Update from the Heartland
No.512
3.10.11 – 9.10.11
Blog version: http://heartlandupdate.blogspot.com/
To all,
With a somber and clear mindset as well as a sense of literary honesty and candor, I write this paragraph so that no one is surprised . . . no matter what the outcome. As is my practice, I had my annual physical at my birthday, as I have done every year since I was 17-years-old. For the first time in all that time, my family physician noted that his digital prostate check indicated a slight enlargement and my PSA blood test nearly doubled from last year. I had no other indicative symptoms. Our doctor recommended I see a urologist, who in turn noted that the PSA is notoriously unreliable and only a biopsy could reliably determine any abnormal condition. I elected to have the biopsy; I received the results this week. All three right side samples were normal tissue. All three left side sample showed prostatic adenocarcinoma, with 40-90% involvement and Gleason score 3+4=7; stage T1c N? M?. We have not yet eliminated collateral involvement, which should be the next step after my follow-up consultation on Wednesday. Obviously, Jeanne and I have jumped into learning about a very specific topic. Prostate cancer strikes more than 218,000 U.S. men each year; I am now one of those. About 28,000 die of it, making it the most common cancer and second-leading cancer killer among men. For us, the journey has only just begun.
In an odd timing, the U.S. Preventive Services Task Force – the same group that ignited a 2009 firestorm over the efficacy of routine mammography for breast cancer – recommended the prostate-specific antigen (PSA) test for prostate cancer not be used for routine examination without collateral indicators. Perhaps in the category of TMI: according to a recent British study, young males, 15-19yo, should be ejaculating 3-5 times per week for good prostate health. I apparently failed in that health precaution – out of ignorance more so than purposeful disregard. I say this not to offend, embarrass, or make anyone uncomfortable; rather only to raise the topic of how we teach our children. I failed in that regard as well. Nonetheless, I would like to be the poster-child for routine examinations and early detection. Only time will tell.
The follow-up news items:
-- The House quietly passed the Continuing Appropriations Act, 2012 [PL 112-036; H.R.2608; House: 352-66-0-15(2); Senate: 79-12-0-9(0)] [511], which funds the government at FY2011 levels through 18.November.2011, i.e., a stop-gap measure to buy time, hopefully to pass the FY2012 appropriations.
As indicated in Update no.511, I undertook a reading / review of the salient appeals court decision to be placed before the Supreme Court (SCOTUS) regarding health care reform – Florida v. HHS [11CCA nos. 11–11021 & 11–11067 (2011)]. The three-judge panel rendered their opinion on the appeal of Florida v. HHS [USDC FL ND(PD) case: 3:10-cv-00091-RV/EMT (2011)] [477] – the challenge by 26 states of the massive 975–page Patient Protection and Affordable Care Act (PPACA) [PL 111-148; 124 Stat. 119] [432] {please note that I include the amendments of the Health Care and Education Affordability Reconciliation Act of 2010 [PL 111-152; 124 Stat. 1029] under the PPACA banner}. Before we jump into the pool, please allow me to suggest to those who wish to know more about PPACA, the 11th Circuit’s concluding document offers a succinct summary of PPACA at pp. 21-23 with a broader judicial view, pp. 11-53; the court offers an excellent, unbiased, expanded summary in Appendix A: Overall Structure of Act’s Nine Titles (pp. i-xiii); I strongly recommend reading the short summary, if nothing else, and suggest reading Appendix A. The 304-page, 11th Circuit ruling took an inordinate amount of time for me to read and digest, which is an obtuse reflection of how complicated or difficult this issue is . . . for me, at least. Let it suffice to say the states’ challenge acknowledged acceptance of the majority of PPACA, while objecting to several key elements, with the primary focus on the individual mandate of PPACA (created by Title I, Subtitle F, Part I, Section 1501) versus the Commerce Clause (U.S. Constitution, Article I, Section 8, Clause 3) that delegates to Congress the power to “regulate Commerce.” Chief Judge Joel Fredrick Dubina of the 11th Circuit Court of Appeals wrote for the three-judge panel. Three sentences appear to brightly illuminate the central issue in this case. He noted, “The government emphasizes that Congress intended to regulate the health insurance and health care markets to ameliorate the cost-shifting problem created by individuals who forego insurance yet at some time in the future seek health care for which they cannot pay.” Dubina added, “The [states] stress that Congress's authority is to ‘regulate’ commerce, not to compel individuals to enter into commerce so that the federal government may regulate them.” The court concluded, “[T]he individual mandate exceeds Congress's enumerated commerce power and is unconstitutional. This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority.” Judge Stanley Marcus agreed with the majority on all except their assessment of the individual mandate as he concluded, “At bottom, Congress rationally concluded that the uninsured's consumption of health care services, in the aggregate, shifts enormous costs onto others and thus substantially affects interstate commerce. The individual mandate directly and unambiguously addresses this cost-shifting problem by regulating the timing and means of payment for the consumption of these services. Congress also fairly determined that the mandate is an essential part of the Act's comprehensive regulation of the health insurance market. I would, therefore, uphold the mandate as constitutional, and I respectfully dissent on this critical point.” The individual mandate has no meaning or relevance for the majority of Americans who are covered by health insurance – some purchase their own, some from their employment, and some by virtue of their service to this Grand Republic. Yet, an estimated 50 million citizens are unable to afford health insurance, choose not to have coverage, or are under-insured. In 2008, US$43B in uncompensated medical treatment had to be absorbed by the payers – the cost-shifting mentioned above. The Catch-22 . . . we don’t want to be told we must have health insurance, yet we expect treatment even though we cannot pay for the treatment we receive. That dichotomy is not stable, or balanced, and cannot be sustained. Congress may not have found the correct remedy, but the PPACA Section 1501 requirement is the best effort to date to mitigate the enormous cost-shifting situation. Nonetheless, the bottom line: we simply cannot have it both ways. The State requires a citizen to pay for a minimum level of insurance as a condition to operate any vehicle on public thoroughfares, and establishes penalties for a failure to comply. It could be argued the health insurance requirement is the same; however, the citizen does not have a choice regarding illness (well, other than the argument that preventative medical treatment would avoid many illnesses or at least mitigate the seriousness of illnesses). None of the court documents I have read so far address the preventative or preemptive treatment for life-threatening, highly contagious, infections like influenza, HIV, et cetera. Freedom of choice is the essence of Liberty. Responsibility and accountability for our choices is also vital to an organized society. I have no problem with an individual choosing to reject health insurance coverage, however the consequence you either pay cash for treatment up front as a surety for payment for services rendered, or you are denied treatment. As long as everyone can live with those consequences, then we are good to go with no individual mandate. You just cannot have it both ways. The whole purpose of any insurance is paying a reasonable fee when you don’t need it for the security of not being bankrupted when you do need it. If the individual mandate is determined to be unconstitutional by SCOTUS, another choice for Congress might be new laws to prohibit the transfer of uncompensated treatment costs along with the power to audit hospitals and health insurance companies to ensure that the costs of uncompensated treatment are not passed on, thus doctors, hospitals and health insurance companies would have a choice to make regarding the treatment of individuals who cannot prove they have sufficient means to pay for the treatment they are about to receive; this would naturally have to include emergency treatment as well. In essence, we could require the USG to hire an even larger army of accountants to ensure those who do have Federal health insurance (e.g., Medicare, Tricare, et cetera) are only paying for the services rendered to them rather than supporting the uninsured and underinsured. Of course, such laws within congressional authority would shift the US$43B in uncompensated treatment costs to all other non-Federal health insurance programs as well as à la carte expenses for everyone else. That way, no individual mandate would be required. Now, that sounds fair, doesn’t it? As a citizen and novice student of the law, I think the Supremes have gone way too far with the expansive interpretation of the Commerce Clause ever since Gibbons v. Ogden [22 U.S. {9 Wheat.} 1 (1824)]. As noted above, I am quite conflicted on the constitutionality of the PPACA individual mandate. Being so, I must come down with Judge Dubina. In my parlance, we must move the limits of the Commerce Clause back to a more reasonable and realistic position. Conversely, I believe any citizen who wants health insurance coverage should have it. The Supremes have embraced a federalist bent for many decades now, which suggests they may overturn the 11th Circuit and reflect Judge Marcus’s reasoning. At this point, I urge the Supreme Court to accept the Solicitor General’s petition for preemptive hearing.
One postscript comment: What has not been spoken as far as I can tell is the precautionary / preventative health care necessary to maintain good health and to blunt potentially catastrophic illness in the early stages before it becomes serious or life-threatening.
The continuing debate regarding targeted assassinations:
“Assassinations and the destruction of history”
by Derek Henry Flood
Asia Times
Published: October 4, 2011
http://www.atimes.com/atimes/Middle_East/MJ04Ak01.html
and
“Assassins of Liberty – The death of Anwar al-Awlaki”
by Justin Raimondo
antiwar.com
Posted: October 03, 2011
http://original.antiwar.com/justin/2011/10/02/assassins-of-liberty-2/
A contributor pointed me to an essay by University of Notre Dame Law School Professor Mary Ellen O'Connell, titled: “Killing Awlaki was illegal, immoral and dangerous.” I did not have time to read Mary’s opinion; I intend to do so for next week’s Update. I note that the difference between President Carter’s Executive Order 12036: United States Intelligence Activities, and the Bush/Obama directives for targeted strikes is war, plain & simple. This is not an easy debate. Technology has enabled this capability and the debate, but capture or assassination has been a tool of war since our ancestors began to scratch out a historic record on clay tablets. More to follow; all opinions welcome.
This exchange is reprinted from a different network with the author’s permission:
“I'm too going to read 11CCA opinion [Florida v. HHS].
“Had an extended phone conversation last night with an old friend, [ ], that I've known since a kid, and later he contracted my services in the early 2000's to convert his company to computer accounting (versus their manual bookkeeping methods), and a full contact mgmt/prospect tracking software-driven company. [He] was diagnosed more than 5 years ago with Mesothelioma, malignant lung cancer triggered by asbestos contamination. The fact he is still alive is a miracle, as many victims live only 1 year, with the average max being 3 years. So [he] has beat the odds though they do have a few who have lived 10 years after diagnosis. He was able to do an early retirement in life, at the end of last year. His sons and wife ran the business up to that point. He can afford to take the time off to work on immunity, and he said all the doctor's visits, hospital stays, testing, etc., is almost a full-time job. But he also said that he would never have been able to afford the superior health care he gets (UCLA) had it not been for his business giving him a good income, and then selling the company and using some funds to pay for med-care. He said anyone in a less blessed position, would be dead. His wife did the accounting and said his health care out-of-pocket is costing them about $35K per year, on top of an excellent health insurance plan he purchased but that costs him $1K/month! This week he has to get a new type of SCAN test, that the insurance provider has denied payment for (this time, they paid for the last 2), and so out-of-pocket cost for [his family] is $7,500 for a test.
“The conversation with him caused me much thought about what are the goals of our PPACA, and what will be the real product when implemented. How would it affect someone like [my friend], or let's say many of us who may not have the means to pay for the kind of care [he] gets. Towards the close of conversation, [my friend] said something about his ancestors being from Holland, and that he is not a socialist but wishes the national health care plan could help more people and if he had not had the assets/cash, he would have had to use it.
“You opine/proffer many good things below Cap, causing all of us to think better, about complicated issues in our nation.”
My response:
[Your friend] makes some very good points, and certainly thank him for his honesty and candor. I wish him continued success in fighting that monster. As I’ve said many times, PPACA is not perfect, but at least it makes an attempt to remedy a rather egregious societal problem.
I still have not finished Florida v. HHS [completed now]. Interesting ruling. We still don’t know if the Supremes will honor the USG’s request for preemptive hearing, but I certainly hope they do. Furthermore, it is impossible to predict how the Supremes might decide, but I suspect whenever they render their opinion, it will be a landmark-class decision – after all, there is an epic principle at hand. If the individual mandate is declared unconstitutional, it will render PPACA virtually toothless. With the mood of Congress being what it is, I suspect such a decision will also be the death knell.
. . . a follow-up comment:
“I know this is a very different topic, but would like to see your analysis on the Occupy Wall Street group, perhaps in your next Update. Many I know are very mixed on the activists, or at least who is organizing them behind-the-scenes, in the so-called ‘leaderless’ swell of them across our country. I find their timing ironic, considering the surmounting issues here and abroad. Our GOV needs to pass another spending extension in November or it will again be timed to shut down. I look at the Arab Spring revolutions and wonder too, what entity is behind that as well.”
. . . my follow-up response:
As with the Arab Spring movements, the Occupy Wall Street (OWS) group [if we can even call them that] appears to be “leader-less,” which makes it very difficult to grab a handle on. I perceive OWS in the same vein as the Tea Party (TP) was several years ago . . . an amorphous, public demonstration of dissatisfaction. The TP has not progressed much farther past the embryonic stage, although they have obviously exerted some influence on the political process. Also, the OWS appears to be a left-leaning version of the TP. Indeed, the timing is not good . . . kinda like the union movement in the early 30’s.
As I reported in this week’s Update, the House did pass the Senate’s version of the extension bill HR.2608 [now PL 112-036] that funds the USG at FY2011 levels until 18.Nov. I’m sure you recall the foolishness we had to endure last spring regarding funding extensions upon extensions; I suspect we are now back into that same cycle. Also, the Super Committee on spending reduction has their deadline set at 23.Nov., per the Budget Control Act of 2011 [PL 112-025] [503], and a congressional deadline of 23.Dec. I suspect we’re in store for a raucous few months; and then, primary season starts in January. This will be a hot time in the old town tonight.
News from the economic front:
-- The Bank of England’s Monetary Policy Committee (MPC) announced its decision to buy £75B (US$116B) of government bonds in a new round of quantitative easing intended to hold the inflation rate below its 2.0% target over the medium term and to stimulate the UK's stagnant economy. The MPC also voted to keep the U.K.'s benchmark interest rate at 0.5%. Bank of England Governor and MPC Chair Sir Mervyn Allister King, GBE, FBA, said, “This is the most serious financial crisis we’ve seen, at least since the 1930s, if not ever. We’re having to deal with very unusual circumstances, but to act calmly to this and to do the right thing.”
-- The European Central Bank left its benchmark interest rate unchanged at 1.5% for a third straight month, choosing not to reverse its recent rate increases despite a worsening European sovereign-debt crisis. The euro-zone inflation rate jumped to 3% from 2.5% in September.
-- The Labor Department reported the U.S. economy added 103,000 jobs in September, with the private sector contributing 137,000 jobs. The unemployment rate remained at 9.1% for the third month in a row. A broader measure of the unemployment rate –including people who stopped looking for work or settled for part-time jobs – rose to 16.5% in September from 16.2% the previous month.
Comments and contributions from Update no.511:
Comment to the Blog:
“From here, the important news is the killing of a US citizen by the US government without any due process whatsoever. If that stands, we may as well get used to the loss of lesser rights under the PATRIOT Act and other actions. If the government can kill people, monitoring our communications and all the rest of it fade into insignificance.
“I do not understand your concern with Obama’s lame attempt at health-care reform. That was made to be overturned one way or another. Any time you give a hostile Congress four years before your legislation is enacted, that legislation is strictly a gesture rather than a real change. Not gonna happen.”
My reply to the Blog:
Re: killing al-Awlaqi. Before we go too far down this path, I would suggest re-reading my review of Al-Aulaqi v. Obama [479], or read the case itself. Judge Bates struggled with the legal and moral questions, as we all have. Yet, at the end of the day, I believe he called it the only way he could. Clearly, the al-Awlaqi case existed in a misty, gray zone, but I think Judge Bates pegged it succinctly when he observed, “All U.S. citizens may avail themselves of the U.S. judicial system if they present themselves peacefully, and no U.S. citizen may simultaneously avail himself of the U.S. judicial system and evade U.S. law enforcement authorities. Anwar Al-Aulaqi is thus faced with the same choice presented to all U.S. citizens.” In essence, he cannot claim the protection of the system as he incites others to destroy that system; further, to my knowledge, he never sought constitutional protection; his father did on his behalf.
Re: PPACA. Let it suffice to say, I am not as cynical as apparently you are regarding PPACA. The time allotted for effectivity may have been political, to allow Congress a way out, but I doubt it. I think the effectivity date was to allow sufficient time for the government, the health care and insurance industries, and citizens and companies to prepare for implementation. The 11th Circuit’s Florida v. HHS decision, which I am still studying, offers an exceptional view of PPACA, and more specifically the individual mandate. I believe this case is extraordinarily important legally, constitutionally, personally to all Americans, and worthy of our focused attention.
. . . round two:
“On this particular killing we disagree. I cannot avoid the thought that you cannot see the forest for the trees. In this instance, if a government (any government) can decide to kill one of its citizens without due process, all other discussions of civil rights are pointless. No government is representative with that condition, regardless of what else happens or who bloviates about anything else.
“In the case of health insurance, regardless of the logic given for the time frame, the four years between Congressional passage and implementation is an enormous and unmistakable opportunity for the opponents of the legislation to neutralize it. Given that fact, implementation is not an issue because the law will not be implemented.”
. . . my reply to round two:
Well, now, that was a fairly stiff accusation. I appreciate and share your concern. However, for the moment, we shall disagree. I urge you to read the Al-Aulaqi v. Obama case.
Re: PPACA. Again, we shall respectfully disagree.
. . . round three:
“It's no use telling ordinary people to read a legal case. I have no legal training or background. The information you provide is already the maximum that I can understand and a bit over.”
. . . my reply to round three:
There is no magic to judicial pronouncements. They use the same English language we use. They are quite like reading a philosophy or logic textbook. Nonetheless, as you wish.
. . . round four:
“Having read what I could of some legal decisions, I beg to differ. I suspect you suffer from the most common issue of trainers, not being aware of what you know and how that sets you off from your readers. Your example of a logic textbook is particularly unfortunate, as I have read a couple of them recently in my college experience. I got my grades by ignoring most of the content. The one on ethical analysis, which attempts to apply logic to morality, is the most utter garbage I have ever been obligated to read.”
. . . my reply to round four:
You seem to be in quite the mood this week. Regardless, I concede. There is no point in continuing to waste your time.
My very best wishes to all. Take care of yourselves and each other.
Cheers,
Cap :-)
In an odd timing, the U.S. Preventive Services Task Force – the same group that ignited a 2009 firestorm over the efficacy of routine mammography for breast cancer – recommended the prostate-specific antigen (PSA) test for prostate cancer not be used for routine examination without collateral indicators. Perhaps in the category of TMI: according to a recent British study, young males, 15-19yo, should be ejaculating 3-5 times per week for good prostate health. I apparently failed in that health precaution – out of ignorance more so than purposeful disregard. I say this not to offend, embarrass, or make anyone uncomfortable; rather only to raise the topic of how we teach our children. I failed in that regard as well. Nonetheless, I would like to be the poster-child for routine examinations and early detection. Only time will tell.
The follow-up news items:
-- The House quietly passed the Continuing Appropriations Act, 2012 [PL 112-036; H.R.2608; House: 352-66-0-15(2); Senate: 79-12-0-9(0)] [511], which funds the government at FY2011 levels through 18.November.2011, i.e., a stop-gap measure to buy time, hopefully to pass the FY2012 appropriations.
As indicated in Update no.511, I undertook a reading / review of the salient appeals court decision to be placed before the Supreme Court (SCOTUS) regarding health care reform – Florida v. HHS [11CCA nos. 11–11021 & 11–11067 (2011)]. The three-judge panel rendered their opinion on the appeal of Florida v. HHS [USDC FL ND(PD) case: 3:10-cv-00091-RV/EMT (2011)] [477] – the challenge by 26 states of the massive 975–page Patient Protection and Affordable Care Act (PPACA) [PL 111-148; 124 Stat. 119] [432] {please note that I include the amendments of the Health Care and Education Affordability Reconciliation Act of 2010 [PL 111-152; 124 Stat. 1029] under the PPACA banner}. Before we jump into the pool, please allow me to suggest to those who wish to know more about PPACA, the 11th Circuit’s concluding document offers a succinct summary of PPACA at pp. 21-23 with a broader judicial view, pp. 11-53; the court offers an excellent, unbiased, expanded summary in Appendix A: Overall Structure of Act’s Nine Titles (pp. i-xiii); I strongly recommend reading the short summary, if nothing else, and suggest reading Appendix A. The 304-page, 11th Circuit ruling took an inordinate amount of time for me to read and digest, which is an obtuse reflection of how complicated or difficult this issue is . . . for me, at least. Let it suffice to say the states’ challenge acknowledged acceptance of the majority of PPACA, while objecting to several key elements, with the primary focus on the individual mandate of PPACA (created by Title I, Subtitle F, Part I, Section 1501) versus the Commerce Clause (U.S. Constitution, Article I, Section 8, Clause 3) that delegates to Congress the power to “regulate Commerce.” Chief Judge Joel Fredrick Dubina of the 11th Circuit Court of Appeals wrote for the three-judge panel. Three sentences appear to brightly illuminate the central issue in this case. He noted, “The government emphasizes that Congress intended to regulate the health insurance and health care markets to ameliorate the cost-shifting problem created by individuals who forego insurance yet at some time in the future seek health care for which they cannot pay.” Dubina added, “The [states] stress that Congress's authority is to ‘regulate’ commerce, not to compel individuals to enter into commerce so that the federal government may regulate them.” The court concluded, “[T]he individual mandate exceeds Congress's enumerated commerce power and is unconstitutional. This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority.” Judge Stanley Marcus agreed with the majority on all except their assessment of the individual mandate as he concluded, “At bottom, Congress rationally concluded that the uninsured's consumption of health care services, in the aggregate, shifts enormous costs onto others and thus substantially affects interstate commerce. The individual mandate directly and unambiguously addresses this cost-shifting problem by regulating the timing and means of payment for the consumption of these services. Congress also fairly determined that the mandate is an essential part of the Act's comprehensive regulation of the health insurance market. I would, therefore, uphold the mandate as constitutional, and I respectfully dissent on this critical point.” The individual mandate has no meaning or relevance for the majority of Americans who are covered by health insurance – some purchase their own, some from their employment, and some by virtue of their service to this Grand Republic. Yet, an estimated 50 million citizens are unable to afford health insurance, choose not to have coverage, or are under-insured. In 2008, US$43B in uncompensated medical treatment had to be absorbed by the payers – the cost-shifting mentioned above. The Catch-22 . . . we don’t want to be told we must have health insurance, yet we expect treatment even though we cannot pay for the treatment we receive. That dichotomy is not stable, or balanced, and cannot be sustained. Congress may not have found the correct remedy, but the PPACA Section 1501 requirement is the best effort to date to mitigate the enormous cost-shifting situation. Nonetheless, the bottom line: we simply cannot have it both ways. The State requires a citizen to pay for a minimum level of insurance as a condition to operate any vehicle on public thoroughfares, and establishes penalties for a failure to comply. It could be argued the health insurance requirement is the same; however, the citizen does not have a choice regarding illness (well, other than the argument that preventative medical treatment would avoid many illnesses or at least mitigate the seriousness of illnesses). None of the court documents I have read so far address the preventative or preemptive treatment for life-threatening, highly contagious, infections like influenza, HIV, et cetera. Freedom of choice is the essence of Liberty. Responsibility and accountability for our choices is also vital to an organized society. I have no problem with an individual choosing to reject health insurance coverage, however the consequence you either pay cash for treatment up front as a surety for payment for services rendered, or you are denied treatment. As long as everyone can live with those consequences, then we are good to go with no individual mandate. You just cannot have it both ways. The whole purpose of any insurance is paying a reasonable fee when you don’t need it for the security of not being bankrupted when you do need it. If the individual mandate is determined to be unconstitutional by SCOTUS, another choice for Congress might be new laws to prohibit the transfer of uncompensated treatment costs along with the power to audit hospitals and health insurance companies to ensure that the costs of uncompensated treatment are not passed on, thus doctors, hospitals and health insurance companies would have a choice to make regarding the treatment of individuals who cannot prove they have sufficient means to pay for the treatment they are about to receive; this would naturally have to include emergency treatment as well. In essence, we could require the USG to hire an even larger army of accountants to ensure those who do have Federal health insurance (e.g., Medicare, Tricare, et cetera) are only paying for the services rendered to them rather than supporting the uninsured and underinsured. Of course, such laws within congressional authority would shift the US$43B in uncompensated treatment costs to all other non-Federal health insurance programs as well as à la carte expenses for everyone else. That way, no individual mandate would be required. Now, that sounds fair, doesn’t it? As a citizen and novice student of the law, I think the Supremes have gone way too far with the expansive interpretation of the Commerce Clause ever since Gibbons v. Ogden [22 U.S. {9 Wheat.} 1 (1824)]. As noted above, I am quite conflicted on the constitutionality of the PPACA individual mandate. Being so, I must come down with Judge Dubina. In my parlance, we must move the limits of the Commerce Clause back to a more reasonable and realistic position. Conversely, I believe any citizen who wants health insurance coverage should have it. The Supremes have embraced a federalist bent for many decades now, which suggests they may overturn the 11th Circuit and reflect Judge Marcus’s reasoning. At this point, I urge the Supreme Court to accept the Solicitor General’s petition for preemptive hearing.
One postscript comment: What has not been spoken as far as I can tell is the precautionary / preventative health care necessary to maintain good health and to blunt potentially catastrophic illness in the early stages before it becomes serious or life-threatening.
The continuing debate regarding targeted assassinations:
“Assassinations and the destruction of history”
by Derek Henry Flood
Asia Times
Published: October 4, 2011
http://www.atimes.com/atimes/Middle_East/MJ04Ak01.html
and
“Assassins of Liberty – The death of Anwar al-Awlaki”
by Justin Raimondo
antiwar.com
Posted: October 03, 2011
http://original.antiwar.com/justin/2011/10/02/assassins-of-liberty-2/
A contributor pointed me to an essay by University of Notre Dame Law School Professor Mary Ellen O'Connell, titled: “Killing Awlaki was illegal, immoral and dangerous.” I did not have time to read Mary’s opinion; I intend to do so for next week’s Update. I note that the difference between President Carter’s Executive Order 12036: United States Intelligence Activities, and the Bush/Obama directives for targeted strikes is war, plain & simple. This is not an easy debate. Technology has enabled this capability and the debate, but capture or assassination has been a tool of war since our ancestors began to scratch out a historic record on clay tablets. More to follow; all opinions welcome.
This exchange is reprinted from a different network with the author’s permission:
“I'm too going to read 11CCA opinion [Florida v. HHS].
“Had an extended phone conversation last night with an old friend, [ ], that I've known since a kid, and later he contracted my services in the early 2000's to convert his company to computer accounting (versus their manual bookkeeping methods), and a full contact mgmt/prospect tracking software-driven company. [He] was diagnosed more than 5 years ago with Mesothelioma, malignant lung cancer triggered by asbestos contamination. The fact he is still alive is a miracle, as many victims live only 1 year, with the average max being 3 years. So [he] has beat the odds though they do have a few who have lived 10 years after diagnosis. He was able to do an early retirement in life, at the end of last year. His sons and wife ran the business up to that point. He can afford to take the time off to work on immunity, and he said all the doctor's visits, hospital stays, testing, etc., is almost a full-time job. But he also said that he would never have been able to afford the superior health care he gets (UCLA) had it not been for his business giving him a good income, and then selling the company and using some funds to pay for med-care. He said anyone in a less blessed position, would be dead. His wife did the accounting and said his health care out-of-pocket is costing them about $35K per year, on top of an excellent health insurance plan he purchased but that costs him $1K/month! This week he has to get a new type of SCAN test, that the insurance provider has denied payment for (this time, they paid for the last 2), and so out-of-pocket cost for [his family] is $7,500 for a test.
“The conversation with him caused me much thought about what are the goals of our PPACA, and what will be the real product when implemented. How would it affect someone like [my friend], or let's say many of us who may not have the means to pay for the kind of care [he] gets. Towards the close of conversation, [my friend] said something about his ancestors being from Holland, and that he is not a socialist but wishes the national health care plan could help more people and if he had not had the assets/cash, he would have had to use it.
“You opine/proffer many good things below Cap, causing all of us to think better, about complicated issues in our nation.”
My response:
[Your friend] makes some very good points, and certainly thank him for his honesty and candor. I wish him continued success in fighting that monster. As I’ve said many times, PPACA is not perfect, but at least it makes an attempt to remedy a rather egregious societal problem.
I still have not finished Florida v. HHS [completed now]. Interesting ruling. We still don’t know if the Supremes will honor the USG’s request for preemptive hearing, but I certainly hope they do. Furthermore, it is impossible to predict how the Supremes might decide, but I suspect whenever they render their opinion, it will be a landmark-class decision – after all, there is an epic principle at hand. If the individual mandate is declared unconstitutional, it will render PPACA virtually toothless. With the mood of Congress being what it is, I suspect such a decision will also be the death knell.
. . . a follow-up comment:
“I know this is a very different topic, but would like to see your analysis on the Occupy Wall Street group, perhaps in your next Update. Many I know are very mixed on the activists, or at least who is organizing them behind-the-scenes, in the so-called ‘leaderless’ swell of them across our country. I find their timing ironic, considering the surmounting issues here and abroad. Our GOV needs to pass another spending extension in November or it will again be timed to shut down. I look at the Arab Spring revolutions and wonder too, what entity is behind that as well.”
. . . my follow-up response:
As with the Arab Spring movements, the Occupy Wall Street (OWS) group [if we can even call them that] appears to be “leader-less,” which makes it very difficult to grab a handle on. I perceive OWS in the same vein as the Tea Party (TP) was several years ago . . . an amorphous, public demonstration of dissatisfaction. The TP has not progressed much farther past the embryonic stage, although they have obviously exerted some influence on the political process. Also, the OWS appears to be a left-leaning version of the TP. Indeed, the timing is not good . . . kinda like the union movement in the early 30’s.
As I reported in this week’s Update, the House did pass the Senate’s version of the extension bill HR.2608 [now PL 112-036] that funds the USG at FY2011 levels until 18.Nov. I’m sure you recall the foolishness we had to endure last spring regarding funding extensions upon extensions; I suspect we are now back into that same cycle. Also, the Super Committee on spending reduction has their deadline set at 23.Nov., per the Budget Control Act of 2011 [PL 112-025] [503], and a congressional deadline of 23.Dec. I suspect we’re in store for a raucous few months; and then, primary season starts in January. This will be a hot time in the old town tonight.
News from the economic front:
-- The Bank of England’s Monetary Policy Committee (MPC) announced its decision to buy £75B (US$116B) of government bonds in a new round of quantitative easing intended to hold the inflation rate below its 2.0% target over the medium term and to stimulate the UK's stagnant economy. The MPC also voted to keep the U.K.'s benchmark interest rate at 0.5%. Bank of England Governor and MPC Chair Sir Mervyn Allister King, GBE, FBA, said, “This is the most serious financial crisis we’ve seen, at least since the 1930s, if not ever. We’re having to deal with very unusual circumstances, but to act calmly to this and to do the right thing.”
-- The European Central Bank left its benchmark interest rate unchanged at 1.5% for a third straight month, choosing not to reverse its recent rate increases despite a worsening European sovereign-debt crisis. The euro-zone inflation rate jumped to 3% from 2.5% in September.
-- The Labor Department reported the U.S. economy added 103,000 jobs in September, with the private sector contributing 137,000 jobs. The unemployment rate remained at 9.1% for the third month in a row. A broader measure of the unemployment rate –including people who stopped looking for work or settled for part-time jobs – rose to 16.5% in September from 16.2% the previous month.
Comments and contributions from Update no.511:
Comment to the Blog:
“From here, the important news is the killing of a US citizen by the US government without any due process whatsoever. If that stands, we may as well get used to the loss of lesser rights under the PATRIOT Act and other actions. If the government can kill people, monitoring our communications and all the rest of it fade into insignificance.
“I do not understand your concern with Obama’s lame attempt at health-care reform. That was made to be overturned one way or another. Any time you give a hostile Congress four years before your legislation is enacted, that legislation is strictly a gesture rather than a real change. Not gonna happen.”
My reply to the Blog:
Re: killing al-Awlaqi. Before we go too far down this path, I would suggest re-reading my review of Al-Aulaqi v. Obama [479], or read the case itself. Judge Bates struggled with the legal and moral questions, as we all have. Yet, at the end of the day, I believe he called it the only way he could. Clearly, the al-Awlaqi case existed in a misty, gray zone, but I think Judge Bates pegged it succinctly when he observed, “All U.S. citizens may avail themselves of the U.S. judicial system if they present themselves peacefully, and no U.S. citizen may simultaneously avail himself of the U.S. judicial system and evade U.S. law enforcement authorities. Anwar Al-Aulaqi is thus faced with the same choice presented to all U.S. citizens.” In essence, he cannot claim the protection of the system as he incites others to destroy that system; further, to my knowledge, he never sought constitutional protection; his father did on his behalf.
Re: PPACA. Let it suffice to say, I am not as cynical as apparently you are regarding PPACA. The time allotted for effectivity may have been political, to allow Congress a way out, but I doubt it. I think the effectivity date was to allow sufficient time for the government, the health care and insurance industries, and citizens and companies to prepare for implementation. The 11th Circuit’s Florida v. HHS decision, which I am still studying, offers an exceptional view of PPACA, and more specifically the individual mandate. I believe this case is extraordinarily important legally, constitutionally, personally to all Americans, and worthy of our focused attention.
. . . round two:
“On this particular killing we disagree. I cannot avoid the thought that you cannot see the forest for the trees. In this instance, if a government (any government) can decide to kill one of its citizens without due process, all other discussions of civil rights are pointless. No government is representative with that condition, regardless of what else happens or who bloviates about anything else.
“In the case of health insurance, regardless of the logic given for the time frame, the four years between Congressional passage and implementation is an enormous and unmistakable opportunity for the opponents of the legislation to neutralize it. Given that fact, implementation is not an issue because the law will not be implemented.”
. . . my reply to round two:
Well, now, that was a fairly stiff accusation. I appreciate and share your concern. However, for the moment, we shall disagree. I urge you to read the Al-Aulaqi v. Obama case.
Re: PPACA. Again, we shall respectfully disagree.
. . . round three:
“It's no use telling ordinary people to read a legal case. I have no legal training or background. The information you provide is already the maximum that I can understand and a bit over.”
. . . my reply to round three:
There is no magic to judicial pronouncements. They use the same English language we use. They are quite like reading a philosophy or logic textbook. Nonetheless, as you wish.
. . . round four:
“Having read what I could of some legal decisions, I beg to differ. I suspect you suffer from the most common issue of trainers, not being aware of what you know and how that sets you off from your readers. Your example of a logic textbook is particularly unfortunate, as I have read a couple of them recently in my college experience. I got my grades by ignoring most of the content. The one on ethical analysis, which attempts to apply logic to morality, is the most utter garbage I have ever been obligated to read.”
. . . my reply to round four:
You seem to be in quite the mood this week. Regardless, I concede. There is no point in continuing to waste your time.
My very best wishes to all. Take care of yourselves and each other.
Cheers,
Cap :-)
3 comments:
Cap, you gave us the numbers on your diagnosis but no interpretation. What does this mean? The only clue I have is the death rate of 28,000 out of 218,000 men diagnosed, which works out to 1 in 8. Please tell us more about the meaning of the figures. We are concerned about you.
If that British study is correct and applicable, I guess I won't worry about my prostate health too much yet.
Your suggested alternative to the individual health care mandate, denial of services, will not happen. Most of us are not teabaggers in the political sense of that term. Besides, even the patron saint of sociopathic greed, Ayn Rand, found it necessary to draw on government health care eventually. The teabaggers will follow that role model anywhere.
You and I are old enough to remember 1968; Occupy Wall Street brings back memories of that time. We shall see what happens. In the meantime, I'll be going to more demonstrations here.
Calvin,
I chose not to get very verbose. Those who cared, would ask, as you have done. I will have more to say in the Update when we know more.
The information received from my biopsy confirmed stage 1 prostate cancer. The N & M portion of the stage are for regional and general involvement, respectively; thus, the question marks (not yet determined). The Gleason score is the pathologist’s grading system for this type of cancer; the first number is the primary cell pattern, along the secondary cell pattern equals the total. My score suggest a less aggressive form, but more testing is needed. My next consult is Wednesday to lay out the plan.
I wish I had learned and been able to teach our boys about proper prostate health. Unfortunately, society frowns upon discussing such topics.
Re: individual mandate alternative. My proposal was more tongue in cheek to make the point that we cannot have it both ways – the status quo ante is unstable, unfair and otherwise unacceptable. I want the Supremes to curtail the reach of the USG via the Commerce Clause; yet, I also want the individual mandate to proceed; we can make it better as we gain experience.
I don’t think it is sociopathic greed. The real question for us is balance; where is the balance point? Communism is equally unacceptable as unregulated, capitalistic greed. The balance exists between the two extremes; we must find that point.
Yes, I remember 1968 vividly. Both the OWS and TP movements have flavors of those bygone movements. I am not a crowd person, so you will not find me at that type of public demonstration.
Thank you for your concern.
Cheers,
Cap
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