Update no.432

Update from the Heartland

No.432

22.3.10 – 28.3.10

Blog version: http://heartlandupdate.blogspot.com/

To all,

As Kurt Vonnegut so succinctly wrote, “And so it goes.” This was the week of frenetic conclusion to the year of legislative struggle for health care reform. We will be arguing about the methods, the process, and the consequences of this extraordinary year, which is actually the culmination of a century’s worth of fits and starts, back to President Teddy Roosevelt. Regardless of the contemporary debate, history was made this week when President Obama signed into law the Patient Protection and Affordable Care Act [PL 111-148; H.R.3590; House: 219-212-0-0(4); Senate: 60-39-0-1(0); recorded vote: 21-March-2010; 22:49 (R) EDT]. To reach that milestone, the House cleaved off their desired amendments into a separate bill to allow the Representatives to approve the parent Senate bill. The cleaved bill was passed by the Senate and sent to the President – Health Care and Education Affordability Reconciliation Act of 2010 [H.R.4872, Senate: 56-43-0-1-(0); House: 220-211-0-0(4)] – after the House approved a couple of procedural errors. The President is expected to sign the companion bill into law next Tuesday, which will complete the process. Finally, it is done. Now, we shall see what Congress has wrought. As with most legislation, there are positives as well as negatives. Many more under-insured or uninsured citizens will soon have access to regular (preventative) medical care. The abortion distraction and Sarah Palin’s ill-advised, ill-informed, emotional, “death panel” nonsense depleted so much energy from the public debate. Now, we have corporations taking massive, one-time charges against the looming added costs of the new health insurance law, and several states initiated challenges to the constitutionality of the new law. Part of me wants the challenge to succeed under the 10th Amendment to begin the process of constraining the Federal government; and yet, another part of me wants to say, “Put your big girl panties on, and get on with it.” Universal health care for American citizens is a worthy objective . . . even if we disagree on the process and extent.
[See other relevant comments below.]

Last week [431], I noted the companion Establishment Clause case from the 9th Circuit Court of Appeals – Newdow v. Rio Linda Union School District [9CCA nos. 05-17257, 05-17344, & 06-15093 (2010)] appeal of [EDCA DC no. CV-05-00017-LKK (2005)]. This one dealt with the Pledge of Allegiance.
"I pledge allegiance to the flag of the United States of America and to the republic for which it stands, one nation under God, indivisible, with liberty and justice for all."
The original Pledge was created in 1892, ostensibly to help reunite the nation after the deeply divisive Civil War. The Pledge was codified by a Joint Resolution of Congress in 1942, and signed into law by President Roosevelt [PL 77-623] to separate the majority of citizens from organizations like the German-American Bund – an American Nazi affinity group. Another Joint Resolution amended the Pledge to its present form, which was signed into law by President Eisenhower [PL 83-396] and added the phrase under challenge in the present case – the so-called 1954 amendment. Judge Carlos Bea wrote for the majority and the court, “[W]e find the Pledge is one of allegiance to our Republic, not of allegiance to the God or to any religion. Furthermore, Congress’ ostensible and predominant purpose when it enacted and amended the Pledge over time was patriotic, not religious.” Judge Stephen Roy Reinhardt wrote an exhaustive and indeed blistering 130-page dissent in an unusually personal written assault on his colleagues’ reasoning – the two-judge majority in this case. Reinhardt spent an inordinate amount of time through repetitive demonstration in his attempt to establish God as a solely and exclusive Judeo-Christian religious term, and thus a violation of the Establishment Clause. I cannot summarize or condense the dissenting opinion. I shall let Reinhardt’s conclusion suffice. “As a judge of this court, I deeply regret the majority’s decision to ignore the Pledge’s history, the clear intent and purpose of Congress in amending the Pledge, the numerous Supreme Court precedents that render the school district’s course of conduct unconstitutional as applied, and the very real constitutional injury suffered by Jan Roe and her child, and others like them throughout this nation.” Unfortunately, it was the time, circumstances and people of the day as well as the genesis of the amendment that seriously colored the dissent’s opinion of the words in question. Taken in the isolation of the contemporary basis and rationale for passage of the 1954 amendment, I think the dissent reached the correct conclusion. The decision will undoubtedly be appealed to the Supreme Court, yet none of us can predict whether the Court will agree to hear the appeal, or how they will rule. If the Supremes confine their review to the essence of the amendment only, then I suspect they will overrule the 9th Circuit and affirm the district court’s finding of unconstitutionality. Nonetheless, using the dissent’s logic, we will have no choice but to eliminate all references to God from every government document, action, facility or representation; further, that we must expunge any reference to God in our historic documents, as they are likewise violations of the Establishment Clause. As a related side note, on 29.June.1966, I stood with 1300 classmates in the courtyard of Bancroft Hall as we took the oath of office, sworn by every commissioned military officer since 1789. That oath, to support and defend the Constitution of the United States of America, ends with the phrase “so help me God.” I have reaffirmed that oath five times in my life, and not once did I ever consider that oath to have a religious element to it. The intellectual salient in this debate is whether our reference to God is simply a religious artifact, or a historical, traditional recognition of a higher entity. Further, if we persist with the notion that God is only the form to which the majority believes, or even a sufficiently dominant minority, and nothing else, i.e., the God of my identity, not yours, then we add credence to the dissent’s view of the salient. It seems to me that if you stand back from personal religious beliefs and take a broad view of all religion, each of us will come to the realization that God is God, no matter what form or name(s) we use to describe Him. Alcoholics Anonymous espouses the concept that God is the “Higher Power of your understanding,” which seems to be a far more expansive and embracing perspective. Taking the inverse of the argument, if we believe that there is nothing beyond our conscious reality, then anarchy cannot be far behind; and, as a species, we will degenerate into the animals from which we came as well as rendered to a simple survival of the fittest, meanest, most aggressive, most ruthless. Even the true, committed atheist must believe in something beyond himself. So, I respectfully submit, whatever It is beyond ourselves that draws order and reason from the morass of chaos must be God. If we believe God is solely or wholly a Judeo-Christian entity, then perhaps the dissent presents a valid argument, i.e., Congress sought to further Judeo-Christian religious principles and practices. On the contrary, if we believe God is God and each religion recognizes God’s greatness in their unique manner, then can we say God is a universal, non-sectarian entity that can be recognized in an infinite myriad of ways from labels and names to even multi-theistic manifestations? In essence, God is what the individual believes God to be, not what someone else dictates Him to be. All too often, we confuse God’s greatness with the feeble and flawed practice of religion – the human system of beliefs and worship intended to recognize God’s greatness. The court has tried to remind us of the human destruction wrought by religion and its clerics during the crucible time prior to the formation of this Grand Republic. Perhaps it is easy for many citizens to forget the cataclysmic forces wrenching European society from whence our ancestors came; I cannot so easily discount those formative events. I absolutely do NOT agree with the dissent’s contrarian construction, i.e., “under God” is a purely religious phrase. While religion may have played a significant part in the development and passage of the 1954 amendment, ascribing purely religious trappings to the phrase would be tantamount to claiming the Declaration and Constitution were racist, sexist manifestos, or the oath of office was Christian indoctrination, as that was the backdrop upon which they were constructed. Having no direct interaction with Newdow and only the available public record, I have no choice but to conclude that Newdow seeks to impose his atheistic views upon the entire nation; he seeks removal of all references to God. If so, I can only hope he is resoundingly defeated in his quest. As a proud citizen of his Grand Republic, I cannot tolerate, condone or accept Newdow’s least common denominator approach. Further, I seriously question the alleged injury in this instance. While the court’s opinion in this case may not be as strong as it should be, I hope the Supremes hear the inevitable appeal and make a clear, unequivocal statement regarding God’s place in the history and future of this Grand Republic.

News from the economic front:
-- The Treasury Department's pay czar, Kenneth Feinberg, announced plans to review executive compensation at Goldman Sachs Group Inc., J.P. Morgan Chase & Co. and 417 other firms that took government TARP bailout funds. The pay review will cover a relatively short period but will capture the 2008 end-of-year bonus season at most large firms.
-- The National Association of Realtors reported the sales of existing homes fell to a seasonally adjusted annual rate of 5.02 million units (-0.6%) in February, the third straight month and the lowest level since last July. The median home price decreased to $165,100 (-1.8%).
-- The Commerce Department reported sales of new single-family homes fell to a 308,000 unit annual rate (-2.2%) in February and the fourth straight month, increasing worries of weakness in the housing market.

Comments and contributions from Update no.431:
“I know you didn't cover this in your blog, but I feel the need to talk about this health care debacle bill passed by the Congress. Where the hell do they get off telling us we HAVE to have health insurance or face fines? This is not health care reform. This could lead to health care rationing like they have in Canada and undermining the insurance industry. Let's face it, this is the government trying to take more control of our lives and governing against the will of a majority of the people. I have never been more disgusted with my country's government than I am today. This socialist (expletive) President and that witch Nancy Pelosi have shown their contempt for the private sector and the American people. Instead of just helping out those people who really need help with health insurance, they just decide to frack things up for everyone. I have nothing but contempt for these freedom-hating, power hungry (expletives) and I swear, if I ran into that (expletive) Obama or that (expletive) Pelosi I'd wave both my middle fingers at them. If they do not respect the people they work for, I will have no respect for those (expletives). I can't wait for November, and I pray these (expletive) socialists get booted out of their offices on their frackin' worthless butts! This Congress and this Administration can all go to hell!”
My response:
To reassure you, no one needs an invitation to raise a topic in this humble forum. You are welcome to advance any topic, anytime you wish, for whatever reason.
As they say, one man’s junk is another man’s art; so it appears to be with health care reform.
Likewise, I am not impressed with the approach taken by Congress to move the nation toward universal health care. I do not like to be told by the government or anyone else what I must do or be in what is predominately a private matter. Like most Americans, I do not want the government in my private affairs, and I think that camel’s nose has already gotten way too far inside my tent.
Further, the current version of so-called health care reform is an ugly compromise that has been collaterally painted by many diverse colors, e.g., welfare abuse, insurance corporation profits, abortion, distrust of government, et cetera ad infinitum ad nauseum.
This bill does not appear to address the root cause of excessive health care costs, e.g., uninsured “emergency” costs absorbed in overhead paid by all; our obscene litigious culture (i.e., someone must be to blame) and its impact on physician insurance; defensive testing; our penchant for instant cures; lack of competition; our erroneous assumption that anything can be “fixed,” and on and on.
The business equation for medical insurance companies is rather straight forward – they must PREDICT future demand and future costs, then distribute those costs across a subscriber base – the larger the base, the easier to spread costs. Terminal illness often ends life prematurely; it happens; it’s reality; spending gargantuan amounts of money will not alter the outcome. I dare say I have not used the services to the extent I have been paying for them, which in turn means someone else has benefited by the service they have received beyond what they have paid. That is the nature of insurance; it is the same for our homes, our automobiles, our very lives; medical insurance is NO different.
I shall respectfully claim that We, the People, have injected far too much emotion and political dogma in this important debate. We instinctively focus on the bad and ignore the good. We tend to color the whole picture by the abuse of a few. We also seem to have lost our magnanimity in the process.
I have worked and lived in countries with government furnished health care. I have seen and experienced the good and the bad of such systems. We missed an opportunity to make real, substantive change for the collective good of our People, but such is the nature of the beast. Something is better than nothing.
For all those clamoring for blood, there are other citizens who may now breathe a sigh of relief that help may be on the way. Helping our fellow man is not a bad thing or even a socialist notion. Let us not forget we are talking about human beings – decent, productive, contributing citizens. We can and should deal with the riff-raff separately.
As with so many topics that do or can impinge upon our fundamental right to privacy, we should focus our attention on the abusers rather than take the easy path with blanket solutions defined by the lowest common denominator. I also advocate for a far more mature, rational and reasonable treatment of societal ills that stress the medical system beyond our ability to affect it – psychotropic substance use, prostitution, mental illness, parental neglect, et cetera. I have long held the belief that putting the facts on the table and dealing with them is far better than pretending things do not exist; so it is with those fringe stressors. We rail against the symptom, but refuse to address the root cause(s).
Lastly, I am not quite so pessimistic. I truly hope we can lower your blood pressure just a smidge; I hate for you to blow a seal.
Keep the comments coming. . . about any topic that strikes your fancy. Thank you for sharing. BTW, I had a ton of material on the health care situation, but I did not have a clear view, so I chose to keep my powder dry. I’m sure we’ll be debating this topic for quite some time.
. . . a follow-up comment:
“I will add I am all for helping those people who truly cannot afford health insurance. The problem when I hear the number of uninsured (30-40 million depending on who's delivering the news) is it doesn't take into account those people out of college for a few years who don't feel health insurance is important (hey, I'm 24, what can happen to me?). Frankly, they don't want it, it's their choice. Meanwhile, 260 million Americans do have some kind of health insurance. My big beef is, as you say, the blanket solution. Helping the minority by making the majority suffer is no solution, and eventually, the minority you're trying to help will suffer right along with the majority, so now all you've done is make everyone miserable.
“I could not agree with you more about the morons in Congress not doing a damn thing to address the root causes of our current health care system (litigation, high cost of malpractice insurance, fraud, etc). Basically, for the Socialist-in-Chief (Obama) and his minions in Congress, this was simply, ‘we have to have some kind of health care bill to make everyone think we're doing a good job.’ From the outcry of the people of this country, they did not do a good job. I feel the proverbial Sleeping Giant has been awaken and many U.S. Representatives will be added to the ranks of the unemployed come January . . . God willing. I know I am ready to cast my vote against Ann Kirkpatrick here in Arizona, and I can't friggin' wait to do it.
“Thanks for being a voice of reason here. I do like to try and sound rational (though with, at times, sarcastic overtones) in these arguments, but every once in a while, I get so aggravated I go into Howard Beal mode from ‘Network.’ ‘I'm mad as hell, and I'm not gonna take it any more!’”
. . . my follow-up response:
Valid points. I think most thinking Americans are against government-dictated, mandatory anything from seat-belt and helmet laws to health care insurance. Nonetheless, our societal conundrum remains – who pays for those who cannot afford health insurance? A similar comparison exists with automobile insurance. When we went to no-fault insurance, the state had to demand all drivers maintain insurance coverage to make no-fault insurance work. It is NOT reasonable for a citizen to say, I’m not going to pay for insurance, and then expect everyone else will pay when I have an accident. How is that fair or reasonable? Today, every dollar of hospital (and in most cases even individual doctor) costs contain a fraction (in some instances a significant fraction) of overhead costs that collect uninsured, unrecoverable or bad debt expenses. In essence, everyone pays for those who cannot pay, and that leaves those cost largely hidden. I can support an opt-out provision for those who do not wish to pay for health insurance as long as we preclude doctors and hospitals treating uninsured people, whether foreign visitors or opt-out citizens, i.e., demonstrate an ability to pay before treatment. Since a doctor’s Hippocratic Oath precludes denial of life-saving treatment, we face a Catch-22.
Everyone is pretty stewed over this whole exercise . . . for one reason or another. So, you are entitled to your “Howard Beal” moment. I support everyone else’s “moment” as well, that is up until they act-out and damage or injure someone else’s person or property. I strongly condemn the brick through the window, the postal white powder, the death threats, and even the innuendo of threat; such conduct is simple anti-American – passionate is fine; destructive is not.
For the record, I do not agree with your premise that Barack Obama is a socialist. That aside, he has and does espouse legislative objectives that have a socialist tint to them, which is fairly common with the more liberal among us, but that does not make him a socialist. I believe the President pushed health care reform for his (their) perception that it was in the best interests of We, the People. There is a case to be made for that premise. However, as you have so passionately noted, there is also a case to be made that bigger government, dictating health care measures seems to be contrary to our traditional ideal of “Life, Liberty, and pursuit of Happiness.”
Every citizen should vote; it is our civic duty. Unfortunately, far too many citizens remain complacent and unengaged. Anyway, vote as you see fit.

Another contribution:
“With respect to ‘Privacy’ would it be fair to cite 'Roe vs. Wade' etc.? Where or how can anyone find in our constitution any right to kill a viable fetus? How immoral does something have to be to be considered criminal? Does any right to privacy provide a shield against murder? Well, anyway, to me it is encouraging to see any defense of a right to publicly acknowledge that there is a GOD. Is there any question what GOD Jefferson is referring to? Is it fair to impute the influence of that GOD on our founding fathers? I am not a student of Jefferson's writings as perhaps you are; but I do find it difficult to believe that in his insistence on 'Separation of Church and State' that he was in anyway denying the existence or 'Authority' of that GOD in the makeup and constitution of and influence on, collectively, our founding fathers of this United States of America. What say you?
“In a parallel but separate subject of 'States Rights' I do not see a States Right as a defense against the New Federal Mandate that everyone is to be compelled to Purchase/Pay For their own Health Insurance. I would insist that there is a common public interest/need that overrides any personal or states right, which mandates participation of every resident of this nation. It is, in my mind, criminally irresponsible for any individual or state not to pay for (on a means testing basis) and be included in health (insurance) coverage. I do not believe there is a better way to pay for this than with a FEDERAL SINGLE PAYER System that would include its cost if our individual FICA payment (I believe that all caps on those payments should be removed, and the rates should be progressive and sufficient to cover all cost of all care. I treat my proposal more exhaustively in my Personal Philosophy page at http://www.hermanosborne.com.)”
My reply:
You asked a number of questions. I shall take the risk they were sincere queries rather than rhetorical. So, here we go.
“With respect to 'Privacy' would it be fair to cite 'Roe vs. Wade' etc.?”
>>>>> Yes. I acknowledge the touchstone significance of Roe v. Wade [410 U.S. 113 (1973)] [319]; it was a landmark privacy case that sought balance between the autonomy of a woman’s body and the growing life within her uterus. If we want to discuss / debate a citizen’s fundamental right to privacy, we should go back to Griswold v. Connecticut [381 U.S. 479 (1965)] [166, 189, 323], which first gave expansive definition to a citizen’s fundamental right to privacy. Or, historically, we could go back to Union Pacific Railway Co. v. Botsford [141 U.S. 250 (1891)] as the first time the Supreme Court recognized a citizen’s privacy as a bulwark against the power of the State. We, the People, have quietly given up far too much of our fundamental right to privacy; most citizen do not realize that our right to privacy is our last defense against intrusion / imposition by the State. We must recover what we have lost.
“Where or how can anyone find in our constitution any right to kill a viable fetus?”
>>>>> The Constitution makes no reference to privacy as a fundamental right or otherwise, nor does it mention any right to kill anyone. As you know, Roe tried to find a balance between a woman’s autonomy and the viability of a fetus. Even after viability, the challenge then becomes the balance between the lives of the mother versus the fetus. These are never easy choices.
“How immoral does something have to be to be considered criminal?”
>>>>> In the main, any activity that causes injury to another person or another person’s property. Roe acknowledged a woman’s right to privacy and her autonomy to decide what is best for her body and her life. Roe also established extra-uterine viability at the third trimester. I would prefer abortion become a medical relic of the past, and that objective is worthy of our political energy. However, I am far more interested in protecting every citizen’s fundamental right to privacy, including a woman who finds herself with an unwanted pregnancy. I categorically reject the duplicitous efforts to deny birth control to women or men who do not wish to procreate. And, I emphatically condemn those self-anointed, self-righteous folks who demonstrate far more interest in the few cells dividing within a woman’s body than in the abused or neglected children foisted upon society by misguided, religious dogma. Yet, that said, I do believe a woman faced with an unwanted pregnancy should have a limited, defined, constrained window to decide; once a fetus reaches extra-uterine viability, she progressively loses that control up to but not including her loss of life or permanent injury.
“Does any right to privacy provide a shield against murder?”
>>>>> No! Absolutely not! Privacy does not shield any injury to another.
“Well, anyway, to me it is encouraging to see any defense of a right to publicly acknowledge that there is a GOD. Is there any question what GOD Jefferson is referring to?”
>>>>> No. There is only one God. Human beings refer to God by many different names and forms, but God is God.
“Is it fair to impute the influence of that GOD on our founding fathers?”
>>>>> No.
“I am not a student of Jefferson's writings as perhaps you are; but I do find it difficult to believe that in his insistence on 'Separation of Church and State' that he was in anyway denying the existence or 'Authority' of that GOD in the makeup and constitution of and influence on, collectively, our founding fathers of this United States of America. What say you?”
>>>>> No. Emphatically not. Quite the contrary. Jefferson repeatedly and consistently referred to God’s greatness in his writing, speeches and actions. His articulation of the “wall of separation” in fact makes clear distinction – the “wall of separation” was between church and State, NOT between God and State. He recognized that churches and religion are interpretations by flawed and feeble men, who are driven by internal, selfish motives . . . as all human beings are. He recognized by the history that he was immersed in and that preceded him; they knew all too well what destruction could be wrought by flawed human clerics invoking the name of God as their power.
The Health Care Reform legislation presents numerous challenges to We, the People, and to this Grand Republic. Does the Supremacy Clause and a liberal interpretation of the Commerce Clause authorize the Congress to “mandate” participation in Medical Insurance . . . or Social Security? No. I do not believe it does. Unfortunately, as is so often the case, Congress has taken a foolish and ill-informed path toward a noble objective. Congress has used the bludgeon, which largely fuels even further a broad distrust of government. I could continue and expand this line of reasoning, however, please allow me to take a different tack. If a citizen can refuse participation in the health care system, can hospitals, doctors and nurses refuse treatment for such individuals with life-threatening injuries or illnesses? If so, how does the medical establishment pre-identify non-participating citizens from covered citizens? Further, I am troubled by what this “mandated” approach does to the triage process. The new legislation removes limit caps. Does that mean a terminally ill citizen can expect or demand billions of dollars of life-sustaining treatment? How are we to decided what is reasonable and what is not? These questions have troubled me, and I do not see any effort to resolve these real world situations. What Congress has done is a small, albeit historically symbolic, move toward the objective, but it is a woefully inadequate step on what should be a long journey toward the objective. I just wonder whether this legislation will stand the inevitable test; my hunch is, it will; we have accepted Social Security for 75 years; I suspect the Court will say, we’re pregnant! We have long accepted Federally mandated programs. This one is no different from Social Security or Medicare.

My very best wishes to all. Take care of yourselves and each other.
Cheers,
Cap :-)