It had been an intense, and at times tense, morning before a full house of more than 200 in the Appellate Courtroom. Meg Kissinger, a reporter for the Milwaukee Journal Sentinel, described “Imminent Danger,” the large project she authored which ran in the newspaper in recent weeks. It described how a revolution in American mental commitment laws, which began with a federal court ruling in a case involving a West Allis woman in 1972, had led to far more people with mental illnesses living outside of mental institutions. Some of them refuse treatment and a few have committed violent acts.

Kissinger and the newspaper had been strongly criticized by some members of the audience who thought the series was sensationalistic and left people with a harmful and wrong image of those with mental illnesses as dangerous. One speaker, Tom Zander, a psychologist, lawyer, and long-time prominent advocate for alternatives to mental commitment, had sharply attacked the series as based on what he regarded as false premises, including the notion that the West Allis case had led to specific horrible crimes. (Zander is an adjunct professor at Marquette University Law School.)

Throughout the morning, which included presentations by experts and by family members of people who had long-term mental illnesses, the difficulties of dealing with mental illness, the failings of the current system for helping people, and the high emotions that the subject raises were clear.

Then it came time for the speech from Roy, who was the academic advisor at Virginia Tech to Seung-Hui Cho, the student who in 2007 killed 32 others on the campus before killing himself. In 2005, Roy spent a large amount of time dealing with Cho, who people in the English department where she taught thought was dangerous. She encouraged him to get treatment, but there was little that could be done to require him to do that. When he did seek counseling, and unrelated to Roy, his situation was not handled well by counselors at Virginia Tech. Roy later wrote a book, No Right to Remain Silent: The Tragedy at Virginia Tech.

Roy said she listened with mouth open to the prior speakers. She said she had respect for what the Journal Sentinel had done and for Kissinger, but she respected those who criticized the newspaper project. She said it was important to keep in the mind the great hostility that exists among many people across the United States to those with mental illnesses. She said she has gotten responses to her work from people who literally want to kill such people.

“You would be amazed at the antagonism and the ignorance and the prejudice that exists in this country,” she said. “One of the great things about this (conference), whatever our differences, and I know we differ from each other . . . But the one thing that is true in this room is that everyone who is here today cares about those who suffer from mental illness. There is no doubt in my mind about that.

“And if we can’t find some viable, creative solutions to some of the problems that are plaguing us, who can? Probably no one. So that is why we have to persevere even when we get impatient with each other.”

“We all come from a place of suffering” if we are involved in these issues, Roy said. “All of us understand something about this situation that needs to be shared.” She called on the people in the room to bring common sense and compassion to their dialog.

She said the Journal Series stories showed “there are more enlightened paths we could take,” including more community-based treatment programs that can help the large majority of those with mental illnesses.

At the same time, she said, more needs to be done to spot and to intervene with those who may be on the path to committing violent acts. Everyone acts like they are surprised when someone such as Cho goes on a killing spree, she said, but there are often people who shouldn’t have been surprised. She asked, “At what point does surprise become denial” that something might have worked to avoid tragedy?

There may be no way to stop all such tragedies, Roy said, but “there are windows of opportunity (to reduce the number), and they present themselves rarely.” She urged those who are involved to work together so that when those chances are presented, the response is successful. “It’s time for us all to respond together,” she said.

The conference was co-sponsored by the Law School and the Journal Sentinel. A video of the event can be viewed by clicking here.

Dan has had quadriplegia since a traffic accident when he was three years old, and uses a ventilator because his chest muscles don’t allow him to breathe on his own. He’s mentally sharp, and verbal since the ventilator is attached through a trachea tube. He has earned an AA degree.

He wants to switch off the respirator so he will stop breathing. Specifically, he wants help from Froedtert Hospital, where he has received his care over the years, to switch off the respirator.

My totally unscientific poll revealed that the well-settled law in this area is about as well-known as speed limits. Dan has a right to refuse medical treatment, and no one thinks the use of a respirator is anything other than medical treatment.

His liberty right is based in our Wisconsin state constitution’s declaration that people are free and independent. Our supreme court says that includes the right to accept or refuse treatment. Across the border in Illinois, where Dan lives, statute confirms the right, which in any case has been recognized under the U.S. Constitution. A competent individual has a right to refuse treatment though the result inevitably is death.

That only takes the matter so far, though. It does not explain why Froedtert insists that Dan must take antidepressants and have therapy for at least a year, and they might not cooperate even then. That prompted Dan to say “People are messing with me.” It also does not explain why Dan has asked for his doctors’ OK. It is worth noting that when Dan went on a hunger strike for 4 days his nurses withdrew from his care.

The state has its own interests to balance with a person’s right to decide. One is maintaining the integrity of health care professionals, hence the nurses’ action. More broadly, the state has an interest in preserving life and preventing suicide. There is no doubt at this point what Dan intends by flipping the switch.

The state and health care providers want to know Dan really intends the result so some reasonable steps are in order. His Froedtert physician referred him to palliative, or comfort, care, the kind hospice delivers. One psychiatrist found Dan to be competent to make the decision, as his own physician apparently did. Other health care providers doubted Dan’s capacity, and initially said he must be declared competent by two psychiatrists. They called for delay of at least a year of medication and counseling for depression. Dan got disgusted and refused to cooperate with the plan.

Dan might be clinically depressed. Courts have seldom dealt with depression and to what extent it affects capacity. It seems like a possible wrong road, however, because outliving his $4 million accident settlement, being faced with a move to Medicaid-paid nursing home care, and seeing his mother age while caring for him could cause him to answer psychological questions like one clinically depressed. To say Dan might not feel better is not to way he’s just down in the dumps. He is not required to be an emotional Superman.

However, it would also be wrong for temporarily-able-bodied people to conclude his quality of life is so low that it makes sense to give it up. Such a conclusion rankles disability advocates, many of them severely disabled themselves. The Bouvia case (179 Cal. App. 3d 1127 (1985)) gives the distasteful (indeed, depressing) sense that the judge finds Bouvia’s life to be not-worth-living when he acknowledges her right to have an unwanted nasogastric feeding tube removed. When considering the lives of Jean-Dominique Bauby, a man with locked-in syndrome which allowed him motion in only one eyelid who dictated his experience in The Diving Bell and the Butterfly, and of soldiers blown apart by IEDs as reported at length yesterday (October 13) on public radio, we know that many are glad to live with disability.

The law does the balancing of conflicting interests of the patient and the state case by case. On similar facts in State v. McAfee (385 S.E. 2d 651 (1989)), the Georgia supreme court ruled that Larry James McAfee had the right to refuse to continue to use a ventilator. Interestingly, the court considered the state’s only interest to be one of preserving life and that it did not outweigh McAfee’s right. (See also http://www.mikemason.net/work/magazines.php?cat=society&id=10 (1990) for more detail) The hearing was held four years after McAfee’s road accident rendered him quadriplegic, and about three months after his petition. Such a view means, correctly I think, that a case like Dan’s is distinct from all cases where some additional means causes death, from the Kevorkian cases. It means that there should be no need to consider moving to Washington, Oregon or Montana, states that have a process for physician assisted suicide.

The McAfee court also held that a patient has a right to a sedative when ventilator support is withdrawn. The Bouvia court affirmed that the petitioner had a right to comfort care when foregoing life-sustaining treatment. Our supreme court made a similar observation in Edna M.F. (563 N.W. 2d 557 (1997)). So, this is where Froedtert Hospital figures in this. While no individual health care provider could be required to turn off the ventilator, Dan can ask for help, for comfort care. Someone who believes in his right to autonomy would step forward. Indeed, his mother says she’ll back him up whatever he decides, though his family is in turmoil over the matter and are probably not good choices to act.

Another whole story could be told about policy that might keep people with disabilities at home, even if round-the-clock care is necessary. Still more might be said about the people who have come forward to tell Dan they understand his pain because they and their families live it, and they will help him live. It is said that Larry McAfee, having won his battle for self-determination, declined to use it.

It is unclear what the judge would decide, but Dan can ask for a decision if the wait gets too long. The choice is indeed about self-determination and hope.

Once I got clued-in, I began seeing the link everywhere. The Veteran Affairs Hospitals and clinical ethics programs are doing wonderful things (too lengthy to describe) and creating evidence. You see, high-level health-care people like evidence and measures and metrics, which has always been an area where clinical ethics has traditionally had problems producing. I love the VA because it has lots of potential, and does really good work: it’s actually very hard not to like and sets the standard in the field. The call now is for everyone else to catch-up, or even better yet, to innovate. That’s what my team has been working hard on, though we at times look back on what’s come before for inspiration.

I guess the link-in for up-and-coming JDs would be QI that exists in legal fields. Looking at QI as a meta-analysis by practitioners (at my hospital, most QI analysts are RNs) to improve the delivery of service, are there opportunities in this field for lawyers (I am sure there are) that can be taken advantage of? The underlying point I suppose I am making is that this is one approach to finding fulfilling work.

For this symposium, we bring together a variety of practitioners and academics to speak on current topics about the use of pharmaceuticals for residents of long-term care facilities. Our speakers will address the impact of regulatory requirements on the timely delivery of medications to residents in long-term care facilities. They will discuss the impact of consumer choice and cost on the drug markets. They will also consider the implications of the medicalization of aging as a disease rather than treating aging as a natural process. Finally, we will close with a discussion of the legal, ethical, and medical concerns surrounding the ability of long-term care residents and their decision-makers to refuse medications and treatment.

I learned a great deal from the portions of the conference I attended — much of it rather disquieting — and I would recommend the video to anyone with a professional or personal interest in the way that drugs are administered in long-term care facilities.

Recently I assisted in a case of a 15-year-old Jehovah’s Witness rushed into the emergency department “bleeding out.” Jehovah’s Witnesses (JWs) regard blood transfusions as a violation that has profound spiritual implications, and accordingly, refuse such transfusions even when such treatments can be life-saving. Supporting JWs in their refusal is an early-learned bioethics lesson as students explore issues of patient autonomy and respecting cultural values. Competent individuals have the right to refuse unwanted medical treatments, even when refusal will lead to death. But this was a 15-year-old.

The patient’s stats were very low and emergent surgery was needed. The patient’s mother didn’t want the teen to receive a transfusion. Moreover, the teen didn’t want to be given one either. There are cases when adolescents can show themselves to possess the decisional capacity and maturity to give informed consent and choose not to receive life-sustaining treatment. This is known as the “mature minor” exception. Proving oneself to be mature often requires a frank discussion with a judge or a hospital ethics committee. Just as in any other case of informed consent, minors must possess understanding of the diagnoses and prognoses, the ability to communicate their values (and apply them to the medical situation), and so forth. Given the life-and-death nature of the decision, time for deliberation is often crucial — including time to provide the minors with support from family, religious leaders (for cases such as JW refusals), and health care providers. Chronically ill children often have a very mature and nuanced understanding of their disease processes and an ability to weigh values and the benefits and burdens of treatment. However, in my case, the 15-year-old was extremely distressed given the emergent situation and unable to have any real conversation. The mature minor route was not available.

But I started to wonder about ways to improve how we respond to these situations. We talk about advance directives and the importance of declaring one’s wishes and discussing with family members about how to respond to health-care situations when one is unable to speak for oneself.

Can there be a system put into place in the JW Church to designate minors as mature to provide evidence for possible and unanticipated medical scenarios?

Yes, I realize that non-adults can’t create true directives. I’m not trying to create a legally binding and dispositive document that will “solve all JW conflicts around children between ages 13 and 17 and 364 days,” but rather a proactive discussion that will inform the ethical decision-making process. Minors can, for instance, express their organ donation preferences on their licenses: sure mom and dad can override what it says, but it still allows a discussion of “what the patient would want” to occur.

I’m writing this off-the-cuff. I’m not sure if this idea has already been explored (if so, post a link in the comments). But if it is somewhat original, I wonder how it can work. Perhaps an administrative body can be created or perhaps a friendly judge can make himself or herself available. Perhaps a hospital system can make itself available to have these conversations with perfectly healthy minors and document the discussions so future narratives can have context.

Respecting patient autonomy is generally an easy thing to do. Making decisions for minors muddies the waters, and emergency situations further complicate the matter. I welcome comments on this idea of mature minor advance directives — are they feasible? Will they complicate more than clarify?

An atheist surgeon stands with a family in a respectful silence as a prayer is said over a dying patient.

An evangelical nursing manager diligently works to ensure that nowhere in her hospital, will a same-sex partner be denied access from an ill loved one.

A black social worker provides support for a man adorned in swastika tattoos

The same black social worker provides support for man who regales her with his misogynistic opinions

Management of various political persuasions refocuses conversations from “universal health coverage” to “good of the patient”

A unit of nurses in a homogeneous white, Christian community hospital spend their off-hours learning how to be more aware of the spiritual and social needs of their Muslim patient.

An oncologist struggles with not being able to provide chemotherapy to a patient with what he considers very treatable cancer because the patient opts for a homeopathic alternative.

A trauma surgeon watches her patient expire in part because the patient forbade blood transfusions due to her faith as a Jehovah’s Witness.

A hospital administrator who is also a nun wrestles with a difficult decision before allowing the hospital to proceed with an abortion to protect the health of a mother, and is later excommunicated.

I’ve witnessed all of the above examples save the last, which made headlines last year. The point isn’t that the choices were right or wrong (though I personally commend them all) but that they are all examples of how the day-to-day world of health care prevents any of its providers from living in a black-and-white world. On a daily basis, health care provider’s beliefs and values are challenged and often, made more nuanced. I’m not the first to recognize this quality of hospital life—heck television did long ago – I am just glad to be a part of it.

The Bioethics and Medical Humanities Department at MCW is the third-oldest bioethics program in the nation. Its faculty are well known and active in the bioethics community, and the curriculum is robust and challenging (with good planning, you can walk away with a MA along with the JD without lengthening your graduate experience). Though, much of what I do involves varying degrees of dispute resolution. Hey, did you know that Marquette University Law School once again ranks in the Top 10 in the nation in alternative dispute resolution?
6TH IN THE COUNTRY!  (I’m not sure how to put that in bold. Please—imagine that in bold. Consider adding an extra exclamation point.)

I did a cursory (actually, a thorough) search of the Law School’s website, and I couldn’t find mention of that achievement so I wanted to highlight it here. Kudos to Andrea Schneider, Jay Grenig, Janine Geske, and Natalie Fleury for their excellence in running that program. I had the opportunity to teach negotiation to medical students in Chicago last year, and it was the foundation laid by Andrea Schneider and Joanne Lipo Zovic that prepped me to facilitate that class. But you want to know something else?

MARQUETTE UNIVERSITY HAS A GRADUATE PROGRAM IN DISPUTE RESOLUTION!

Now, this is my personal opinion, but I am going to wager that one reason MULS grads are so grossly competent and savvy in dispute resolution is in part because a significant number of us went down the block to take advantage of the Center for Dispute Resolution’s excellent program. It’s a multi-disciplinary program where your classmates are bringing perspectives from a number of fields, such as teaching, environmental engineering, and pastoral care. And you’re all (presumably) united by a passion for conflict resolution. Graduate-level work makes for a more well-rounded practitioner.

So… yeah… that about captures the areas of interest I will focus on this April: alternative careers for the JD, bioethics, and conflict resolution. I may also post on other things. Like the importance and appropriateness of levity in austere environments, fashion, and perhaps Dr. Who.

Hey, did I mention, MULS has a stupendous ADR program? I am very proud to have been able to participate in the program. It’s the first day of April and I can think of no better way to ring-in this month by telling Andrea Schneider what a great job she is doing. If you agree, join me in sending her a celebratory email this first day of April. The Andrea I know has always been very gracious in responding to each of her emails.

Alright, the law of subrogation is fairly simple.  If one who is secondarily liable pay a debt that should have been paid by the primarily liable person, the one who pays the debt steps into the shoes of the creditor to pursue the one primarily liable.  Subrogation also applies to an indemnity insurance situation.  An insurer paying on its policy when its insured sustains a loss caused by a tortfeasor may pursue the tortfeasor for the amount the insurer paid.  It thus becomes the alter ego of its insured, the tort victim, as to the tortfeasor.  In this context both insurance and tort law concern themselves with indemnity.

A wrinkle has been added to the basic context in Wisconsin and elsewhere.  The Wisconsin Supreme Court determined that an insurer’s subrogation rights remain inchoate until its insured is “made whole” by the tortfeasor for the losses sustained. [Garrity v. Rural Mut. Ins. Co., 77 Wis.2d 537, 253 N.W.2d 512 (1977); Rimes v. State Farm Mut. Auto. Ins. Co. 106 Wis.2d 263, 316 N.W.2d 348 (1982).]  No real problem with that, as the insurer is a commercial risk-taker while its insured is not and a pecking order here should favor the latter over the former.

But ah, here comes the rub!  In Koffman v. Leichtfuss, [246 Wis.2d 31, 630 N.W.2d 201 (2001)] the court was confronted with a case in which the plaintiff received medical treatment for injuries sustained in an accident.  The total amount billed by health care providers was $187,931.78.  However, through certain contractual relationships with the plaintiff’s health care providers, the plaintiff’s insurers received the benefit of reduced “contracted rates” and were able to satisfy the amounts billed by the providers with total payments of $62,324.  The plaintiff personally paid $1,869.43 in deductibles, co-payments, and out-of-pocket expenses.  The court, nevertheless, held that the plaintiff was entitled to seek recovery of the reasonable value of medical services, the amount billed, without limitation to amounts paid.  That ruling would make sense if the medical services had been provided gratuitously.  That would be no more than an application of the collateral source rule.  But in Koffman, the ruling impacts not only upon the tortfeasor’s liability but, because of the “made whole” rule, the insurer’s ability to advance its subrogation rights.

Even though the two dissenters did not say so in Koffman I will.  If the law says that, the law is an ass! [Charles Dickens, The Adventures of Oliver Twist 399 (Oxford Univ. Press 1981 (1838)]

“We have made Wisconsin really the health care leader in the United States,” Doyle said during an “On the Issues with Mike Gousha” conversation at Marquette University Law School. “We really have become the model for much of the nation on how to provide health care.”

During Doyle’s tenure, the Badger Care program for low to middle income working people has expanded and, Doyle said, Wisconsin has had the lowest percentage of uninsured residents of any state in the country except Massachusetts, which has a mandatory  health insurance law. 

Doyle, a Democrat, listed health care issues first when Gousha, the Law School’s distinguished fellow in law and public policy, asked him what he intended to keep working on until his last day in office, which is less than five weeks away.

Doyle said he hopes the politics surrounding health care issues will calm down and both Wisconsin and the nation can move forward with making health care affordable for all. The health plan backed by the Obama Administration and passed by Congress, which Republicans used as a major issue that spurred their sweeping victories in the November elections, would mean hundreds of millions of dollars in additional federal support of health care in Wisconsin, Doyle said.

Doyle said health insurance exchanges which are slated under the law to begin in several years could “transform the health care marketplace” and  substantially reduce what many middle class families pay. The goal is for such exchanges to offer people ways to purchase health plans privately at reasonable cost.

Doyle also put his role in education high on his list of accomplishments. He said the percentage of four-year-olds going to kindergarten has increased from twenty percent to eighty percent since he took office and Wisconsin has gone from last in the country to twenty-ninth in the number of eligible children who are using school lunch programs. He also pointed to vetoes he made that kept education funding at higher levels than the legislature approved.

Asked by Gousha if he regretted the way things turned out for the proposal he pushed in 2009 to give much of the power over Milwaukee Public Schools to Milwaukee’s mayor, Doyle said, “Yes.” The plans went nowhere in the legislature. Doyle said he still thought mayoral control would be more effective than School Board governance in pursuing improvement in MPS. In general, he said, people need to get past the entrenched fights over education issues. “This community just couldn’t get past these old fights” in 2009, he said, but he thought the idea of mayoral control will surface again.

Doyle made it clear that he still favors a high speed rail line from Milwaukee to Madison, but said he thought he did the right thing by stopping further work on the proposal after Republican Scott Walker, an opponent of the idea, won the governor’s race.

“I thought it was appropriate to defer, in the end,” Doyle said. He said that without support from the incoming leaders of state government, the train idea would not become fully successful, even if he had pushed it into existence.   

On the other hand, he said some of the things critics of the rail plan have said, including that $800-million plus in federal aid could be used for other purposes, are “just fiction.” And he said twenty years from now, if and when a successful high speed line goes from Chicago to the Moline, Ill., area and up through Iowa to Minneapolis, “people may be saying, why doesn’t this train go through Wisconsin?”

Doyle said he made bigger cuts in state government than any other governor had and that Wisconsin’s ranking among states when it comes to tax burden improved while he was in office. He said it was good to keep looking for efficiencies in government but he disputed the idea that state government was bloated.

Doyle said he was comfortable with his decision not to seek re-election. “I chose not to run,” he said. “I think it was the right decision for me and my family.”

He did not give specifics when Gousha asked him what was ahead, but said he intended to stay active. “It does appeal to me to be in the private sector,” he said. “I think that’s the direction I’ll go.” 

Video of Gov. Doyles remarks will be posted at this Web address.

Mr. Johnson referred to “Tort Reform” and the frivolous lawsuits against medical professionals.  He said that an estimated $2-3 billion dollars was spent on frivolous suits that have forced doctors to practice “defensive medicine” in Wisconsin.  Whether accurate or not that number has raised eyebrows.

The healthcare crisis facing our nation seems to be the driving forces behind the particular interest in frivolous (or at the least possibly frivolous) medical malpractice actions.

 What is tort reform? Generally, tort reform seeks to limit the costs associated with medical malpractice claims by adopting statutory or other regulatory law to limit civil liability. The primary goals are to limit (1) who can be found liable, (2) when they can be found liable, (3) how much they may be liable for, and (4) to whom they must pay. One common approach is to cap noneconomic damages that the healthcare provider must pay. In Wisconsin, for example, the noneconomic damages are currently capped at $750,000 per occurrence. Wis. Stat. §893.55(d)(1) (2010). In 2005, however, the Wisconsin Supreme Court held in Ferdon v. Wisconsin Patients Compensation Fund that a $350,000 cap on noneconomic damages was unconstitutional.

 Are medical malpractice claims really a driving force in the healthcare crisis? Or, could the healthcare crisis be driving medical malpractice tort reform? Here are a few positions that I found to lay a baseline framework to examine a question that might never be accurately answered.

 A presumably unbiased tort reform perspective:

 On April 15, 2010, the Congressional Research Service issued a report, “Medical Malpractice Insurance and Health Reform.” It stated:

In terms of direct costs, medical malpractice insurance adds relatively little to the cost of health care. According to the National Association of Insurance Commissioners (NAIC), medical malpractice premiums written in 2008 totaled approximately $11.2 billion, while health expenditures are estimated by the Congressional Budget Office (CBO) to total $2.6 trillion. Indirect costs, particularly increased utilization of tests and procedures by physicians to protect against future lawsuits (‘defensive medicine’), have been estimated to be much higher than direct premiums. These conclusions, however, are controversial, in part because synthesis studies have claimed that national estimates of defensive medicine are unreliable.

 “No” to tort reform perspective (from Professor Robert Field in his post “Why is Health Care So Expensive?“):

Health care costs more in the United States than anywhere else on earth. It’s not even close. We spend almost twice as much as the average of developed countries, and almost forty percent more than the second most costly country, which is France. 

This would make sense, if we were healthier as a result. Unfortunately, we are not. We get chronic diseases at least as often as citizens of other countries, we rank 38th in life expectancy, and our infant mortality rate is number 33. The highest life expectancy in the world is in Japan, which spends about half per person what we do on health care. Something is driving up costs in the United States, and it is not an expense that gives us better health. 

So, why does American health care cost so much? 

Many people point to malpractice liability as the culprit. We are definitely the most litigious country. However, direct costs of medical malpractice amount to only about one percent of total system expenses. The bill is higher if you also consider the cost of defensive medicine, which is the extra tests that some physicians order to try to protect themselves from lawsuits, but no one knows by how much. Even the highest estimates put the cost of defensive medicine at less than three percent of the total – a large number but hardly enough to account for the high system cost alone. 

“Yes” to tort reform perspective (from Newt Gingrich in his opinion piece “How the GOP Can Fix Health Care“):

CAT scans, blood tests, ultrasounds, Caesarean sections- in many instances, these diagnostic tools and procedures are vital for treating patients. Too often, however, such procedures are ordered unnecessarily and drive up the cost of medicine for patients, taxpayers and insurance carriers… 

Doctors order these procedures to protect against frivolous suits filed by trial lawyers seeking an easy payout, particularly after a doctor makes a simple mistake. Seventy-three percent of the doctors surveyed said they had practiced defensive medicine in the past year. As a result, American patients not only endure extra hours of tests and treatments but also pay more for health care…

Congress must give states the incentive to reform their civil justice systems so that lawyers will think twice before suing doctors for frivolous cases.

These reforms would allow doctors to stop playing defense, and make it possible for patients and taxpayers to better afford health care.

 Is Tort Reform the answer? Or, should we be spending our time and money on healthy lifestyle advocacy or preventative care programs? Maybe . . . but that’s a job for another day.

The obvious starting point might be Butch Cassidy’s (or Paul Newman’s) famous question, “Who are those guys?”  Amy Gardner at the Washington Post tries to answer that question here (hat tip to Steven Easley).  Despite her best efforts, a definitive picture of the Movement remains elusive:

[A] new Washington Post canvass of hundreds of local tea party groups reveals a different sort of organization, one that is not so much a movement as a disparate band of vaguely connected gatherings that do surprisingly little to engage in the political process.

The results come from a months-long effort by The Post to contact every tea party group in the nation, an unprecedented attempt to understand the network of individuals and organizations at the heart of the nascent movement.

Seventy percent of the grass-roots groups said they have not participated in any political campaigning this year. As a whole, they have no official candidate slates, have not rallied behind any particular national leader, have little money on hand, and remain ambivalent about their goals and the political process in general.

Jonathan Haidt does some psychoanalysis of libertarians, liberals and conservatives, and tries to show that it is not a love of liberty that unites Tea Partiers, but rather a belief in karma:

The notion of karma comes with lots of new-age baggage, but it is an old and very conservative idea. It is the Sanskrit word for “deed” or “action,” and the law of karma says that for every action, there is an equal and morally commensurate reaction. Kindness, honesty and hard work will (eventually) bring good fortune; cruelty, deceit and laziness will (eventually) bring suffering. No divine intervention is required; it’s just a law of the universe, like gravity.

The whole article is at the Wall Street Journal.  I am not sure that I buy the argument, but the image of Sarah Palin wearing a sari and banging a tamborine is an appealing one. 

The issue that seems to unite the Movement more than any other seems to be the Obama administration sponsored Affordable Health Care Act.  Litigation over the individual mandates contained in the legislation is being closely watched.  Theresa Weisenberger gathers the cases and issues in one location over at the JET Law Blog (the Vanderbilt Journal of Entertainment & Technology Law).  Meanwhile, over at Balkinization, guest bloggers Gillian Metzger and Trevor Morrison provide constitutional commentary.  Their opinion of the Florida District Court case:

In short, the court’s declaration that the individual mandate cannot be deemed an exercise of Congress’s tax power is built upon a hostile reading of the record. If the presumption of constitutionality means anything, surely it is that in areas not subject to a Supreme Court-mandated clear statement requirement, courts should give Congress the benefit of the doubt.

Meanwhile, the issue of immigration seems to confound the Tea Party.  Stewart Lawrence at the Daily Caller examines the contradictions in this post:

Will the Tea Party Movement expand beyond the borders of the United States and become an international movement?  Anna Leutheuser at the Heritage Foundation thinks it will:

The principles that precipitated the first Tea Party – a respect for the rule of law, and desire for limited government and individual liberty – are universal; and they are just as threatened now as they were at the time of the American founding.  This time, however, the United States is not alone in coming to their defense.

Finally, we go back to Balkinization to give Jack Balkin the last word on the Tea Party Movement: 

What changed during the 1960s and afterwards was the creation of a New Right, and the joinder of social conservatives, business conservatives, anti-welfare state conservatives, anti-regulatory conservatives, anti-tax conservatives and foreign policy conservatives. That alliance made it possible for the rich and for corporations to bankroll a wide range of conservative causes, in the belief that a rising tide (of anger) would lift all conservative boats. Corporate interests could ally themselves with the Republicans’ form of populism as long as social conservatives would keep voting for candidates who would favor business interests and seek to lower taxes on the wealthy and corporations.

This basic feature of modern American conservatism has not really changed with the emergence of the Tea Party, even though the Tea Party presents itself as a new form of political organization, alienated in part from the mainstream of the Republican Party. The Tea Party, however differently it may be organized, is just the latest incarnation of the most conservative elements of the late 20th century conservative coalition, this time featuring a special emphasis on opposition to the size of government and government taxation. That emphasis makes the Tea Party a natural object of corporate support, albeit mostly hidden corporate support, because many in the Tea Party also are not that fond of the Wall Street bailout either.

That’s all for now.  As Craig Ferguson says, “I look forward to your letters.”  Please remember our comments policy:

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Paul objects to federal policies regulating business due to his reading of the U.S. Constitution.  His political philosophy might best be characterized as extreme libertarianism.  Following the objectivist principles of Ayn Rand, he argues that the public should be left to their own devices and that greater social benefits will accrue naturally over time from the enlightened (and rational) self-interest of individuals.  Ironically, Paul’s embrace of self-interest as a moral good in itself is directly at odds with the view of the Framers of the Constitution.  The people who designed our constitutional system spent much time criticizing the biases, prejudices, and self-interested motivations of the general public.  The system of government that they created was intended to ameliorate the very aspects of human nature that objectivists like Rand Paul celebrate.

In fact, it is difficult to find a historical basis for Rand Paul’s vision of the U.S. Constitution.  In 1789, the Framers believed that state legislatures had been captured by parochial commercial interests who wielded power in favor of a self-interested and growing “middling” class.  It was the hope of James Madison that “disinterested” elites would come to dominate politics in the federal government, where they would promote policies that promoted the common good rather than narrow economic interests.  John Adams seemed resigned to the idea that an aristocracy of sorts would become necessary in the new republic in order to ensure that laws were enacted in the public interest and that the machinery of representative democracy was not corrupted for selfish ends.  Neither man was optimistic that any good would result if the general public was left to its own devices.  

The Framers would have had little difficulty accepting the idea that the federal regulation of business entities promotes the common good of the nation, in ways that state laws or the private market do not.  In a recent post, Professor Michael McChrystal discussed the classic objective of tort law to ensure that responsible parties will bear the economic costs for injuries that they cause.  However, at best tort law is an attempt to remedy injuries that have already occurred.  In contrast, the federal regulation of business entities is often intended to prevent business entities from imposing costs on third parties in the first place.

Economic theory is helpful here.  As defined by Professor Paul Johnson in A Glossary of Political Economy Terms, “[a]n externality exists whenever one individual’s actions affect the well-being of another individual — whether for the better or for the worse — in ways that need not be paid for according to the existing definition of property rights in the society. “

Business entities can maximize their profitability to the extent that existing law allows them to externalize their costs, thereby forcing third parties to bear some of the costs of production for the business’ good or service.  For example, a cardboard box producer that dumps chemicals used in the manufacture of its boxes into the environment, without paying for the safe disposal of those chemicals, has externalized its costs of production to the extent that the community surrounding the factory is impacted by the dumping.

 When political commentators charge that liberals believe that the government is capable of solving problems, whereas conservatives believe that government is the problem, they are referring to the fact that political liberals tend to see government regulation of the marketplace as a vehicle for reducing the negative externalities that would exist in an unregulated market.   Liberals accept the premise that society in general has an interest in limiting externalities through government regulation of the marketplace.  It follows, therefore, that liberals tend to view deregulation with suspicion as little more than a policy preference designed to allow business entities to externalize their costs. 

Politics is the realm of interest groups, not economists, so it is a given that any attempt to limit externalities through government regulation will at best approximate the identification of the precise costs imposed by externalities and the exact identity of those third parties who would otherwise bear those costs.  To recognize that a system of regulation is imperfect in economic terms is not the same as saying that deregulation would be preferable.  Rather, what is important is to never lose sight of the fact that all government regulation of the marketplace is essentially a political act.  The voters ultimately get to define what constitutes an externality, not economists.

Justice Jackson made this point in Wickard v. Filburn, the seminal case relating to the power of Congress to pass New Deal legislation (and espousing a limited role for the Supreme Court in second guessing Congress’ regulatory choices):   

“It is of the essence of regulation that it lays a restraining hand on the self-interest of the regulated, and that advantages from the regulation commonly fall to others. The conflicts of economic interest between the regulated and those who advantage by it are wisely left under our system to resolution by the Congress under its more flexible and responsible legislative process.  Such conflicts rarely lend themselves to judicial determination.”

Rand Paul is fond of criticizing the Wickard v. Filburn decision in his stump speeches at tea-party gatherings around the country.

None of us should be surprised if business interests selfishly try to push externalities off on others.  Nor should we be surprised if the general public pushes back, and adopts federal regulation as a means to force business interests to bear their own costs.  We see this policy debate unfold before us every day.  Consider three recent examples:

The financial reform bill soon to be signed by President Obama seeks to address externalities in the financial services industry.  During the financial meltdown in 2008, the federal government was forced to use taxpayer dollars in order to prop up investment banks and insurance companies because those financial firms had made disastrous market bets that put their future survival at risk.  Had the federal government failed to act, the result would have been a collapse of the credit markets, the inability of homebuyers to get mortgages, and the lack of buyers for the commercial paper that large employers rely on to fund current operations.  The freedom of financial institutions to make overleveraged market bets clearly imposed external costs on the credit markets and, by extension, on everyone who relies upon credit.       

The congressional overhaul of financial regulation does not go so far as to reinstitute the Glass-Steagall Act, as some had advocated.  That would have forced investment banks to segregate funds held by commercial banks, so that bankers could not use the public’s savings accounts as a source of funds to play the market.  Whether or not the repeal of Glass-Steagall in 1999 was a mistake, the consolidation of integrated financial services companies that has occurred over the last decade makes unscrambling this particular egg an impractical task.

Instead, the final version of the overhaul bill will increase minimum capital requirements, so that investment banks must keep a larger cash “cushion,” and will also likely include the “Volker Rule” banning proprietary trading (the practice where investment banks use their own money to make market bets), thereby limiting financial firms to trades made on behalf of clients.  Derivatives trading is now viewed as so risky an enterprise that the Senate version of the bill bans banking companies from derivatives trading altogether while the House stops at requiring such trades to be insured and to take place on public exchanges.  If anything, critics charge that the overhaul bill does not go far enough to reduce the risk of a future financial meltdown.        

Health care reform, as enacted this past March in the Patient Protection and Affordable Care Act, is another example of federal regulation intended (at least in part) to address externalities.  The requirement that all individuals purchase private health insurance is often cited by critics as an example of the federal government overreaching its constitutional bounds.  However, supporters of an individual mandate argue that it is helpful in reducing the public cost incurred when the uninsured use expensive emergency room services rather than the cheaper alternatives available to the insured population.  Opponents of the individual mandate dispute the relative significance of these externalities in the context of the size of the entire health care market.  However, if the general public believes that these externalities are contributing to the rising cost of health care for the insured, then it is difficult to argue that their representatives are powerless to address them.        

Even the ongoing debate over illegal immigration in Arizona can be viewed as a local reaction to the federal government’s failure to deal with the externalities imposed by the employment of undocumented workers.  The current system of immigration legislation tolerates the existence of an undocumented workforce that some estimate at over 11 million people.  Employers (and consumers) across the nation take advantage of the cheap labor that these workers provide.  However, taxpayers in the states along the U.S.-Mexico border bear the economic brunt of this toleration, in the form of higher costs for education, emergency health care, and public safety.  Arizona’s choice to make an individual’s illegal presence in the state a crime is born out of a frustration that the current federal immigration laws do not spread the social costs of illegal immigration on an equal basis to employers and taxpayers across the nation.    

As Justice Jackson alluded to in Wickard v. Filburn, lawmaking through the political process is how the public allocates the costs of behavior in order to reduce externalities.  When voters argue over the best way in which to allocate these costs, they are engaging in a policy debate.  Rand Paul and his fellow “Constitutionalists” seek to turn this policy debate into a more basic constitutional question.  What is left unaddressed is the moral dimension of this debate: do we as a society have a moral obligation to use the political process in order to reduce externalities that powerful interest groups would otherwise impose on the less well organized (and less well funded) segments of our society?  A liberal might answer “yes” to this question; I suspect that an extreme libertarian along the lines of Rand Paul would answer “no.”

There are many likely causes of race- and ethnicity-based health disparities. Among them: patient-level variables such as cultural preferences, mistrust of health care providers, and degrees of knowledge; system-level factors such as the geographic availability of health care providers, the use of managed care in publicly sponsored health care programs, and a general lack of institutional funding for language interpretation and translation services; and provider-level variables such as prejudice, stereotyping, and clinical uncertainty when treating minority patients.

Yet for all the evidence showing the existence of racial and ethnic health disparities, government agencies, health care providers, and health plans and insurers do not routinely collect data pertaining to patients’ race, ethnicity, and primary language. The refusal to collect this data oftentimes rests on the assumption that it would be unlawful to do so—even though no federal and few state laws prohibit it. In fact, Title VI of the federal Civil Rights Act of 1964, which broadly prohibits discrimination on the basis of race, ethnicity, or national origin by federally funded entities and programs, anticipates (though does not mandate) such data collection. According to many experts, the lack of patient race, ethnicity, and primary language data is one of the largest barriers to improving health care quality for minority patients.

Section 10334 of the new federal health reform law (the Patient Protection and Affordable Care Act) should improve matters. The law requires the U.S. Department of Health and Human Services (HHS) to ensure that any “ongoing or federally conducted or supported health care or public health program, activity, or survey” collects and reports 1) data on the race, ethnicity, and primary language of applicants, recipients, or participants; 2) data at the smallest geographic level if such data can be aggregated; 3) sufficient data to generate statistically reliable estimates according to targeted categories; and 4) any other demographic data as deemed appropriate by the Secretary regarding health disparities. Beyond data collection, the law reorganizes federal oversight within HHS of activities aimed at reducing disparities in health and health care, establishes Offices of Minority Health within six key HHS agencies, and directs the HHS Secretary to award grants to public and nonprofit private entities in communities of color to improve the health status of racial and ethnic minorities.

Clearly it will take time to measure the effects of these legal changes, and there are several questions raised by the law itself related to, among other things, its relationship to Title VI, how it will be enforced, and how the data collected will guide federal program management and policy development. But the new health reform provisions represent a long-awaited response from the federal government to one of the most enduring, and troubling, concerns in health care.

As noted in my blog post last week (“The Beginning of Health Reform“), pushback against the federal Patient Protection and Affordable Care Act was swift.  Members of nearly 40 state legislatures have proposed legislation or constitutional amendments limiting or opposing certain provisions of the Act, with most of the proposals targeting the Act’s requirement that individuals have health insurance coverage or subject themselves to financial penalties (the “individual mandate”).  Virginia, Idaho, and Utah are the only states thus far to have enacted new statutes (each of which more or less prohibits compliance with any law that imposes a fine on an individual for declining to enter into a contract for health insurance coverage), and their validity is sure to be challenged in court on Supremacy Clause and other grounds.  Idaho has also passed a non-binding resolution “urging Congress to take action forthwith to amend the United States Constitution by adding a Twenty-eighth Amendment to provide that Congress shall make no law requiring citizens of the United States to enroll in, participate in or secure health care insurance or to penalize any citizen who declines to purchase or participate in any health care insurance program.”

Most dramatic, though—if drama is measured by the amount of media coverage generated—is the lawsuit initiated by the Attorney General of Florida and joined by 19 other state Attorneys General maintaining that several components of the health reform law violate Article I of and the Tenth Amendment to the U.S. Constitution.  The argument that is drawing the most attention concerns the constitutionality of the Act’s individual mandate.  Like the contention at the heart of the state proposals, the Florida lawsuit argues that the Act’s requirement that individuals have health insurance coverage or pay a tax penalty amounts to an unconstitutional mandate that cannot be upheld under the Constitution’s Commerce or Spending Clauses.

The lawsuit seems unlikely to ultimately succeed, given the procedural and substantive hurdles it has to clear.  Before the merits of the states’ arguments can be addressed, the courts have a series of procedural questions with which to grapple: Is Massachusetts v. Mellon, which holds that states do not have standing to challenge the constitutionality of federal laws, controlling?  If not, is the lawsuit ripe, given that the individual mandate is not effective until 2014?  If ripe, does the federal Tax Anti-Injunction Act, which as a general matter prohibits courts from entertaining lawsuits seeking to enjoin the government from assessing a tax, bar the relief the states seek?

The states would appear to have an uphill battle substantively, as well.  Their lawsuit directly challenges two of Congress’s broadest powers—to tax for the general welfare, and to regulate interstate commerce.  The Supreme Court and lower federal courts have long accorded great deference to congressional decisions that a particular tax provides for the general welfare.  Similarly, the Commerce Clause has been the approved constitutional basis for many of the federal statutes passed over the last half-century.  At the same time, whether the clause can serve as the basis for a mandate to purchase a particular good is a novel issue.  For its part, the federal government earlier this week filed its first brief defending the legality of the individual mandate, essentially arguing that Congress can force people to buy health insurance because the decision to be uninsured has a broad economic effect.

With many states likely to eventually pass statutes or constitutional amendments contravening the individual mandate, and with the Florida lawsuit already in play, it will be interesting to watch as several geographically-diverse lawsuits percolate up through the federal courts, with judges across the ideological spectrum weighing in.  In the meantime, implementation of the Act is moving swiftly, with multiple federal agencies quickly designing proposed implementing regulations.

There are many specific goals of the statute, including expanding health insurance coverage, increasing access to health care services, improving health care quality, enhancing the value of care received, eliminating racial and ethnic health disparities, strengthening the public health infrastructure, expanding and diversifying the health care workforce, and encouraging consumer and patient wellness at home and at work. More fundamentally, however, the goal of health reform is to restructure the current health care system into one that operates more fairly, more efficiently, and with more accountability on the part of the many different stakeholders involved.

Although passage of the law was 14 months in the making, the statute itself is merely the first step. Next comes the truly challenging part: translating the enormous (and enormously complex) law into a transformed health system.  This process will take many years, many regulations (some estimates peg the number of pages of regulations needed at 15,000), and many bouts of judicial interpretation. In fact, the law is already on Justice Stephen Breyer’s radar. While testifying recently before a subcommittee panel of the House Appropriations Committee in support of the Supreme Court’s annual budget request, he was asked why the number of cases on the Court’s docket continued to slide. Somewhat deflecting the question, Justice Breyer told the subcommittee that the Court’s docket tends to spike in the years following passage of a major piece of federal legislation, and he cited specifically to the 2,409-page health reform law as one which will undoubtedly increase the Court’s case load.

Yet, because of the technical, political, and economic challenges sure to arise throughout the law’s implementation, court decisions and administrative regulations alone won’t do the trick. Nor will structural change of the system itself, as contemplated by the statute, be enough. In order for health reform to be successful, the philosophies and behaviors of all involved must change. Individuals, employers, government health officials, insurers, and health care professionals, institutions, and suppliers alike will be expected (and in many cases, required) to fundamentally alter their behaviors, expectations, and business practices. Indeed, particularly as the inevitable pushback against some of the law’s more controversial elements begins, the country must adopt a holistic vision of the purpose of health reform if the fundamental improvements to health and health care initiated by the reform law are to be woven into the fabric of American society.

Among other things, the recent ”death panel” controversy highlights our collective unease with the thought of elderly people being denied needed medical care based on someone else’s decision that their lives are not worth saving.  Yet, even without death panels, much research demonstrates that the elderly already suffer a great deal of discrimination in the health-care system, from the use of demeaning or patronizing language by medical personnel to disqualification from experimental treatments to dismissive responses regarding health complaints.  However, legal remedies for age discimination in health care have proven elusive.

Phoebe Weaver Williams explores ageism in health care, as well as potential remedies under the Age Act of 1975, in a pathbreaking new article recently published in the Marquette Elder’s Advisor.  She argues that legal theories developed in connection with employment discrimination litigation, such as the hostile environment theory, might be adapted for use in the health-care context.

Entitled “Age Discrimination in the Delivery of Health Care Services to Our Elders,” Phoebe’s article was published at 11 Marq. Elder’s Advisor 1.  The abstract appears after the jump. 

The problem of health care providers making age biased decisions when treating elderly patients has received considerable attention and condemnation from both medical and social science researchers. When health care providers offer inappropriate or less care to patients because of their advanced chronological age, they potentially violate the Age Act of 1975. However, a review of the cases litigated under the Age Act suggests that advocates, regulators, and elders have not used the Age Act to address even the most blatant ageist practices in health care. Using methods developed to identify unlawful discrimination under employment and civil rights laws, this article characterizes certain ageist practices in the delivery of healthcare as potential violations of the Age Act of 1975. It concludes that regulators should undertake certain reforms so that elderly patients and their advocates can make better use of the Age Act’s protections.

The emergence of the Tea Party Movement as a political phenomenon has generated a great deal of media attention and punditry over the last year.  Most observers have concluded that those who self-identify as “tea partiers” comprise a loose amalgamation of libertarians, states’ rights advocates and opponents of government intervention in the free markets.  While most activists have a Republican voting record, the Movement appears to have arisen independent of the Republican Party.  Critics of the Bush Administration’s domestic spying activities stand shoulder to shoulder with skeptics of the Obama Administration’s health care reform efforts.  To the extent that Tea Party activists share one common political philosophy, that philosophy might best be described as “rage against the federal government.”

Liberals seem inclined to deny the existence of any intellectual content behind the Tea Party Movement, preferring to focus on the undeniable presence of some racists, militia members, and conspiracy theorists among the activists.  While it is safe to assume that, for some, anger at the federal government seems inextricably connected to the fact that an African-American is President, Juan Williams is correct when he identifies the core concerns of the Movement as non-racial.  Similarly, the “birthers” and other fringe elements in the Movement are merely piggy backing on a generalized anger against the federal government that does not derive from their parochial concerns.  Our nation’s public discourse would benefit greatly if conservative intellectuals did more to repudiate these fringe elements, much the way that William F. Buckley famously repudiated the John Birch Society in 1965, but the “anger industry” that profits off of cable television, books and political fundraising appeals is apparently loathe to alienate any of its prime consumers.

There is, in fact, a long tradition of antipathy towards the federal government reflected in our nation’s history.  Historian Garry Wills produced a taxonomy of anti-government ideologies (on both the right and the left) in his book A Necessary Evil.  I recommended this book in an earlier post.  Wills discusses past political movements led by nullifiers (who believe that local law is more authentic and worthy of respect than federal law), secessionists (who believe that states as political units can withdraw from the union if local residents dissent from federal policies), insurrectionists (who believe that violence directed against the federal government is justifiable), vigilantes (who take it upon themselves to enforce social values that the federal government fails to pursue diligently), withdrawers (who seek to separate themselves from a corrupt society), and disobeyers (who use civil disobedience to challenge particular government policies).  Anyone who seeks to identify the core constitutional values of the Tea Party Movement should begin by immersing themselves in this history.

I believe that there is an intellectual content to the Tea Party Movement, and that many Tea Party activists are attempting to further meaningful constitutional values.  What I find significant is the manner in which the debate over health care reform has illuminated a shift away from the tradition of using states’ rights as a counterweight to federal authority and towards a renewed focus on the structural limits that the Constitution places on the power of the federal government.  In some cases, this law will require individuals to purchase private health insurance, and arguments over the constitutionality of the law usually begin with the premise that Congress lacks the power to impose such a mandate under the Commerce Clause.  This editorial by the Wall Street Journal is typical.

However, the editorial’s position is merely an invitation to re-argue questions of federalism and economic regulation that have been decided in favor of the federal government since the time of the New Deal.  It is certainly possible that the conservative majority on the Supreme Court will revisit the scope of Congress’ Commerce Clause authority (the Citizens United v. FEC opinion illustrates how loosely the bonds of precedent seem to constrain this Court), but it seems unlikely that the current members of the Court will choose to go down a path that it declined to take in Gonzales v. Raich.  For this reason, the academic response to health care reform legislation has been strongly on the side of its constitutionality.

Much of the rhetoric of the Tea party Movement has not been about states’ rights and federalism, however.  Instead, there has been an emphasis on “delegated powers” and “limited federal authority.”  This reaction to the health care reform legislation seems to reach back in time in order to resurrect the original understanding of our Constitution as a charter whereby a sovereign people grant discrete powers to the federal government.  This is not a view that has been associated with either political party, Republicans or Democrats, in recent years.       

There is no need to address the manner in which the Democrats, in furtherance of economic security and civil rights, came to embrace an expansive view of federal government authority.  Less appreciated is the manner in which Republican Presidents also governed in a manner that accepted the broad scope of federal power.  President Nixon greatly expanded federal payments to the working poor and imposed wage and price controls to combat inflation.  Reagan biographer Lou Cannon concludes that President Reagan, despite his anti-government rhetoric, had no desire to sacrifice his popularity by rolling back New Deal social programs, no doubt that an increase in military spending was necessary, no intention of foregoing promised tax cuts, and no understanding of why eight consecutive unbalanced budgets reflecting this combination of priorities would cause the size of the federal deficit to explode.  Both Nixon and Reagan also promoted the growth of the federal government as a means of combating the external threat of communism.

In many ways, President George W. Bush adopted policies that further pushed federal power beyond clearly delegated bounds.  Not content merely to leave the New Deal social safety net in place, he added significantly to it with prescription drug coverage for seniors and the No Child Left Behind Act.  At the same time, his national security policies adopted the neo-conservative view that a muscular exercise of military power to combat terrorism is unconstrained by any constitutional limits.

The Tea Party Movement reflects a fissure in the coalition of interest groups that have traditionally supported Republican political candidates.  In particular, it appears that the advocacy of states’ rights is no longer a sufficient proxy for expressing an anti-government philosophy.  Instead, Tea Party activists demand that the federal government stay within strict boundaries of delegated powers.  Left out are elements of the Republican “base” such as national security “hawks” who express a more accommodating attitude toward federal power.  Those who argue that President Obama is not doing enough to keep Americans safe must try to find common ground with those who assert that the executive branch is limited by its delegated powers.  Also not invited to the Tea Party are large corporate interests who might rationally prefer to deal with one federal regulator as opposed to fifty state legislatures.  A business that prefers a uniform and prompt legislative response to its concerns must find common ground with those who deny that Congress has any authority to legislate.

I remain fascinated by the arguments about basic federalism principles that one sees reflected every day in the media and in the halls of Congress.  My article is an attempt to provide a historical context against which to judge the contemporary debate about the scope of federal government authority.  The article begins with an examination of the manner in which the contractual nature of the Constitution   illuminates the original understanding of the text.  By closely examining the historical evidence, I argue that our interpretation of the Constitution has been influenced by dueling conceptions of contractual origin.  One view treats the Constitution as a charter that delegates limited and defined authority to the federal government.  The second view treats the Constitution as a compact the terms of which reflect a bargain between the federal government and a discrete body public.  After discussing the important differences between these two views of the Constitution, the article discusses the manner in which the compact view came to eclipse the delegation view over the course of our nation’s history.

However, the article concludes by suggesting a connection between the Tea Party Movement and the core constitutional values promoted under the delegation view.  These values are the public policing of constraints on federal power, the primacy of popular sovereignty, and the elevation of human rights over government authority.  Whatever the political consequences of the emergence of the Tea Party Movement , the re-ascendancy of the delegation view as a part of the public debate over the meaning of the Constitution may aid in our understanding of the original constitutional design.

To read “Charters, Compacts, and Tea Parties: The Decline and Resurrection of a Delegation View of the Constitution,” follow this link and click “download.”

Of course, while what “everybody” knows is never the whole of the matter, the inspiring story of diagnosis, followed by treatment, followed by survival is a wonderful sequence of events.

An upcoming symposium is about the flip-side of that coin (although it has been very hard to get people to talk about it). About eighteen months ago, we chose to bring together scholars who don’t necessarily presume that the mainstream health care perspective of diagnosis and follow-up treatment is more than a single widely endorsed perspective. The upcoming symposium, part of the annual series on health/disability/elder law held by Marquette’s Elder’s Advisor law review, proposes that prevention is often enough overrated that close examination is warranted. The symposium is titled “The Institutionalization of Prevention: We Win, We Lose.”

Cancer diagnosis and treatment is particularly, but hardly exclusively, illustrative.

Shortly after planning for the meeting, federal agencies stated or reiterated some reservations about screenings. Most notably, the Preventive Services Taskforce has recommended abbreviated screenings – starting later, less often – for breast, cervical, and prostate cancer. This month, the professional American Cancer Society restated its recommendation against routine blood screening for prostate cancer and urged doctors to talk frankly with patients about the limits of testing and the possible results of treatment – impotence and incontinence.

This is a condensation of widely available information, but the commentary on it is revealing. In the context of high health care costs, physician reimbursement changes, and flagging trust between physicians and patients, the recommendations are interpreted by some as a willingness to let disease develop, leading to selective patient suffering and death. In a health care system in which necessary treatment is unavailable to too many, these concerns can only be expected. On the other hand, overaggressive treatment has caused great suffering and, in the case of some screenings and subsequent treatments, has not reduced the rate of mortality – the time of death for the treated versus the untreated patient. These are generally stories told in quieter voices. (See, for example, Nortin M. Hadler, Worried Sick: A Prescription for Health in an Overtreated America, University of North Carolina Press, 2008.)

A great part of the issue is risk aversion, or fear, among patients who might previously have been, or considered themselves, to be healthy in all major respects. Because of fear of pain or death that would deprive their families or frustrate other goals, individuals have chosen invasive, preventive surgery when the harm of disease is quite speculative. Indeed, with genetic testing, people have chosen aggressive surgery when their chance of ever getting the disease to be prevented is projected to be less than fifty percent.

Many people experience fear and submit to waves of increasingly invasive testing and surgery after screening and diagnosis. Even at the threshold of diagnosis, perhaps in the ER for pain, a patient too-often is told, “This could be invasive cancer.” Indeed, it could be, but, as the paradigm of informed consent dictates, remote risks need not be discussed, and the likelihood is generally low.

Reevaluation of the ways medical treatment decisions are made is fundamental to improving the quality of care (see, for example, Woloshin, Schwartz and Welch, Know Your Chances: Understanding Health Statistics, Univ. of California Press, 2008).

The error of over diagnosis or treatment is well known in such common parlance as “the breast cancer scare.”  It has become more likely to occur with tests that identify particular markers that might, but don’t necessarily, indicate dangerous disease. It may tie into a particularly American identification with health and youthfulness as moral issues; one must be restored to goodness whenever and as soon as possible. In addition, the aspirational values of physicians might be at issue, causing them to seek intervention when it is possible.

The merits of particular preventive measures require a close look at the health care industry, at the real extent of the patient’s opportunity and responsibility to assess and decide, and at the extent to which health care research focuses on the real need for and benefits of such measures. The questions are complicated, which is not a reason to shy away, but every reason to take up this matter.

On February 18, 2010, the Wisconsin Court of Appeals asked the Wisconsin Supreme Court to take up the constitutionality of Milwaukee’s paid sick leave mandate.

In June 2009, Milwaukee County Circuit Court Judge Thomas Cooper ruled that the city’s paid sick leave ordinance, which provided up to nine paid sick days per year based on the number of hours worked and the size of the business, was “invalidly enacted and unconstitutional.” (Metropolitan Milwaukee Assoc. of Comm. v. City of Milwaukee, Milwaukee County Circuit Court, No. 08cv018220, June 12, 2009). 9to5, the National Association of Working Women, appealed Cooper’s ruling. The supreme court has been asked to decide whether the ballot question put before the voters of the City of Milwaukee complied with the statutory requirement that it contain “a concise statement of [the ordinance’s] nature” — whether voters were informed of the contents of the ordinance . . . .

Nearly 70 percent of . . . voters approved the referendum for paid sick leave in the November 2008 election.

Marcia McCormick (St. Louis) has written before on the ordinance. I personally think the law was properly enacted and constitutional.  It will be interesting to see whether the Wisconsin Supreme Court takes the case.

Yet many analysts argue that these spikes are temporary.  The growth in construction spending amounted to a measly 0.04%, and the rise in pending sales contracts over the last nine months is attributable to the homebuyer tax credit, which the Obama Administration and Congress recently extended.

I suppose time will tell which analysis is correct.  But while commentators continue to debate, real estate investors have shifted their focus from traditional residential and commercial endeavors to a sector less affected by the downturn: healthcare properties.

Multi-tenant senior living, assisted living, and hospice facilities have not experienced the vacancy rates that multi-tenant residential, industrial, and commercial facilities have.  In fact, with the Baby Boomer generation reaching retirement, the market for such accommodations continues to grow.  And while banks have foreclosed upon some facilities, federal regulations require the continued operation of such facilities (for obvious reasons), making the purchase of such properties at foreclosure a better gamble than, for example, a vacant apartment complex.  Of course, the specter of national healthcare reform only adds to this investment’s mystique.

A primary beneficiary of this growing market?  Real estate funds that sell interests in Real Estate Investment Trusts (REITs).  While the economic downturn has wiped out the profitability of many existing REITs, funds have turned to healthcare properties to develop appealing prospectuses.  Yet were it not for a decade-old federal enactment and a recent statutory modification, these funds (and their attorneys) would be hard pressed to find deals worth making.

First, some background.  The REIT acts like a mutual fund by providing individuals or institutional entities with a passive investment opportunity.  A corporation with REIT status can avoid corporate tax liability and thus funnel most of its income to investors.  A typical REIT acquires diverse pieces of property with investor money.  The REIT—typically via a subsidiary—cares for these properties, with the goal of turning a net profit through rental streams and appreciated land values.  If and when any income develops, the REIT distributes at least 90% of it among the trust’s investors.  REITs have become a common component of large investment portfolios.

However, REITs had a significant shortcoming for many years.  Until 1999, a REIT could not acquire a facility that provided services to tenants.  Under IRS rules, properties with a rental income stream arising from services provided—like hotels—were considered active investments, thus subjecting the acquiring entity to corporate tax liability on those rents.  That tax liability destroyed the profitability of investment in a REIT.

That limitation was partially removed by the REIT Modernization Act of 1999.  Passed by Congress and signed by President Clinton, the Act allowed for the expanded use of taxable REIT subsidiaries, or TRSs.  As explained by the National Association of REITs, the statute allows a corporation seeking REIT status to create a subsidiary to manage service-providing property.  That subsidiary is taxable like a standard corporation.  In turn, the REIT may hold up to 100% of the TRS’s stock without disqualifying rents received by the REIT from special tax treatment, so long as the TRS does not compose more than 20% of the REIT’s total assets (this limit was raised to 25% in 2008).

While the Act laid the groundwork for heavy investment in service facilities, the Act stopped short of authorizing such investment in healthcare facilities.  In fact, it expressly prohibited the use of this TRS model to manage healthcare properties.  However, as part of the Housing and Economic Recovery Act of 2008, Congress expanded the definition of “TRS” to include subsidiaries that manage healthcare properties.

Those real estate funds and their attorneys riding the wave of healthcare property investment would confirm that these legislative enactments have paid dividends (literally and figuratively) in an otherwise moribund real estate investment sector.

For example, while in Peru I received a grant from the Ford Foundation to conduct research on the right to mental health for survivors of the country’s internal armed conflict.  In the course of the study, I interviewed many government officials, advocates from non-governmental organizations and ordinary citizens.  None of these people questioned the basic premise of my study which was that health is a human right, as enshrined in international treaties such as the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR). 

Article 12 of the ICESCR provides that “The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.” The Covenant has been ratified by 160 countries in the world, but not the United States.  The 1946 Constitution of the World Health Organization (WHO) recognizes that the right to health is a fundamental right “without distinction of race, religion, political belief, economic or social condition.”  Significantly, the United Nations General Assembly (composed of representatives from 192 member countries adopted a resolution in 2003 reaffirming the right to health.

Professor Eleanor D. Kinney, Co-director of the Hall Center for Law and Health at Indiana University School of Law conducted a study in 2004 found 67.5% of countries to include the right to health  in their national constitution.  The United States is the only industrialized nation in the world not to guarantee access to health care, through universal health care, as a right of citizenship.   

Given this global recognition of the right to health, I often wonder why Americans seem so afraid of moving in this direction and catching up with our peers.  Why is health reform so controversial? 

Is it the cost?  Maybe, except we permit millions of tax dollars to be spent daily on bank bail-outs, wars in foreign countries, emergency aid for developing nations, and even stimulus money to build our national infrastructure like highways and bridges.   One estimate puts the health reform cost at $1.05 trillion over 10 years, which is almost as much as we will spend on the wars in Iraq and Afghanistan by 2010 ($1.3 trillion).  However, since health costs currently outpace the growth of the economy, this initial up-front investment would lead to long term savings.

Is it a misunderstanding of what universal means?  People often believe that the right to health means everyone will be able to demand perfect health — the “right to be healthy.”  But the ICESCR recognizes that the right to health is subject to “progressive implementation” and strives towards a minimum acceptable baseline that is attainable.

Is it a mistrust of government?  Some speculate that health care access and quality will decline if there is universal health care.  But more and more reports on comparative systems in places like Canada, France, the United Kingdom and Germany are debunking this claim.  National Public Radio covered the story of one American middle aged couple had to move to Mexico because his childhood polio problems prevented him from working, and she was denied coverage because she survived cancer twenty years ago—they literally could not afford to stay here (even though he was a retired military officer).  Once in Mexico, they were enrolled in the government health plan (which is tax dollar funded although the couple paid a few hundred dollars annually).  They reported that the care was “excellent.”

Is there an unwavering belief in the free market?  Perhaps, but it seems that leaving universal health care to the market is not working.  According to the U.S. Census Bureau, nearly 47 million Americans, or 20 percent of the population under the age of 65, were without health insurance in 2008.

Some opponents to a government response to this market failure accuse the administration of being socialist.  This reaction really confuses me given that we seem to accept that certain public goods are so essential to our national well-being that the government involvement makes sense: public schools, national highways, police and fire fighters, libraries, to name just a few.  Are we then already a socialist country?

But to get clarity on this last issue, I asked my Chilean colleague Professor Pablo Contreras, while he was here during the student exchange with Hurtado University  how it is that his country has been able to sustain political support for a universal health care system.

I began, “Chileans don’t worry that it is socialist?” 

Certainly, Latin America was the Cold War’s physical battlefield.  General Pinochet, himself, ruled Chile with an iron fist for seventeen years as part of his crusade against communist leftist groups.  People still suffer the loss of their loved ones who were disappeared, tortured and killed as a result of this internal war.  So I figured that if anybody might be spooked by expansive government programs despite their thriving capitalism, wouldn’t it be the Chileans?

I was wrong.

As he explained, “Despite the fact of the political differences, there is a consensus in order to secure some minimum living standards. There is, of course, disagreement in the way that the State applies this particular public policy but that hasn’t been an obstacle to develop an intelligent system to secure minimal health standards. In some way, it’s a correction of capitalism.”

The Chilean approach begins with the principle that health is a human right.  But it is also practical. To compete in a global market, they understand that universal education is not enough. Certainly, a well educated—but sick—person is not productive.

Could our resistance to universal health care be simply a matter of ideology?  America–the land of opportunity— assumes a self-reliant folk will pull themselves up by the bootstraps Horatio Alger style.   We don’t tolerate “free loaders” and “system abusers” (not my words, but rather terms I heard used recently by opponents of the proposed health care reform). 

But hold on.  Aren’t the millions of people without insurance just like you and me? Maybe you have once been without insurance, or know someone in that situation?  They are usually ordinary citizens who followed all the rules, tried to be contributing and upstanding members of society—but alas, their bootstraps snapped.   You can hear their stories on National Public Radio: self employed, just out of college, excluded because of a previous medical condition, recently unemployed, retired but too young for medicare….the list goes on.  They were denied insurance or could not afford insurance which de facto translates into their having no access to health care.      

Insurance, of course, is a business that makes decisions based on the bottom line and not from the perspective that health is a human right (“human”, i.e., living organism that needs health to survive or will die).  Yet, somehow our national debate is not about access to quality health-care facilities, goods, services and programmes (the United Nations standard) but rather mandated access to health insurance, with a possible government option that will compete with the private sector.   It seems the market has trumped our rights in directing our national debate.

So now I am wondering:  what will be the consequence for those families who defiantly choose to put their precious resources towards essentials like food and housing instead of paying their monthly insurance premiums?   Isn’t there a reason why they can’t afford insurance now?

The ideological starting point of our national health reform debate could lead to some rather strange outcomes.  As the world looks on puzzled, they may be wondering if Horatio will ever repair his bootstraps.

Writing at Mirror of Justice, Rob Vischer responds, arguing that health care is different, perhaps falling into that category – identified by John Paul II in Centesimus Annus - of the “needs and common goods that cannot be satisfied by the market system.”

I am in partical agreement. There is nothing about health care that, in and of itself, frustrates the operation of markets. It is not a natural monopoly and there are no intrinsic externalities or “tragedies” of the commons.

The problem, it seems to me, is that health care is like food. There are many goods that people can do without, but some are necessary for survival. We are reluctant to allow people to starve and we don’t want to simply allow those who get sick to die.

This does, I think, require public and private intervention in the market. My suggestion is that considerations of subsidiarity suggest that increases in subsidies may be preferable to increases in centralized control of the provision of services.

Although there are many interesting provisions in the Baucus Bill, including a requirement that individuals have health insurance coverage, the establishment of a health care exchange, proposed reforms for the private insurance system including not allowing exclusions for preexisting coverage, and expansion of the Medicaid program for the poor, I want to focus on three parts that trouble me that directly deal with current employee benefits law. 

First, the plan does not adopt a public option for health care.  Instead, it establishes state-based cooperatives to compete with private health plans.  I think this a huge mistake and such coops will be a failure from the start.  For the best explanation as to why, here is former Labor Secretary Robert Reich explaining why the public option is so superior to co-ops.

Perhaps even more disappointing from my perspective is that the Baucus Bill does not require employers to provide coverage to workers, like some of the House counterpart bills.  Instead, employers with more than 50 workers who do not offer coverage will have to reimburse the government for each full-time employee receiving a health care affordability tax credit in the exchange starting in 2013.

Two thoughts on this one. One, there is no reason to limit this to employers with 50 employers with more. That is the cutoff currently for the Family and Medical Leave Act, and it has left a huge number of workers without leave protection.  Similarly, this arbitrary cut-off will continue to leave millions of workers at smaller employers without health coverage. As long as we are going to stick with our unique employer-provided coverage, we should make sure all employees can get coverage through their employers.  The only other options is for these people to qualify through some other government program like Medicare, Medicaid, or Social Security.  Yet, those programs do not provide the necessary and timely health treatment that many employees need.

Second, why does this not start until 2013?  Assuming the bill passes in 2010, why should a vast number of workers suffer at these larger companies without healthcare?  Or put at little more forcefully, how many employees will die in those three years from that delay in providing coverage.

Needless to say, I sure hope that these two provisions are not in the health care reform bill that President Obama eventually signs into law.

The text of the bill, America’s Healthy Future Act of 2009, is available here.

Here’s a taste:

TWO burning questions are at the center of America’s health care debate. First, should employers be required to pay for their employees’ health insurance? And second, should there be a “public option” that competes with private insurance?

Answers might be found in San Francisco, where ambitious health care legislation went into effect early last year. San Francisco and Massachusetts now offer the only near-universal health care programs in the United States . . . .

[W]e have seen how concern over employer costs can be a sticking point in the health care debate, even in the absence of persuasive evidence that increased costs would seriously harm businesses. San Francisco’s example should put some of those fears to rest. Many businesses there had to raise their health spending substantially to meet the new requirements, but so far the plan has not hurt jobs . . . .

So how have employers adjusted to the higher costs, if not by cutting jobs? More than 25 percent of restaurants, for example, have instituted a “surcharge” — about 4 percent of the bill for most establishments — to pay for the additional costs. Local service businesses can add this surcharge (or raise prices) without risking their competitive position, since their competitors will be required to take similar measures. Furthermore, some of the costs may be passed on to employees in the form of smaller pay raises, which could help ward off the possibility of job losses. Over the longer term, if more widespread coverage allows people to choose jobs based on their skills and not out of fear of losing health insurance from one specific employer, increased productivity will help pay for some of the costs of the mandate.

In case you think this is all a bunch of liberal, Democratic mishigosh, one of the authors of this op-ed happens to be non-other than William Dow, a senior economist who worked for President George W. Bush’s Council of Economic Advisers.

In other words, increasing evidence is out there that health care reform with a public option and an employer pay or play mandate might be just what our system needs to rein in health care costs while at the same time providing health insurance to a much larger segment of American society.

[Cross-posted on Workplace Prof Blog]

  We are very far removed from the time when the residents of a small New England town could gather together on an occasional basis and make communal decisions that governed their daily lives.  Today, members of congress are expected to use these forums to report back to their constituents, to answer questions and solicit concerns, and then to return to Washington, D.C. with a greater sense of the priorities of the voters.  This is not exactly direct democracy in action, along the classic New England model, but it is the closest that most of us can claim to actually participating in the machinery of our own government.

 At many of these town hall meetings, ostensibly intended to address the topic of health care reform, the proceedings have been anything but an exemplar of participatory democracy.  I am not referring to the “exaggerations and extrapolations” of the pending health care reform legislation that some attendees and some Republican opponents of the bill have espoused.  Trying to prove that something is a lie is like chasing your tail.  The task of separating truth from fiction is simply a never ending part of the human condition.  Nor am I particularly concerned over the shouting and the ill manners of many attendees.  I cannot think of any period in our nation’s history when politeness was the norm in political debate.

 Instead, my concern is with the future of democracy itself.  In 1922, in his book Public Opinion, Walter Lippmann presented a pessimistic view of the public’s ability to govern itself through our nation’s democratic process.  Three years later, he followed up his critique in the book The Phantom Public.  If anything, the sequel held out even less hope for the meaningful participation of the general public in the shaping of the government policies that have such a dramatic impact on their lives.

 Ideologically, Walter Lippmann was a difficult person to pigeonhole.  He began his journalistic career as an avowed liberal, and over his long life he supported and advised presidents of both political parties.  After his death, his books were reprinted by the “Library of Conservative Thought.”  He was Jewish, but he embraced the concept of natural law and wrote admiringly of the moral authority of Catholicism.  Ronald Steel, in his magisterial biography Walter Lippmann and the American Century, points out the “deep vein of conservatism running through [Lippmann’s] brand of liberalism.” (Steel, p. 233).

 Here is how Steel summarizes Lippmann’s central critique of the modern political process:

 Political science [had previously] focused on how decisions were made – by political parties, voting, the branches of government.  In Public Opinion, Lippmann went behind such mechanics to scrutinize the centerpiece of democratic theory: the ‘omnicompetent citizen.’  That theory assumed that the average citizen, being rational, could make intelligent judgments on public issues if presented with the facts. . . .

  Now, however, [Lippmann] had to abandon that faith. . . .  People see what they are looking for and what their education and experience have trained them to see. ‘We do not first see, and then define, we define first and then see,’ Lippmann wrote.  Since no man can see everything, each creates for himself a reality that fits his experience, in effect a ‘pseudo environment’ that helps impose order on an otherwise chaotic world.  . . . 

 Steel goes on to explain the connection that Lippmann made between his insights about human nature and the mechanical operation of the political process:

 . . . For most people, the world had become literally ‘out of reach, out of sight, out of mind.’  This posed no serious problem in a small community where the decisions each citizen had to make rarely went beyond what he could directly experience.  This was the world that the eighteenth-century fathers of democratic theory had written about.  But modern man did not live in that world.  He was being asked to make judgments about issues he could not possibly experience firsthand: the tariff, the military budget, questions of war and peace.  What was reasonable in a Greek city-state was impossible in a modern technological society.  The outside world had grown too big for the ‘self-centered man’ to grasp.  This posed a political dilemma, for classic democracy ‘never seriously faced the problem which arises because the pictures inside people’s heads do not automatically correspond with the world outside.’  They did not correspond for a number of reasons—stereotyping, prejudice, propaganda.  The result was to erode the whole foundation of popular government. . . .

 . . .  The Enlightenment conception of democracy—based on the assumption that every man had direct experience and understanding of the world around him—was totally inadequate to a mass society where men had contact with only a tiny part of the world on which they were being asked to make decisions.  What was possible in an eighteenth-century rural community was unworkable in great cities.  

Steel, pp. 180-182.

 Lippmann concluded, therefore, that the general public was incapable of directing the course of events on any rational basis and that it was folly to attempt this.  At best, the public had the ability to identify those persons or groups who were capable of making important decisions by either voting them in or out of power.  It is not so much that the members of the general public lack competence, it is that the general public lacks sufficient information with which to exercise any sort of rational thought process.

 Lippmann’s theories gave rise to the entire industry of public relations, they revolutionized the concept of advertising, and they greatly influenced every interest group who has since sought to influence the public’s desires and beliefs by “putting pictures in our heads.”  All of these forces in our society eschew rational argument in favor of molding opinion through the use of the symbols and the stereotypes that they believe the general public uses to understand reality.

By and large, the Republican Party has embraced Lippmann’s theories of political science more than the Democrats.  When Gary Wills wrote that Ronald Reagan asked the public to “reject historical record for historical fantasy” (Innocents at Home p. 387), or Henry Fairlie charged that Reagan offered voters an “escape from the present to the idyllic past” (Bite the Hand That Feeds You, p. 190), they were both marveling at Reagan’s ability to glide above the facts and connect with voters on a symbolic level.  One can interpret the political rise of Sarah Palin as a similar achievement.

 The Administration of George W. Bush unabashedly employed Lippmann’s theories of politics.  When reporter Ron Suskind quoted a senior advisor to President Bush speaking dismissively of the “reality-based community,” which embraced the illusion that solutions to problems arise from a study of discernible reality, the advisor was channeling Lippmann.  ”That’s not the way the world really works anymore,” the advisor told Suskind. “[W]hen we act, we create our own reality. And while you’re studying that reality — judiciously, as you will — we’ll act again, creating other new realities, which you can study too, and that’s how things will sort out. We’re history’s actors . . . and you, all of you, will be left to just study what we do.”  The main political sin of George W. Bush was not his attempt to manipulate reality, but his failure to successfully hide what he was doing.  

 While Lippmann’s genius has been universally recognized, there has always been a large contingent of liberals and progressives who have rejected his pessimistic conclusions.  For decades, they chose to focus instead on the expansion of the coalition of democratic interest groups– through the addition of women, minorities and the gay and lesbian community– as the key to enacting liberal legislative reforms.  More recently, liberal elements within the Democratic Party have seized upon technology, and the internet, as the key to building broader support for their agenda.  The “Great Health Care Debate” may finally convince these doubters that Lippmann was right all along.

 The town hall meeting experience demonstrates that many liberals continue to cling to the idea of an objective reality.  The Obama Administration approached the issue of health care reform as a process of rational decision-making, where a variety of interest groups would reach an accommodation based upon mutual self-interest.  While President Obama did not initially plan on using town hall meetings in order to promote health care reform, no one in his Administration seemed overly concerned over the prospect of the general public weighing in during the congressional recess.  Lo and behold, when the views of many of the attendees at the town hall meetings were solicited, these views revolved around death panels and the fact that any form of government sponsored health care is inherently evil (unless it is offered by Medicare or the Veterans Administration, both of which are sacrosanct).

Health care reform is too complicated an issue for any lay person to understand.  As a result, the general public falls back on the pictures in our heads to make sense of it all.  This facet of human nature makes us all vulnerable to powerful groups who gain and hold on to their power precisely because they are exceedingly good at creating those pictures.  Lippmann also recognized that when government policy gets too complicated for the average person to understand, it risks letting loose “all the submerged antagonisms within the state.” (Steel, p. 227). 

Corporate America, in contrast to the general public, participates in the legislative process quite successfully via the lobbying process.  It can afford to hire specialists with the knowledge and experience to direct legislative priorities and to influence the votes of legislators.  Without any real competition from a general public seeking to advance its own interests, it is clear that the legislative process has been captured by corporate interests.  Reform measures intended to address this imbalance, either by decreasing corporate influence through limits on campaign contributions or by increasing lawmaker independence through redistricting efforts, are too complicated themselves for the general public to understand.  If the general public cannot think rationally on the question of health care reform, what hope is there that it can rationally address a reform of the political process itself?

The fundamental question is whether we still have the capability to govern ourselves or whether we the people are destined to have our fates determined by elite interest groups.  Lippmann thought that the modern world was too complex for the former alternative.  He placed his hope in the education and morality of the elite, confident that they would act for the common good and not selfishly.  If that is where our nation’s best hope lies, then I am truly depressed.