-and even President Obama has specifically referred to Medicaid as state programs-if private health care is also state specific how can this cost shift be a national issue.

One may argue that, Medicare is a national program, and they may also argue that the federal government subsidizes Medicaid at the state level.  But states remit money to the federal government, some of which they receive back, so I question the true source of the funding.  Someone should look at the  funds flow to determine, if possible, if the sources are local or federal.

Lets further assume that the Federal Government provides some funding to state medicaid systems, reimbursements/stimulus to hospitals, to offset uninsured care mandated by the federal government, and other federal governmental programs created by the federal government to subsidize the costs of the poor and the uninsured.  I don’t think it flows logically or constitutionally that this is now interstate commerce just because the federal government voluntarily created a program to provide money to citizens funded by taxpayers and that the costs that are shifted by the under-served drain on these funds makes it is now a national market.  If that is the case, then any time the government wants to take over an industry or regulate something we do, they will just decide to subsidize it and then claim it is now subject to the Commerce Clause and they can regulate it.  Does anyone really believe this is what the founders intended?

It is also good to note that the consenting opinion states that;

“The Government concedes the novelty of the mandate and the lack of any doctrinal limiting principles; indeed, at oral argument, the Government could not identify any mandate to purchase a product or service in interstate commerce that would be unconstitutional, at least under the Commerce Clause.”

So, even the Government acknowledges that his is tantamount to a preemptive right if it is upheld, but they basically then say, Trust Us  – heath care is so unique we would not think of doing this anywhere else!  I am sure the founders would never have contemplated that Mr. Filburn would have had his crops burned by the federal government only because he chose NOT to purchase wheat on the open market thereby maintaining the price the federal government deemed important.

The Majority opinion goes on to analyze the text of the Commerce Clause itself, including a contemporaneous definition from the Dictionary of the English Language of 1773;

“We look first to the text of the Constitution. Article I, § 8, cl. 3, states: “The Congress shall  have Power . . . To regulate Commerce with foreign Nations, and among the several  States, and with the Indian Tribes.” (emphasis added). At the time the Constitution was fashioned, to “regulate” meant, as it does now, “[t]o adjust by rule or method,” as well as  “[t]o direct.” To “direct,” in turn, included “[t]o prescribe certain measure[s]; to mark out a certain course,” and “[t]o order; to command.” In other words, to  “regulate”  can mean to require action, and nothing in the definition appears to limit that power only to those already active in relation to an interstate market. Nor was the term “commerce”  limited to only existing commerce.”

The last line of this extract, again for me is one of the steps too far.  How can you come to the conclusion that the framers in 1787contemplated regulating commerce that was not in existence therefor justifying the argument that you could regulate a non-action? To my simple mind this is word parsing and wordsmithing in the extreme.

The majority go on in their logic strained argument to state that the distinction between interstate and local commerce has been largely eroded and they cite the case U.S. v. Lopez as an example. This case was the “Gun Free School Zones Case” and much of the argument of that case was backward dependent on our old friend Wickard v. Filburn.

Since the concurring majority justices endeavor to find the original meaning and intent of the framers related to the Commerce Clause, perhaps they should weigh if the framers would approve of the federal government, in effect usurping the power of the states by creating national entitlement programs funded by federal tax collections, then using the argument that the lack of purchase of some good or service by the public was inordinately increasing the reliance on these programs and therefore costing the government, and hence the national taxpayers, more money and therefore it was an interstate commerce issue and effectively then subject to total federal control!  I do not see Thomas Jefferson, or even John Adams buying the argument that the Government can voluntarily create a program – that it could also cancel at any time if it got too costly – and then use this argument to claim further encroachment into state and personal rights under the very clauses they constructed to significantly and specifically limit the authority of the federal government and put those un-enumerated powers specifically in the hands of the states.

It should be noted that in this case the Appellants did not argue that Health Care and Health insurance are uniquely state concerns, but this has been argued successfully in other challenges to the PPACA.

Another frightening theory proffered in the majority opinion is based on this quote;

“Appellants’ view that an individual cannot be subject to Commerce Clause regulation absent voluntary, affirmative acts that enter him or her into, or affect, the interstate market expresses a concern for individual liberty that seems more redolent of Due Process Clause arguments. But it has no foundation in the Commerce Clause. The shift to the “substantial effects” doctrine in the early twentieth century recognized the reality that national economic problems are often the result of millions of individuals engaging in behavior that, in isolation, is seemingly unrelated to interstate commerce. See Lopez, 514 U.S. at 555-56.”

Once again this is predominately based on the original Wickard ruling and its extension under Lopez.  If it stays true and the opinion as proffered by the majority stands, there is nothing that stops federal intervention in anything we do or do not do.  I suppose they could argue that they can force us to drink alcohol to excess, then to drive – so the police can stop us, give us tickets, charge us with DUI, pay fines, take remedial classes, and then pay to retake a drivers test because in each case it was stimulating a national economy or it was helping defer the costs of dealing with the problems that were being born by the government, hence the taxpayer, hence it is all an interstate commerce issue under the Commerce Clause. And if we refuse to drink and drive, by extension we are not consuming the services in the interstate market and therefore affecting the prices of those goods and services and the resulting loss of market will cause an increase in the subsidies to those industries by the government, hence a drain on the taxpayer, hence interstate commerce and therefore properly regulated under the Commerce Clause.

My Conclusion

I think that the underlying case law here starting with Wickard v. Filburn, through U.S. v Lopez and other Commerce Clause related rulings dependent on Wickard up to today need to be reviewed.  I doubt this will happen absent a constitutional congress and an amendment to affect the vagaries purposely attributed by the Judicial Branch as justifications to expand federal reach.

I think that we need to focus our arguments in three additional areas:

  1. That health care, and the provision of services thereof, is and are not an interstate market system nor should they be.
  2. Someone needs to raise the constitutional question if the federal government can create programs that effect national markets and then use that effect to justify expanded reach under the Constitution.  If the answer to this is affirmative then this could be the biggest slippery slope of all.
  3. Was the ruling in Wickard v. Filburn correct?  And If not how can this ruling be challenged outside of the question of the Insurance Purchase Mandate.

Like everything else, I want you to ask your own questions and not rely on my opinions?  I do not know that I am correct.  What I do know is I have to read these things myself and attempt to understand them and then do what I think is right.  In effect, I need to be a Mugwump.

Pharmaceuticals in America: The Life and Death of a Patent Medicine King (1833 – 1960)

The Life and Death of a Patent Medicine King – Dr. Morse’s Indian Root Pills

There are those that believe the heyday of the Patent Medicine Men was over by 1930.  Still others believe that many of the leopards simply changed their spots. It is true that some of the original “cure-alls” live on today in various consumer products like Dr. Meyer’s

Original Brand of Pond's Cold Cream

Compound Extract of Tomato (now Catchup), Ponds Extracts (now Ponds Cold Cream,) Horehound Drops, Coca-Cola, Hires Root Beer, Dr. Pepper, 7-Up (originally called Lithiated Bib-Soda,) Listerine (at various times marketed as a floor cleaner, surgical antiseptic, cure for gonorrhea, and then successfully as cure for Halitosis(bad breath), and the Common Cold,) Halls Catarrh Cure (later Hall’s cough drops,) and many many others.  Further many of the companies, abandoned their “patent medicines” in favor of the new class of “ethical” pharmaceuticals that arose after the pure food and drug act of 1906. Even more damaging than the laws enacted by congress, were a series of articles in Colliers Weekly by Samuel Hopkins Adams that awoke America to the problems of these often deadly, always worthless concoctions that America was imbibing.

Many of the original members of the Proprietary Association, the rulers of the patent medicine kingdom, have disappeared from the pages of history.  That is not to say they do not still exist.  In fact, many of the major “Big Pharma” companies got their start in the heyday of Patent Medicines. If they did not produce patent medicines themselves – and few failed to capitalize on this lucrative trade from the mid 1800s through the 1930s – they provided raw materials to the purveyors of these noxious nostrums who made up a large portion of their incomes back in the day. It is no wonder that most of the major pharmaceutical manufacturers have purged their history of any mention of this era or these products.  The information is still there if you want to find it but it takes some serious digging.  Some great source for those so inclined, are the old periodicals available for free on Google Books.

Today, we fail to understand the lasting impact that this period and these manufacturers have had on our national psyche and our health care system today.  We have both many laws and numerous business practices that got their start either to help foster the sales of patent medicines or to curtail the influence of the Proprietary Association.  My book, “The History and Evolution of Health Care in America” among other things, explores in some detail the rise of this industry and its deleterious legacy on our current health care system.  Along the way I came upon an interesting story of the W.H. Comstock company, manufacturer of Dr. Morse’s Indian Root Pills.  In many ways this was the quintessential patent medicine manufacturer of the period.  The rest of this article will tell you a bit of the fascinating story of the W.H. Comstock company.

In northern New York there is the small, sleepy riverside town of Morristown.  Organized in 1871, few visitors even today to this picturesque location on the banks of the St. Lawrence River would suspect that it was home for over a century to one of the most famous and infamous purveyors of patent medicines of the late 19th and 20th centuries:  the W.H. Comstock factory, better known as the manufacturer of Dr. Morse’s Indian Root Pills.

Morristown was a quiet backwater before the Comstock brothers relocated their operations the 280 miles from New York City in 1867.  They moved, in part, to jettison some of their notoriety for a series of lawsuits between the family members in the business and many others in New York City.  Conversely, the village was a sleepy rural town whose main focus was dairy farming.  Lacking a powerful water flow at this part of the St. Lawrence it did not become a big haven for mills.  It did, however, at one point or another, develop a grist, carding and saw mill.  It was the arrival of the Comstock operation that spurred a significant period of growth in the town.

William. H Comstock (circa 1910)

What attracted the Comstock brothers was its isolation, its proximity to Canada, and similarly access to land immediately across the river.  It was also the perfect location for shipping. At the time of the relocation of the W.H. Comstock factory, the railroad was just beginning operations in the area, making travel back and forth to New York simple and convenient.  Comstock not only developed a factory in Morristown but developed a similar operation directly across the river in the Canadian town of Brockville.  It was this dual production and distribution system that helped the Comstock’s become one of the dominant players in the patent medicine game.

Like many in others in the same game, the Comstock’s were hard men in a hard business.  Founded by Edwin Comstock in 1833, along with numerous other brothers and sons their business evolved as a result of a number of questionable and contentious events in its early history.

The Comstock family came from a medical background and many of them were, or had worn the moniker of, physicians in their history.  More interestingly and likely very telling, is that the Comstock family home was in Connecticut only a few miles of the first American patent medicine, Lee’s “Bilious Pills.”  “Bilious Pills” both from Lee and many other imitators found such public and rapid success it certainly also had a profound impact on Edwin’s decision to venture forth in the same line of business.

Clearly, Edwin was not a novice when he established his business in 1833 in New York City.   As then early years progressed he would bring his brother Luscious into the business and also other brothers; Albert Lee, John Carlton, and George Wells.  He later introduced his son William Henry who ultimately succeeded him and who was the Comstock who brought the factory to Morristown.  Like many of the patent medicines of the day none of the Comstock’s products were patented but instead relied on the new trademark laws for protection.  Also like many others, they had numerous unscrupulous counterfeiters – the fakers were often members of their own family.

A great book for those who would like to learn more about the tortured history of the Comstock family along with the development of the patent medicine business might be obtained in the History of the Comstock Patent Medicine Business and Dr. Morse’s Indian Root Pills by Robert B. Shaw. (The book was published in 1916, and still available from Google Books.)

Comstock sold many more products other than the signature Root Pills. In 1854, Comstock & Company – then controlled by Lucius Comstock, listed nearly forty of its own preparations for sale, namely:

  1. Oldridge’s Balm of Columbia
  2. George’s Honduras Sarsaparilla
  3. East India Hair Dye, colors the hair and not the skin
  4. Acoustic Oil, for deafness
  5. Vermifuge
  6. Bartholomew’s Expectorant Syrup
  7. Carlton’s Specific Cure for Ringbone, Spavin and Wind-galls
  8. Dr. Sphon’s Head Ache Remedy
  9. Dr. Connol’s Gonorrhea Mixture
  10. Mother’s Relief
  11. Nipple Salve
  12. Roach and Bed Bug Bane
  13. Spread Plasters
  14. Judson’s Cherry and Lungwort
  15. Azor’s Turkish Balm, for the Toilet and Hair
  16. Carlton’s Condition Powder, for Horses and Cattle
  17. Connel’s Pain Extractor
  18. Western Indian Panaceas
  19. Hunter’s Pulmonary Balsam
  20. Linn’s Pills and Bitters
  21. Oil of Tannin, for Leather
  22. Nerve & Bone Liniment (Hewe’s)
  23. Nerve & Bone Liniment (Comstock’s)
  24. Indian Vegetable Elixir
  25. Hay’s Liniment for Piles
  26. Tooth Ache Drops
  27. Kline Tooth Drops
  28. Carlton’s Nerve and Bone Liniment, for Horses
  29. Condition Powders, for Horses
  30. Pain Killer
  31. Lin’s Spread Plasters
  32. Carlton’s Liniment for the Piles, warranted to cure
  33. Dr. Mc Nair’s Acoustic Oil, for Deafness
  34. Dr. Larzetti’s Acoustic Oil, for Deafness
  35. Salt Rheum Cure
  36. Azor’s Turkish Wine
  37. Dr. Larzetti’s Juno Cordial, or Procreative Elixir
  38. British Heave Powders

Because of its diverse inventory, Comstock became one of the major patent medicine companies during this period.  The manufacturer was also one of the pioneers of the Almanac as a sales tool. As Comstock began to develop its product line, the patent-medicine era was entering its golden years.  Robert Shaw states in his book, “Improved transportation, wider circulation of newspapers and periodicals, and cheaper and better bottles all enabled the manufacturers of the proprietary remedies to expand distribution—the enactment and enforcement of federal drug laws was still more than a generation in the future. So patent medicines flourished; in hundreds of cities and villages over the land enterprising self-proclaimed druggists devised a livelihood for themselves by mixing some powders into pills or bottling some secret elixir–normally containing a high alcoholic content or some other habit-forming element–created some kind of a legend about this concoction, and sold the nostrum as the infallible cure for a wide variety of human (and animal) ailments. And many conservative old ladies, each one of them a pillar of the church and an uncompromising foe of liquor, cherished their favorite remedies to provide comfort during the long winter evenings. But of these myriads of patent-medicine manufacturers, only a scant few achieved the size, the recognition, and wide distribution of Dr. Morse’s Indian Root Pills and the other leading Comstock remedies.”

Comstock took the lead as one of the main pioneers of the almanac -a sales brochure phenomenon of the day.  Almanacs were so popular and so mass produced that it was not uncommon for a person to walk into any drugstore and pick up three or four of them.  Some of these publications grew rapidly from just a few pages to over 64 pages by the mid 1800’s.

Stories published in the almanacs of the discovery of these nostrums, and also on the wrappers of the elixirs themselves, provided great reading and were the story-board commercial of their day.    Mr. Shaw relates in his book some examples of such inventive pitches,

Before 1900 the detailed story of the discovery of Dr. Morse’s pills was abridged to a brief summary, and during the 1920s this tale was abandoned altogether, until the end the principal ingredients were identified as natural herbs and roots used as a remedy by the Indians. In more recent years, the character and purpose of Dr. Morse’s pills also changed substantially. As recently as 1918, years after the passage of the Federal Food and Drug Act of 1906, they were still being recommended as a cure for:

  • Biliousness
  • Dyspepsia
  • Constipation
  • Sick Headache
  • Scrofula
  • Kidney Disease
  • Liver Complaint
  • Jaundice
  • Piles
  • Dysentery
  • Colds
  • Boils
  • Malarial Fever
  • Flatulency
  • Foul Breath
  • Eczema
  • Gravel
  • Worms
  • Female Complaints
  • Rheumatism
  • Neuralgia
  • La Grippe
  • Palpitation
  • Nervousness

Further, two entire pages in the almanac were devoted to explaining how, on the authority of “the celebrated Prof. La Roche of Paris,” appendicitis could be cured by the pills without a patient having to resort to the surgeon’s knife.

In another segment from the book, Mr. Shaw relays information mainly directed to the female health problems of the day.

THE GREAT FEMALE MEDICINE the almanac read:

The functional irregularities peculiar to the weaker sex, are invariably corrected without pain or inconvenience by the use of Judson’s Mountain Herb Pills. They are the safest and surest medicine for all the diseases incidental to females of all ages, and more especially so in this climate.

Ladies who wish to enjoy health should always have these Pills. No one who ever uses them once will ever allow herself to be without them. They remove all obstructions, purify the blood and give to the skin that beautiful, clear and healthful look so greatly admired in a beautiful and healthy woman. At certain periods these Pills are an indispensable companion. From one to four should be taken each day, until relief is obtained. A few doses occasionally, will keep the system healthy, and the blood so pure, that diseases cannot enter the body.

Watch any television show, listen to any radio broadcast or read any periodical or newspaper and one of the most prevalent areas of medicinal support will point to the area of sexual dysfunction.  Viagra and Cialis are boldly marketed for the treatment of men’s lack of “libido” or rigor in performance.   Only slightly more discreetly advertised are products for women related to dryness, libido enhancements or other more prurient pursuits.  While we think these issues are a modern connivance they are not. Again Mr. Shaw’s excellent history provides valuable insight to back up this assertion.  It reads:

Over on the Canadian side of the river, where another plant approximately the same size as the Morristown facilities was in operation, the Comstock Company had assimilated the Dr. Howard Medicine Co. Dr. Howard’s leading remedies were his Seven Spices for all Digestive Disorders and the Blood Builder for Brain and Body. The latter, in the form of pills, was prescribed as a positive cure for a wide array of ailments, but like many other patent medicines of the era, it was hinted that it had a particularly beneficial effect upon sexual vitality.

Over on the Canadian side of the river, where another plant approximately the same size as the Morristown facilities was in operation, the Comstock Company had assimilated the Dr. Howard Medicine Co. Dr. Howard’s leading remedies were his Seven Spices for all Digestive Disorders and the Blood Builder for Brain and Body. The latter, in the form of pills, was prescribed as a positive cure for a wide array of ailments, but like many other patent medicines of the era, it was hinted that it had a particularly beneficial effect upon sexual vitality.

They have an especial action (through the blood) upon the SEXUAL ORGANS of both Men and Women. It is a well-recognized fact that upon the healthy activity of the sexual apparatus depend the mental and physical well-being of every person come to adult years. It is that which gives the rosy blush to the cheek, and the soft light to the eye of the maiden. The elastic step, the ringing laugh, and the strong right arm of the youth, own the same mainspring. How soon do irregularities rob the face of color, the eye of brightness!

Everyone knows this. The blood becomes impoverished, the victim PALE. This pallor of the skin is often the outward mark of the trouble within. But to the sufferer there arise a host of symptoms, chiefest among which are loss of physical and nervous energy. Then Dr. Howard’s BLOOD BUILDER steps into the breach and holds the fort. The impoverished Blood is enriched. The shattered nervous forces are restored. Vigor returns. Youth is recalled. Decay routed. The bloom of health again mantles the faded cheek. Improvement follows a few days’ use of the pills; while permanent benefit and cure can only reasonably be expected when sufficient have been taken to enrich the Blood.

Before the Blood Builder pills were taken, all their users were advised to have their bowels thoroughly cleansed by a laxative medicine and, happily, the company also made an excellent preparation for this purpose–Dr. Howard’s Golden Grains. While the good doctor was modern enough–the circular quoted from was printed in the 1890s–to recognize the importance of the healthy activity of the sexual apparatus, such a suggestion should not be carried too far–so we find that the pills were also unrivaled for building up systems shattered by debauchery, excesses, self-abuse or disease. Along with the pills themselves was recommended a somewhat hardy regimen, including fresh air, adequate sleep, avoidance of lascivious thoughts, and bathing the private parts and buttocks twice daily in ice-cold water.

Certainly during the early days of the “Victorian” era these findings did not soften the ardor of the general populace who took to these remedies nor did the nature of these times force subtlety in the description of the cures available.  Today, the main findings we see pushed down our throats, very often literally, are cures for sexual dysfunction, “female problems,” constipation, the common cold or flu, mental stimulation, and my favorite compensating for loss of energy.  If one looks at the advertising for Comstock’s products one will see a historical mirror illustrating the sale of exactly the maladies and remedies for them, sometimes by the use of blunt and bold copy.  Most of the messages were communicated via the almanacs, product wrappers and newspapers. It would not be unlikely for all concerned about the evolution of health care to not wonder how much longer the patent medicine men would have held sway if radio and television had also been mediums to reach the gullible public. But then again, who is to say these purveyors of the quack and addictive have disappeared?

In a final section from the book, Mr. Shaw cites two other main points of interest during this period in which Comstock stands out as a solid illustrative member of the illustrious patent medicine industry; the use of testimonials in advertising its products and the lack of hard money in communities (important later relative to understanding the issues physicians faced in their practice in rural communities).  The use of testimonials was critical in the sale of these nostrums.  The experience of the everyday user was what rung most true to consumers, again just like today.  A great deal of newspaper ink was devoted to the publication of the merits of this nostrum or that elixir.  On rare occasions they showed up as advertisements.  More often than not, they also appeared as articles and letters to an editor.  Mr. Shaw summarizes these issues as follows.

Testimonials submitted voluntarily by happy users of the pills were always widely featured in the almanacs, newspaper adver-tisements, and handbills. Although the easy concoction of the stories about Dr. Morse and Dr. Cunard might suggest that there would have been no hesitation in fabricating these testimonials, it is probable that they were genuine; at least, many have survived in the letters scattered over the floor of the Indian Root Pill factory. In some cases one might feel that the testimonials were lacking in entire good faith, for many of them were submitted by dealers desiring lenient credit or other favors. Witness, for example, the enclosed letter from B. Mollohan of Mt. Pleasant, Webster County, West Va., on April 16, 1879.

Mollohan’s complaint about the shortage of money and the long delay in collecting many accounts reflected a condition that prevailed throughout the nineteenth century. Money was scarce, and the economy of many rural communities was still based largely on the barter system, so that it was very difficult for farmers to generate cash for store goods. Consequently, country storekeepers had to be generous in extending credit, and, in turn, manufacturers and jobbers had to be lenient in enforcing collection.

Contrary to popular perception, and in spite of many government regulations and actions taken by numerous associations to curtail the business of patent medicines, the W.H Comstock enterprise continued to thrive long after World War II.  The company reached its heyday shortly after World War I, but continued to sell many of its nostrums to retailers and distributors until March 31, 1960, when the last shipment of one-dozen boxes of pills was made to Gilman Brothers of Boston and two-dozen boxes to McKesson & Robbins of Mobile, Alabama on April 11 of that year. And with this final consignment – the factory closed its doors, concluding 93 years of continuous operation in the riverside village of Morristown.

In many ways W.H. Comstock is a true representative of the rise and decline of patent medicine manufacturers of the early 20th century.  I use the term decline as opposed to death.  It will be left up to the reader to determine if the patent medicine era has died or if the leopard has simply changed its spots. Later in this section, and in the others that follow, the reader will note that most of the companies are still with us, they have just changed their tactics or abandoned the “medicine” market for what is now referred to as “ethical pharmaceuticals” and/or the consumer product category.  Perhaps as a reader, you may come to the conclusion that “ethical” is a very flexible word when it comes to the acceptance and approval of pharmaceuticals.

After all, it took the FDA almost 100 years (1964) to finally get Warner – Lambert, the maker of Listerine – first formulated in 1879 – to finally stop improperly claiming in its advertizing that it was a cure for the common cold.

Please make a comment below if you like this brief history.  If so, I will be happy to include a few more in the next weeks as we prepare for the release of my new book!

President Obama’s Speech: Critical Question Continued

In his speech last night president Obama asked a key question.

President Obama asked, “Where would America be if we had not passed Medicare and Medicaid?”

As I said in my post last night, “President Obama’s Critical Question,”  the president’s question should not have been be a feel-good throw-away line, as it is the underpinning of the base argument, that Medicare and Medicaid have been good for us as a people and for the country. Clearly, the president believes that the answer to these questions is in the affirmative. But, what if the answer is not?  These are areas that I think many need to analyze.

Those who have been reading my articles know that I have a strong concern that the underlying issues in our health care system and our economy are systemic and the areas we are focusing on are, in effect, addressing the symptoms of the problems – not the root causes.  In my upcoming book, “The History and Evolution of Health Care in America: The untold back-story of where we’ve been, where we are, and why health care needs more reform!” I look at the relationship between the rising costs of health care and trace in part one cause to the large expansion of government programs like Medicaid and Medicare.  I also found correlations between the rapid increase in the amount of currency we created, after we jettisoned the gold standard in 1972, and the disproportionate allocations of these new monies to health care and other government subsidized programs like housing.

The relationship of the Total Money Supply (M3) to our current economic issues I will cover in a later article, but for now look at the direct, almost point for point, correlation of the rise in the total health care spend in the U.S. and the increase in the money supply.  I think there is no doubt that the significant increase in the amount of currency in circulation and the rapid rise of health care costs run hand in hand.  It is very clear, as Sancho said to his master, Don Quixote de la Mancha,

“Whether the stone hit the pitcher or the pitcher hit the stone – it was going to be bad for the pitcher!”

In this case, we can argue later whether the increase in currency drove the increase in costs or the increase in costs drove the need to increase the currency, it was the expansion of Government programs like Medicaid and Medicare that drove the increase in costs.

Housing also rose in a point for point correlation as well.  Unlike with health care, you can see it was an advance indicator.  This make sense, according to economic theory and the basic premise of fractional reserve banking because our the engine of economic expansion (the creation of new money) is debt.  Most preferably mortgage debt.  If housing prices did not rise and new homes and the resultant mortgages did not happen then the banks would have become rapidly out of covenant if the new money existed before the new mortgages were there to leverage against.

Lastly in this article, I include a chart of a few other cost histories, lest we think that all parts of the economy had the same correlation to the increase in the money supply.  Clearly, wheat corn and eggs did not experience the same effect from the increase in the money supply – nor does it appear they led the need to increase the supply.  I believe that most peoples practical experience is that not all things have risen in value twenty times in the past forty years.  Herein is the potential rub!

I will continue the discussion related to the presidents key question in my next article.  In that I will focus on how the creation of Medicaid and Medicare changed our personal character related to our view of our personal responsibility for our health care and how this change has affected our fiscal habits and our purchasing patterns and trends.

Please feel free to comment on this article or send it to others.  As I have said many times this is not a republican nor democrat issue.  I think this is an American issue.  I am not an economist just someone trying to understand why these things are happening now.  We need pragmatic solutions not demagoguery so lets find out what is the truth and then how we can fix it!

President Obama’s Critical Question

Tonight president Obama asked a very key question. This is one of those great moments where one question that really is one of the key questions was used as a throw-away, feel-good line.

President Obama asked, “Where would America be if we had not passed Medicare and Medicaid?”

This is really a key question, is it not? This question should not be a throw-away line, as it is the underpinning of the base argument, that Medicare and Medicaid have been good for us as a people and for the country. My opinion is this is, in fact, one of the major differences in the grander debate. Clearly, the president believes that the answer to these questions is in the affirmative. But, what if the answer is no? What if the truth is, that Medicare and Medicaid, have driven up our health care costs, disproportionately? What if these programs have fostered an era of unprecedented lack of responsibility? What if these programs have been one of the significant contributors to the base cost of business in America, and are one of the key underlying reasons that America is no longer able to manufacture goods cost-competitively for the rest of the world to purchase from us? What if these programs have so changed the nature of our economy that we now have accumulated a trade deficit in excess of $12 trillion since 1972 and we can’t become a net exporter because our goods are too expensive?

I think these are the key questions that need to be discussed. I submit the president will not like the answer. I also submit neither Presidents Obama nor Bush, nor republicans nor democrats are to blame for the problem. I further submit it is this issue that is the key problem we need to pragmatically solve.

President Obama should get some credit for asking this key question. He should also get some critique for using it as a throw-away feel-good line to rally his base – particularly if the answer is not as he is assuming!

I hope others will help tackle this question in the next few days. I know I will be continuing this dialog in the next few days specifically on this topic. It has been key to my research and understanding on the crisis we have in our health care system, if is one of the core issues discussed in my book and something that I feel we must address.

ACA, Politics, Mandates and the Commerce Clause

Focusing on the insurance mandate in the Affordable Care Act, (Obamacare) a few months ago I wrote a series of four articles for a publication, reproduced here as, “Health Care Mandate and the Commerce Clause Articles.”  In these four articles, I explored why I found the base argument that the government could regulate activities like these in a state difficult to fathom by reading the commerce clause in the constitution.

[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;

In my original look at this issue, I examined  the precedent cases cited by many as the basis for the idea of why the Federal government had, in this case, a superior right to the sovereign rights of the states, something that all agree was expressly limited by the framers of the constitution.   Reading these historical rulings made this concept that this is a Federal right even more difficult to swallow because I found that these earlier rulings often were even less convincing and often more startling in the extent that the arguments became even more extracted and remote in their nature.

In reading  the arguments and the rulings of the 11th Circuit U.S. Court of Appeals, I found an additional reason why I find the base idea that the Federal government has the right in instances like this to regulate the action of individuals in a state even more specious.  This is actually the simplest argument against such a right, and likely it would even hold the same effect at a state level.  It is part of the many arguments that have been made in the numerous constitutional challenges over these past few months.  But like much of these debates, the nature of the arguments has become complicated by excess verbiage and legal flanking obscuring for most of us the basic concept.

This additional argument comes in to points.  First, let us look at the definition of the word commerce.  In reviewing the many variations of the definitions available there are some basic common elements throughout.  They combine into the following.

com·merce
(komerse)
NOUN:

  1. The buying and selling of goods, especially on a large-scale, as between cities or nations.
  2. Intellectual exchange or social interaction.

Second, we simply need to ask a very obvious question, and one that while it has been raised by the legal scholars in the various debates in one form or another, it has been lost in the myriad levels of complexity provided more, it seem, to delight the ears than to illustrate the point. 

If commerce is either the act of buying or selling something, and depending on whether or not the activity was international, with the indian tribes or among the several states it could either be regulated by either the Federal government or the states.  How is NOT buying anything then an act of commerce in the first place?  And, if it is in fact NOT commerce then the argument on who regulates the action under the commerce clause is moot.

Of course legal scholars will use tangents of the “Wickard vs. Filburn” case to argue that not buying is an action that reduces the commerce among the states and therefore in reducing the revenue is itself something that impacts commerce and therefore can be regulated.  I guess this is the kind of argument our parents made for us to eat lima beans.

As a child my parents, who were good and nurturing parents, used to make me eat lima beans.  Every time I took a mouthful of lima beans, I had to rush to the bathroom to vomit.  And of course when I came back to the dinner table, I had to have yet another mouthful of lima beans, promulgating the same response.  Their justification was they were good for you.  Of course, the loss of the rest of the contents in my stomach and the various fluids and electrolytes that went along for the ride, did not enter into the equation – lima beans are good for you, we have lima beans, ergo  you need to eat the lima beans because they are good for you!

My father, a lawyer and son of a prominent judge, I suppose was simply adapting some of the arguments from the prior court rulings justifying the extension of the federal powers under the commerce clause, when he said, “There are people in other lands who are starving and it would be a sin for you not to eat those lima beans while they starve.”  He must have chosen this argument because it is so similar in the base points made in the historic extensions of federal power under the commerce clause.

In “Wickard vs Filburn,” the court ruled that poor old Roscoe Filburn’s wheat had to be destroyed because he grew more than the law, at the time allowed, even though he was using it on his own farm to feed his animals.  In the case against Roscoe, it was deemed against the law because his flagrant activities of wanting to feed his animals this ill grown wheat, reduced the grain he would have had to purchase from other states if he had not committed the heinous act of growing it himself.  Of course the fact that he likely would have bartered with the farmer down the road in his same state and that Roscoe, during the depression, likely did not have any cash to pay for the wheat in the first place was not relevant.  Roscoe, was not buying wheat from other states and as a result he was affecting interstate commerce and therefore the Federal government had the right under the commerce clause to regulate him so his wheat had to go.  Now Roscoe, eat those lima beans because they are good for you!

We have a strong habit in this country to stretch quite far to make the points we want to make.  We will obscure, misdirect, abstract and extend, often by many more than the “Six Degrees of Kevin Bacon,” in order to get the result that we want.  In doing this, either in the desire to accomplish an end we know people otherwise would not support or to appear brilliant by the use of flowery language and abstract argument, we often forget the simple and common sense argument.  The one we can all understand.  The one that actually stands up to quick and continued scrutiny.

Throughout these articles I have not wanted to argue whether or not we as a nation should require all to purchase insurance.  There are very good arguments both for and against this practice.  I simply am saying making these further and further abstract arguments, whether by legislative action, or judicial injection is not the way to achieve it.  In the end we spend billions of dollars arguing points that any person working in the fields or factories would screw up their faces and say, “What?”    If you related the “Wickard vs Filburn” issues to anyone working for a living they would have a simple answer.

In the end it is not hard to subvert intentions.  In the case of our current political motivations regarding the Affordable Care Act , so called Obamacare, we see exactly the extent that politicians and governments will go to get the outcome they want.  It takes years of very expensive education and hundreds of millions, if not billions of dollars, to arrive at the decisions that have been rendered based on the various political governmental and abstract interpretations of the commerce clause!  Only we can ultimately stop this and force those we elect to find the simple and most pragmatic answers.

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!

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.

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

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)

Health Care Mandate and the Commerce Clause (Part 1)

The first of a four-part series on the relation and effects of the Commerce Clause to Health Care

The following is a four-part series intended to provide a historical perspective as to the exhaustive debate over the constitutionality of the health care mandate. Part One, “Clear Words—Muddy Intent” explains the Commerce Clause—its origins and purpose and what our fore-fathers intended with it; Part Two, “Simple Issues—Complicated Problems” delves into “New Deal” legislation and the impact of the Willard vs. Filburn Supreme Court case as well as the Agricultural Act of 1938 and how all those legalities intertwined with the Commerce Clause; Part Three, “Sliding Down the Slope,” explores the Trademark and Sherman Acts and its effect on the patent medicine manufacturer’s industry and further discussion of how these two acts, and court cases addressing them, have created more federal oversight and control. In the final segment, Part Four, is a discussion of how Obama-Care is yet another legislative act that allows Congress to enact legislation that states and individual’s rights regarding the intent of the Commerce Act.

Part One: Clear Words—Muddy Intent

The Commerce Clause has defined the balance of power between the federal government and the states.

There has been a constant battle in application of the Commerce Clause between the need to protect consumers from abuse and the obligation of individuals to exercise personal responsibility

It has a direct impact on the lives of ordinary Americans beginning with the enactment of the Interstate Commerce Act of 1887 and the Sherman Anti-trust Act of 1890. According to Article 1, section 8 of the United States Constitution, this is an “enumerated power” in the United States Constitution (article I, section 8), provides that Congress has the power “To regulate Commerce … among the several States …” In response to rapid industrial development, Congress used the Commerce Clause to justify a new era of federal regulation, beginning with enactment of the Interstate Commerce Act in 1887 and the Sherman Antitrust Act in 1890. The outer boundary of Congress’s use of this power over the states has been the subject of a seemingly never-ending – and sometimes heated – debate. The Commerce Clause has defined the balance of power between the federal government and the states. It has a direct impact on the lives of ordinary Americans.

Speaking strictly as a layman, I find it very difficult to justify the argument that the mandate in the Patient Protection and Affordable Care Act (PPACA), so called “Obama-Care,” to purchase some form of health insurance is consistent with the intention of the Commerce Clause. I am neither a constitutional law scholar nor even a lawyer. However, I am well read and I had the benefit of growing up around a family law practice. Like some, whose fathers ran a hardware store, or whose family was in the grocery business, my understanding of the law comes mostly from my grandfather who was a judge, and also as a result of long hours after school following the explicit instructions of my father, or numerous uncles; gathering research, or hanging out in the record room of the old county courthouse documenting title transfers or other such legal recordings.

Regardless, in my everyman’s view and due to significant reading, I still am stymied at how one can assume the intention of the Commerce Clause was to use it to regulate such a wide array of activities. In fact the argument itself is not only counterintuitive; it has been very difficult for the courts to maintain a consistent view of federal power under this clause almost from the time of its original writing.

Simply Constructed

The Commerce Clause is exceedingly simple in construction. To most readers, it comes across as straight up in its potential interpretation, yet like much of the practice of law these days, interpretation is more driven by the desired outcome than the original intent of the wording.

There has been a constant battle in application of the Commerce Clause between the need to protect consumers from abuse and the obligation of individuals to exercise personal responsibility. Spending considerable time reading various papers written by the framers of the constitution, it is clear to me at least that the founders were attempting to solve relatively simple issues.

One State Over Another

As the U.S. was forming out of the chaos that was a byproduct of the Revolutionary War, the founders were wrestling with a number of problems that had been endemic in the colonies and in the end decided to only provide a set of very limited controls for federal exercise. The framers wanted to empower the federal government to act in a central fashion in negotiations and commerce relations with foreign nations in order to not have one state undercutting another state in the impost of duties, taxes or discounted prices. Second, there was an intention to restrict the ability of a state to impose interstate duties and taxes. It can be persuasively argued that part of the role of the Commerce Clause that the framers saw as necessary, but that does not seem explicit in the language, included a role for the federal government to play in adjudicating the differences arising between actions under disparate laws between the states in order to provide continuity for interstate issues as to fair and equitable protections of the individuals rights and freedoms. These intentions do not readily translate to the many arguments currently defined in expanding federal reach. For instance, in the phrase “To regulate commerce… among the several states…” they specifically use the term “among,” not between the states. Nor does it say between the citizens of the states, nor among the citizens of the states. In truth, it seems to become even clearer to me and others that if the framers had intended to empower the federal government to regulate commercial relationships between the citizens of one state to the citizens of another, or within a single state, these powers would have been specifically said so in pointed and specific language as one of the few federal enumerated powers.

Who has the Authority?

Therefore, the basic issues over the constitutionality of the PPACA mandate to purchase insurance, hinges on whether or not the original intention of the framers of the constitution was to give the federal branch, as opposed to the various state governments, the authority to regulate transactions between the citizens inside the borders of a state. Regardless, of whether or not you believe the framers intended to only have the federal branch control the business between the states or not, there have been a series of decisions and additional legislations that have significantly muddied the water of their intentions in regard to what is, or is not, a simple and clear statement. We will be discussing this in more detail in the next article.