I happened across a video of Senator Tom Carper (D-Delaware) which one of my friends linked to on his blog which talks about the legislation being considered by Congress and the value that the senator places in reading the legislation his colleagues write.  The video itself is specifically aimed at the health care bill, but I get the sense that Senator Carper is really talking a bit more generally about a wide range of legislation and other legal documents.  The video can pretty much be summarized by the sentence, “No, I don’t read the bills, and I don’t know why anybody would; they do come with a plain English summary, so I just read that.”

Around the 3:40 mark, Senator Carper mentions some confusion with the desire of anyone to read legislative language, stating,”Why [legislative language] is of value, why someone should need to read that, I don’t understand.”  Well, Senator, maybe I can help you out with that.  The reason that people should read the legislative language is that it is the legislative language, not the English summary, which will ultimately become the law.  The legislative language becomes entered into the United States Code; a body of law which is binding on everyone to which the laws contained within apply.

When a person is accused of violating the law and brought to court, it is the duty of the judge to “begin … with the text of the statute.” (Hawaii v. Office of Hawaiian Affairs) There clearly must be something important about the legislative language if it, rather than the English summary, is the starting place for the courts.  Of course, it is simple enough to recognize that “something” as the fact that only the former is the law.

Freedom under the rule of law requires that everyone should be able to fairly know all of their rights and obligations.  Any person of average intelligence should be able to understand all of the laws which apply to him or her without needing to have the law explained by “experts” like lawyers, judges, and legislators.  What kind of freedom can there possibly be when even the experts are unable to understand the law?

It would not be hard for legislators to adopt a simple formula for deciding whether or not a law is too complex: If they can’t figure it out, it’s too complex.  In my view, that is reason enough to vote against a bill.  Doubly so when the bill is guaranteed to be invasive into the lives and freedoms of Americans, who deserve, at the barest of minimums, to know exactly the ways in which their freedoms are soon to be abridged.

I doubt there are too many people who remember this, but a couple of months ago the RNC published a survey asking people for their opinions on the health care debate as it stood at the time. One of the questions caught a bit of flak from the left, which caused the RNC to backpedal, calling it “inartfully worded.” The text of the question was this:

It has been suggested that the government could use voter registration to determine a person’s political affiliation, prompting fears that GOP voters might be discriminated against for medical treatment in a Democrat-imposed health care rationing system. Does this possibility concern you?  [ ] Yes, [ ] No, [ ] Undecided

The adjective describing that question is not “inartful,” but “prescient.”Garrison Keillor, in the Chicago Tribune, flatly suggests that dropping coverage for Republicans might be a good idea.  Even if Mr. Keillor meant that as a joke, I figure it’s only a matter of time before someone proposes the idea seriously.

Shame on the RNC for backpedaling.  The question they asked is important.  The issue they raised is real.  The political gamesmanship that health care permits is something that needs to be discussed, because even though party biased health care may not be part of this bill, how ever can we guarantee that it might not be part of the next one?

In skimming their website for something else, I stumbled across a Newsweek article making the case for health insurance for illegals.  The main thrust of the article is that there is an economic advantage to insuring people who are in the country illegally.  The advantage is based on the notion that illegal immigrants are, for their age and occupation, generally healthier than a similar American.  Because of the way insurance works, a healthy individual paying into the system reduces costs for everyone else because they contribute more money than they demand.  Unfortunately for Newsweek, even assuming that the average illegal is healthier than the comparable American, there are at least two fundamental flaws in the article’s argument providing them with insurance.

The first and most glaring flaw is that the article appears to simply assume that illegals are going to pay for their insurance like the rest of us.  Given that these people are “undocumented,” that they do not pay taxes, and that they do not appear on official company payrolls, this appears to be an assumption that deserves close scrutiny.  Furthermore, if the attraction of hiring illegals is the fact that they can be paid below minimum wage for long hours and given few benefits, these people are certainly not all that wealthy.  Most probably couldn’t afford insurance if they wanted to.  Thus, in order to be covered by universal health care, their premiums would need to be subsidized by raising the premiums (or taxes) on none other than the people whose costs they are supposedly bringing down.  Insuring illegals is a losing proposition the instant one of them goes to the doctor.

The second flaw is somewhat more subtle, but it amounts to the author assuming that the number of sick illegals entering the country will not increase.  That assumption will undoubtedly be false.  The reason illegals are so healthy now is because they need to be in order to not only cross the border but to then also work the long hours of physical labor required for them to succeed.  Insurance for illegals adds a new form of success: Without having done any work or paying a dime, an illegal would be cured of all that ails him.

It is a good sign that even the left understands the need to talk about economics.  They would be better served if their arguments were correct.  The economics are undoubtedly against the left on this issue.  Illegals should not be spending our tax dollars in our hospitals while American citizens are standing in line; they should be where they belong — at home.

In a New York Times op-ed, Paul Krugman offers his answer to the question of where economists erred in their treatment of the economic crisis.  (The article is lengthy and probably not all that interesting, but it does have a flow that keeps it going.)  While I may not be as educated in economics as Mr. Krugman, there were a number of points in the article that struck me as strange, lacking in context, or simply wrong.

For all the length and discussion, his basic answer to the topic question is that economists got it wrong by abandoning Keynesian economics.  Readers will find it unsurprising that his proposed solution going forward is to start thinking, again, more like Keynes.  In short, he believes that investors and economists came to rely too much on a view of financial markets which holds that they always get the right answer given the information available at the time, that “bubbles” are impossible, and that people in general can be counted on to act rationally.  Reality, he claims, is a lot more messy, and often needs to have the government involved to swim against the free market tide to bring stability to an otherwise unstable system and to head off the inherently bad problems of recession and unemployment.

The largest problem that I see with Mr. Krugman’s argument is that it ignores entirely one of the greatest destabilizing forces currently active in the market: The government itself.  Instead, Mr. Krugman appears to operate from the view that the current market is a largely untamed free market wilderness.  This position is not uncommon among liberals or other advocates of a centrally planned economy, who tend to label any market that does not behave as they desire as “free” (even such heavily regulated markets as health care) and in need of regulation.  In reality, it is hard to think of a market that hasn’t got a federal regulatory agency dedicated to it and which isn’t subject to countless regulations, not to mention the threat of lawsuit, even during “deregulation” periods.

Government meddling is certainly one factor which can, and likely does, cause “bubbles” to form in the economy.  A “bubble,” it has always appeared to me, is little more than a market response to incorrect or incomplete information which paints a rosier picture of the market than actually exists.  A bubble “bursting,” then, would simply be the market correcting itself once new information comes to light which points out investors’ exuberance.  In the late 1990s, the “tech bubble” grew from investor confusion as internet companies grew and appeared to succeed despite having no obvious business plan, strategy, revenue stream, or even product.  It burst when reality set in and people started to realize that traditional business rules applied to the web after all.  We know that the “housing bubble” was caused at least in part by the Fed driving interest rates (and, thus, mortgage rates) down and by the government pressuring lenders to make loans to people who had no financial business buying a house.  Here, too, something eventually had to give, especially once new government “mark to market”kicked in and eliminated any sense we might have had about how much anything might be worth.

Following any of the bubble bursts is a period which, as a matter of definition, we get to call a “recession.”  Whether or not this is bad would seem to mostly depend on whether or not recession values are more reflective of reality than the bubble values which preceded them.  If it is bad to live in the fantasy world of a bubble, it should be better to live in a post-bubble world where the value of things more closely reflects what the value ought to be.  Yet, Obama’s first reaction to the housing bubble collapse — of which Mr. Krugman seems to implicitly approve — was to exert government force to drive housing prices back up to their bubble levels, effectively locking in the bubble forever.

Of course, evidence so far suggests that even Obama’s Reality Distortion Field is not strong enough to pull that one off.  Despite the TARP money, the credit markets are still tight.  Despite the stimulus, unemployment continues to rise.  Despite bailing out GM and Chrysler, both companies still went bankrupt.  Despite every Keynesian action Obama has taken, he has utterly failed to produce a single long-term positive result for the economy as a whole.

So, how did economists get it wrong?  Well, Mr. Krugman certainly does have a point that it makes little sense to consider the correctness of housing prices by comparison to what other houses cost.  It also seems likely that they did put too much emphasis on the free market, neglecting to carefully analyze what effect government regulations were producing.  Whatever the conflicts within the economics community, we would seem to do ourselves no favors by pretending that central planning is any sort of economic panacea.

I have been spending a bit of time lately thinking about what I would like to see from a medical tort reform package.  Along with a couple of other things, tort reform seems, to me, like one of the most important and powerful ways to reduce the cost of health care in America.  America’s tort system is unique in the world (not only in medicine, but throughout the civil arena) because of the high damage awards possible in US courts.  Cutting these awards would reduce the need for and cost of malpractice insurance, which imposes a significant burden on doctors.  Changing the system of punishment in general would also offer a greater opportunity for targeting misbehavior and ensuring a more fair system overall.

Punitive damages are a form of non-economic damage that courts, through juries, are able to award to a victorious plaintiff.  In general, punitive damage awards are large, often several times the actual damages suffered by the plaintiff.  The logic of punitive damages is twofold: They serve as a way to compensate plaintiffs for injuries to which no dollar value can be easily attached, and they punish defendants for misbehavior in the hope that people in the future will not behave the same way.

The reality is that malpractice punitive awards tend to compensate lawyers and the IRS, and punish the doctor’s insurance company which is otherwise unrelated to the case.  The insurance companies, in turn, effectively punish all doctors by raising premiums to offset the huge losses that they suffer as a result of the lawsuits.  An individual doctor who loses may suffer a higher rate increase than the rest of his insurance company’s customers, but he will not suffer all or even most of the punitive damage cost.  After all, that’s why he bought insurance in the first place.  The result is that parties who were not injured reap most of the reward from insurance companies while doctors face very few consequences for their misbehavior, but have to charge patients more money to cover insurance premiums raised by other doctors’ mistakes.

Is there anything about this system that isn’t broken?

A better system, it seems to me, would be to do away with punitive damages entirely and, instead, expose doctors to non-economic punishments which cannot be insured away.  In particular, what I propose is that any doctor found liable would have their case referred to an oversight panel composed of practicing physicians and patient advocates.  The oversight panel would have the option to assign no additional punishment, to suspend the doctor’s license for a period of time, or to revoke the doctor’s license entirely.  The expert composition of the panel more accurately reflects a doctor’s peer group than does a lay jury, so they would be more likely to understand a doctor’s thought process and less likely to be swayed by hindsight bias in deciding an appropriate punishment.  Selecting both practitioners and patient advocates would ensure that both interests are fairly represented.  Finally, affecting a doctor’s license affects the misbehaving doctor directly, ensuring that he and he alone is punished for his misdeeds, that he is punished significantly by affecting his livelihood, and that other patients are made safer by removing a potentially harmful doctor from the market.

Tort reform is often opposed by people who believe it would prevent plaintiffs from bringing claims for certain types of injuries regardless of their claim’s merit.  Indeed, many tort reform proposals do exactly that.  Mine does not.  While this assumption may be questionable, I am willing to assume that every plaintiff who wins a case did receive an injury in fact and deserved to be compensated.  However, when compensation turns to punishment, I am convinced that there are more fair and cost effective solutions available than the punitive damage system we have today.

The Associated Press has an article which begins with a statement that “The national Republican Party has mailed a fundraising appeal suggesting Democrats might use an overhaul of the health care system to deny medical treatment to Republicans.”  The apparent suggestion comes from a question on a questionnaire which asked if people are concerned about the possibility that “GOP voters might be discriminated against for medical treatment in a Democrat-imposed health care rationing system.”  An RNC spokesman has apparently dismissed the statement as having been “inartfully worded,” but the question actually touches on a concern that I’ve expressed privately for several weeks.

One of the major considerations of the health care plans being worked through congress is a significant consolidation of information.  From the various reports I’ve read over the past few months, the government is planning to build a database which includes not only health history information, but also financial data, social security records, and various other things.  Campaign law requires the disclosure of names of “significant” campaign contributors, and it is probably not too hard an exercise for a party to identify most of their minor contributors as well.  Many states also require partisan registration for voting in primaries; which, while some people cross party lines, most people register straight up with how they usually vote.

If the voter rolls and campaign contribution lists are connected to the health care database, even if the connection is informal, it is difficult to ignore the abuses that would be possible.  Imagine how powerful it would be for a power hungry leader to declare that only people who vote for him get power.  With politics being essentially a power game, it would be only a matter of time before someone starts using health care as a tool to help their friends and subtly dispose of their enemies.  It may not be Obama, or his successor, or any President in our lifetime, but once a power is given, someone will figure out how to use it.  (And, by the way, that “someone” might be a Republican.)

Whether or not the survey question was properly worded, the issue it raises is real and significant.  Nobody is saying that Obama will only give health care to Democrats, but someone, someday, might.  That possibility alone makes the question worth asking.  We must be sure that health care cannot be rationed to partisan advantage.

Saw an article today saying that the Obama administration may be backing off its push for a public option in health care.  If this is true, it is good news.  But it makes me a bit nervous to see conservatives talking this up as some kind of victory.  As I posted in the comments section of another blog:

Without having done a lot of research, I can think of a few things to consider:

1. Depending on how the thing is set up, there may still be increased federal involvement. One article talks about government insurance whenever there are fewer than two private alternatives, and Schumer has said that he feels any co-op would need to achieve the same goals as the public option.
2. The co-op would probably need to be started by the federal government, probably with federal dollars. As we saw with the car companies, when the federal government gives money away, it thinks it owns the thing it gave money to. How independent is a federally funded co-op really going to be?
3. If these were such a good idea, why hasn’t private industry created its own co-op system yet?
4. The public option is only part of the government’s health care plans. A co-op may kill that, but it won’t keep the government from expanding its reach in other ways.
5. To me, it feels like socialized health care on an installment plan. They reached too far, and are now willing to make concessions and meet in the middle. If this passes, expect the next health care go-around to focus explicitly on single-payer, with concessions to get us back to about what we’ve rejected today.

With the left apparently on the run, now is the time to press the attack.  When fighting Medusa, one does not quit after removing only the first snake.

Toward the end of an article on Obama talking about health care, the New York Times shares a quote from the President which is his apparent attempt to calm fears of bad consequences with examples from history.  he probably should have picked different examples:

When President Roosevelt was working to create Social Security, opponents warned it would open the door to ‘federal snooping’ and force Americans to wear dog tags.

While I suppose that technically they aren’t dog tags, the national ID cards established by the Real ID Act seem rather close enough.  As far as “federal snooping” goes, it’s probably impossible to figure out which of Roosevelt’s policies should be blamed for opening the door to that, but as the Social Security Administration is now involved in everything from retirement savings to disability assistance to reviewing corporate hiring decisions, it strains credulity to suppose that Social Security didn’t lead to more federal involvement in our daily lives.

When President Kennedy and President Johnson were working to create Medicare, opponents warned of ‘socialized medicine.’ Sound familiar?

On the road to socialized medicine, you can either go all the way all at once, or you can go slowly, one step at a time.  The VA system, Medicare, and SCHIP are all steps along the way.  As we become used to (or worse, dependent on) these systems, we stop asking tough questions and we tend to neglect the overall pattern.  But there can be no doubt that medicine today is more socialized than it was before Kennedy and Johnson, even if both left the endgame for another day.

It took 70 years for the government to tell us to go get dog tags; a relatively small offense compared to the only-50-years-old socialized health care campaign.  These things take time, but the federal government has shown itself to be patient.  It is far less important what the government has done as of today than what it will do starting tomorrow.

It took some work for me to find a video of the question posed by Katy Abrams to Senator Arlen Specter which included his response, but the reward was well worth the effort.  Katy’s question is interesting not only for its power (which is obvious enough from the response she got), but because it is the most crystal clear delivery to date of the question Americans should be asking.

At so many of these town halls, citizens are standing up and asking tough questions to their politicians about the proposed health care reforms.  Many come prepared with questions about the House bill, some speak more in general.  There are questions of taxes, of who pays, of what will happen to private insurance, and all of the other details.  These are important questions which must be asked.

What Ms. Abrams asks, though, is a question which is far more important.  She says it herself, that what she wants to know is not just about this, or that, or the other thing.  Her question — the one all of us need to ask — is what any of these things mean for the foundation of the country.  Even if the health care plan was perfect, as Americans and proud believers in constitutional government, we cannot neglect to ask ourselves if the government is acting within its constitutional authority.  As believers in liberty, we must not neglect to ask ourselves if the government is acting within its appropriate role.  If either of those two questions are answered in the negative, then none of the rest even matters.

Senator Specter’s response is telling in a number of ways.

After stammering around for a bit, he offers a platitude about his work defending the Constitution, then instantly changes the subject completely away from health care.  I do not believe, Senator, that however zealously you may have defended the Constitution in the past, that you or any other government official may be excused from defending the Constitution now or in the future, as long as you continue to serve.  The oath you swear is always and everywhere; it has no provision for “I did good last time,” or “I’ll get the next one.”

From there, Senator Specter proceeds to talk about how our “social compact” has a “provision to take care of people who need some help.”  Whatever his “social compact” may be, I guarantee that it is not the Constitution.  Nowhere can I find in the Articles or Amendments a “help those in need” clause.  Not that they needs one, of course.  The Founders knew what history has shown time and again: The best way for a government to help those in need is to stand back and get out of their way.  The people themselves can — should — take care of their own, and that’s what a “social compact” is all about.  It is an agreement of and among the people, far different from a constitution which is a contract between the people and their government.

Our Constitution, of course, is not one that is admitting of government operated health care.  The power to provide health care is certainly not “delegated to the United States by the Constitution,” which means that it must be “reserved to the States … or to the People.” (US Constitution, Amendment 10)  As that language makes clear, it is impossible to uphold and defend the Constitution and support government health care at the same time.

When the government has no authority to do something, the vote should be simple and  clear.  “No.”  The people understand this, and they proclaim it proud and true from every side of the aisle.  But to get the answer, we must do as Ms. Abrams and ask the question.  Defending our freedom is at the pinnacle America’s “social compact.”