Saturday, March 31, 2012

The Constitutionality (Or Lack Thereof) of the Affordable Care Act

The Supreme Court must now decide whether individuals can be constitutionally mandated to purchase a basic form of health insurance.  I think there is little disagreement that such a plan would be important in providing health care coverage for most every American.   For insurance companies to offer  customers having major medical conditions a reasonable rate, a pool that includes the very healthy seems necessary to mitigate what would otherwise be a weighty financial burden.

The Court must now decide whether a good bill - a bill that potentially offers major benefits to almost everyone, should be deemed constitutional.  But the constitutionality of a legislative act should not depend on its worth or lack thereof.  Constitutionality should rest solely on proper reading and interpretation of the various articles, clauses, and amendments of which the Constitution is comprised, and the stare decisis factors involved.

The Affordable Care Act, at best, treads the thinnest of constitutional lines.  Never in U.S. history has a citizen been required to participate in a business - in this case the medical insurance business.  No one over 26 years of age can choose to opt out, no matter how rich, no matter how healthy - with rare exceptions.  Constitutionality primarily resides in interpretation of the "commerce clause" contained in
Article 1, Section 8, Clause 3, of the Constitution which empowers Congress and "to regulate commerce with foreign nations, and among several states, and with the Indian tribes." The term commerce as used in the Constitution means business or commercial exchanges in any and all of its forms between citizens of different states, including purely social communications between citizens of different states by telegraph, telephone, or radio, and the mere passage of persons from one state to another for either business or pleasure.

Interpretation has always been directed at parties actively involved in some form of commercial activity.  There has never been a legal compulsion for citizens to participate in a commercial activity should they choose not to do so.  Though the argument can be made that all citizens participate in the "business of health" - if not on an active basis, on a passive basis - by the mere virtue of being alive, the case is hardly dispositive.  To add to the interpretive complexity, citizens are not actually required to participate in the "business of health," but in the "business of insurance."

My feeling is that a federal requirement to buy health insurance, though advantageous to the general welfare on its face, does not pass constitutional muster.  Matters that the government feels are proper for the general health and welfare of its citizens, should be supported by the citizenry via a properly applied tax or tax credit.    The taxing power of the federal government remains unquestioned and without challenge.

It appears that the legislative process, finding itself unable to provide needed health care to the citizenry via a "Medicare for all" system, passed an act that compels purchase of a commercial product - an act that stretches the interpretation of the Constitutional commerce clause too far.

Wednesday, March 21, 2012

Health Care Rationing - What Is a Death Panel

Health care rationing is discussed by Professor Alan B. Cohen in a Letter-to-the-Editor in today's NY Times (March 21, 2012).  In his letter, Professor Cohen beclouds the true issue that "rationing" implies.  The term is understood to apply to the so-called "death panels," an unfortunate euphemism for limiting health care in certain situations.  Americans must come to understand the enormous percent of the medical dollar consumed during the last years of life (estimated at 33% in some studies), most often without significant life-extension, and the prodigious sum expended on those with terminal illnesses, often on procedures and pharmaceuticals that are at best of questionable value.  The health care dollar is best applied where it is clearly shown to be of significant benefit. We need "panels" to perform well-constructed "outcome studies" to properly evaluate how the shrinking health-care dollar is best applied, and to consider restricting re-imbursement to those applications.

Except for the unlikely discovery of some future inexpensive panacea, Americans must come to accept the fact that the existential advances in medical research and technology (also very expensive) - their intent being to eliminate disease and extend life - are associated with massive increases in cost.  This is the true "reality" that "life-panels" will need to address.

Sunday, March 11, 2012

A Jewish State and its Anthem

Recent photos and videos of the swearing-in ceremony of the new Chief Justice of Israel depicted a respectful, but silent Supreme Court Justice Salim Joubran during the singing of the Israeli national anthem "Hatikvah ( Hope)."  Justice Joubran, a Christian Arab, born in Haifa, apparently feels constrained when asked to participate in a vocal rendering of the anthem.  An English translation of the anthem is as follows:

As long as deep in the heart,
The soul of a Jew yearns,
And forward to the East
To Zion, an eye looks
Our hope will not be lost,
The hope of two thousand years,
To be a free nation in our land,
The land of Zion and Jerusalem.

One can understand the Justice's reticence.  The anthem is most definitely a composition that is devoted to Israel as the hope and soul of the Jewish people.  Long before there was an Israel, this poetic expression representing millennia of Jewish yearning, composed by Naphthali Herz Imber in 1878, and adopted as an "anthem" by the Zionist convention of 1897, has, in all liklihood, been sung by most every Jew at one time or another.  Recordings of liberated survivors of the Bergen-Belsen concentration camp singing "Hatikvah" upon their release, have been reproduced and replayed during Jewish High Holy Day services.   I think it is fair to say that the anthem has almost become a part of the Jewish liturgy and is performed at many Jewish occasions around the world, independent of any Israeli association.

This has raised a controversy in Israel and in the rest of the Jewish world.  Is it acceptable for non-Jewish Israelis to stand silent during the singing of the nation's national anthem?  After all, 20% of Israelis would fall into this category.  Should the words of "Hatikvah," then, be altered to accommodate this significant non-Jewish population?

A resounding "yes" to "standing silent."  No one should be expected to intone words that do not express one's beliefs.   No citizenry of any state should be required to sing its anthem, or pledge allegiance to it.  Loyalty does not require public expression of loyalty.  A resounding "no" to altering the anthem's content.  Israel is The Jewish State! " Hatikvah" beautifully expresses that existential fact.  Provided that Israel exists as The Jewish State,  the non-Jewish citizenry must remain aware of and respect Israel's Jewish history and Jewish identity.