Last year, a Senate report revealed that in the previous seven years, the federal Medicare program had paid as much as $92.8 million for about a half-million claims submitted in the names of doctors who were six feet under. The charges were for medical supplies, ranging from wheelchairs to prescription drugs. One pair of scam artists in Florida used the Medicare identification numbers of dead docs to bilk $1.3 million from the government—also known as we the taxpayers.

It’s not like this was a hard crime to spot. More than 50,000 of the bogus claims involved doctors who had been deceased for at least ten years. Despite a warning from the Department of Health & Human Services (HHS) in 2001 about exactly this problem, tough safeguards were never put in place.

Here’s another good one: the podiatrist who allegedly billed the government for treating people with no feet. Dr. David Quang Pham was indicted in St. Louis this past June for charging the government for nonexistent procedures that he backed up with phony notes (Pham has pleaded not guilty). As an unforgettable press release from the local U.S. Attorney’s office put it, “Dr. Pham submitted reimbursement claims for treating the feet of patients whose feet had been amputated prior to the dates of service.” And once again, it was the taxpayer who had to, er, foot the bill.

People will want to say these are minor exceptions, but they aren’t.

[T]here’s no disputing one important truth: Shocking amounts of money are stolen by crooked doctors and scammers, and that’s driving up costs for all of us. The National Health Care Anti-Fraud Association estimates that more than $60 billion a year is lost to fraud—or 3 percent of federal health-care spending. Think of how all that money could improve, extend, or outright save lives.

Fraud alone accounts for 3% of health care costs.

Meanwhile, litigation accounts for less than 1.5% of health care costs. Furthermore, while fraud is an absolute rip-off that is passed on to the rest of us, litigation costs - i.e. damage awards in lawsuits - are determined by a panel of jurors, every day people like you or I who have sat and listened to the facts of the case, heard expert testimony from doctors on both sides of the case, and awarded damages based on negligent acts of the defendant(s) and in order to compensate the plaintiff(s) for catastrophic injuries or death.

Insurance companies are given virtual monopolies, as they cannot do business across state lines, which also drives up costs. Lawsuits against doctors have actually decreased since the 1980s. Only a small percentage of people ever file a claim against a doctor for negligent treatment.

Tort reform also violates the 7th Amendment of the US Constitution.

Finally, why single out doctors for special treatment? If I injure you in a car accident, you get what a jury awards you. If you suffer the same injuries because of the faulty construction of your home, your damages against the contractor(s) are what the jury awards you. If anyone injures you for any reason, your damages are set by the market…unless you are a doctor. Then the damages against you are capped. You have a $1 million dollar case, injuries-wise? That’s fine if the defendant is the driver or owner of an automobile. That’s fine if the defendant is a contractor, lawyer, Wal-Mart or McDonald’s. But if you have $1 million dollars worth of injuries and the defendant is a doctor? Sorry, the legislature has determined, without the benefit of knowing anything about your case, that your case is only worth $250,000 as against this defendant (how un-conservative). Makes sense. So it’s not even real tort reform, which would be across the board. Rather, it’s a hand-out to the malpractice insurance companies who cover doctors for their malpractice. That’s right, it is a hand-out to the insurance companies that are already gouging you with the high prices that are currently responsible for our health care crisis.

All the citations to the above claims can be found here, here, here and here, in my previous posts on the subject.

Cross-posted at The Regiment.

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Conservatives love the Constitution, and specifically the Bill of Rights. While liberals may take an expansive view of the Constitution’s terms, or subscribe to the idea of a “living Constitution,” conservatives recognize that a Constitution that does not say what it means, or mean what it says, effectively means nothing. A living Constitution is a dead Constitution, for what is actually protected if all of the protections are subject to “re-interpretation” or some “public policy” balancing test at any given future moment?

Specifically, conservatives have been fighting the good fight with respect to the First Amendment (vs. liberal attempts to remove all vestiges of religious symbolism from public view), the Second Amendment (vs. liberal attempts to restrict gun rights), and the Tenth Amendment (vs. liberal attempts to expand the size of the federal government). In defending the protections that conservatives believe the aforementioned Amendments were created to protect, conservatives usually cite the language of the text itself (it means what it says), as well as historic precedent (this is how the Founding Fathers viewed the language).

But what about the Seventh Amendment? People can recite the First, Second, and Fifth. Many people also know the Fourth, Sixth, Eight, and Tenth. The Seventh Amendment, however, like the Third and Ninth Amendments, is rarely discussed. A very large percentage of the people you meet will not be able to tell you what the Seventh Amendment says. And maybe that is the problem. It has become a footnote.

The Seventh Amendment:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

…the right of a trial by jury shall be preserved… Simple enough.

no fact tried by a jury… The determination of damages in a civil suit is a fact that has always been determined by a jury. Other than in criminal and related areas of the law, where statutory penalties are often codified, the determination of damages has never been a question of law. It has always been a fact question.

shall be otherwise re-examined…than according to the rules of the common law. Under the common law, damages for suits in negligence were determined by the jury.

Thus, by the plain language of the Seventh Amendment to the Constitution, Congress does not have the ability to determine the value of a civil case, not because the Amendment specifically prohibits Congress from doing so, but because the Amendment specifically preserves that right for the jury.

From Justice Souter:

The Seventh Amendment provides that “[i]n Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved….” … Since Justice Story’s day, …we have understood that “[t]he right of trial by jury thus preserved is the right which existed under the English common law when the Amendment was adopted.” … In keeping with our longstanding adherence to this “historical test,” … we ask, first, whether we are dealing with a cause of action that either was tried at law at the time of the founding or is at least analogous to one that was… If the action in question belongs in the law category, we then ask whether the particular trial decision must fall to the jury in order to preserve the substance of the common-law right as it existed in 1791.

Markman v. Westview Instruments, Inc., 517 U.S. 370, 376 116 S.Ct. 1384, 1389 (U.S.Pa.,1996). (citations omitted).

Negligence actions clearly fall under the law category, and under the “historical test” thus must fall to the jury “in order to preserve the substance of the common law right.” Thus, Congress has no right to take the determination of damages in a negligence suit away from the jury.

As an aside, it should be noted that the Seventh Amendment has not been incorporated against the states. Therefore, although Congress has no authority for capping damages in negligence cases, the states could cap the damages in suits at law, even in diversity actions. See Davis v. Omitowoju, 883 F.2d 1155, 1161-1165 (C.A.3 1989).

Tort reform, passed by Congress with the intention of being applicable to state negligence claims that historically have been tried by the common law, is thus in violation of the Seventh Amendment.

And do not forget that malpractice claims are only responsible for about 1.5% of the health care industry’s costs, caps limit your right to recovery as against doctors but do not effect your right to recover the same types of damages, uncapped, against other industries (thus practically being a handout to the malpractice insurer), and will not reduce frivolous lawsuits at all.

Wake up, conservatives.

More Hot Air.

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Despite the asinine inclusion of tort reform, there are some great ideas in the GOP bill.

Absent from the republican proposal are key features of the democrats’ own legislation, such as mandates for employers to insure employees. Such a requirement creates additional burdens on small businesses that already struggle to keep their doors open. The republican draft also does not require Americans to purchase insurance, another feature of the democrats’ bill to which many object, nor does it force insurance companies to insure those with pre-existing health conditions, as the democrats’ bill would do, driving up insurance premiums dramatically.

Yet the draft offered by republicans does more than simply strike out elements of democrats’ faulty legislation. The proposal contains many key elements of genuine health care reform that citizens have encouraged their representatives to offer. The republican plan includes increased incentives for people to use health savings accounts, and caps non-economic jury awards in medical malpractice cases at $250,000. It also offers multiple incentives to states in order to drive down premiums, and allows health insurance to be sold across state lines, a move which would increase competition and help lower insurance premiums.

I’ve mentioned numerous times about the obvious benefit to allowing insurance to be sold across state lines. Incentivising private behavior is also preferable to any government-run solution.

But the tort reform… I’ll address the constitutionality of the matter, the statistics regarding the practicality of it all, as well as some frequently asked questions about litigation and its costs, but first I have to mention the free market assault.

Isn’t $250,000 a completely arbitrary number? How can we possibly know that no case is worth more than $250,000? Mind you, this does not mean every case gets a $250,000 payout. This is not like the workers’ compensation industry where employers are free from litigation costs, but in return they must pay out for any on-the-job injury - fault being irrelevant. You get hurt on the job, you get paid. Pretty sweet for the employee. What does the employer get? Immunity from suit. Win/win. No, this bill simply shields doctors - or, more correctly, the insurance industry. Your $10,000 case is still worth $10,000. Your $50,000 case is still worth $50,000. Your $250,000 case is still worth $250,000. But your $300,000 case is now worth $250,000. Your $500,000 case is now worth $250,000. Etc. So you gain nothing, the doctors and insurance companies basically get immunity.

Think about that number: $250,000. Obama’s photo-op over the Statue of Liberty cost $250,000. The minimum major league salary is $390,000. 12 US States have average home listing prices in excess of $413,000 (38 US states have average listing prices greater than $250,000). Of course, no cite is needed for the absurd costs of military weaponry, or even the cost of a prized racehorse.

But we have now decreed that the value of your child, dead due to the negligence of a doctor or medical facility, is worth $250,000. What is worse - we have not decreed that a dead child is only worth so much, or even that law suits for dead children are frivolous. We have simply decreed that damages for dead children who are dead as a result of a doctor’s negligence are capped. If your child dies in a fire there is no cap; if your child dies in a plane crash there is no cap; if your child dies because of the reckless behavior of some drunk in his car there is no cap; but if your child dies because of the negligence of a doctor, well, suddenly your child just became worth less…for some reason). If reforming the legal system is such a necessity, then why wouldn’t all damages for personal injury be capped at $250,000? What possible relevant distinction can be made to those injuries caused be a doctor and those caused by a driver?

Mind you, I have no problem with the average salary of a baseball player, the average listing price of a home, or even the absurd price one might pay for a purebred racehorse. Those numbers are all market-driven. Thus, the numbers indicate the true cost of those items - their true value. But when we arbitrarily limit the amount a mother can receive for the death of her child due to negligence by members of a specific industry, or the amount a son can receive for the death of his father, we take the market out of the equation. As I’ve said before, no one gets paid a dollar in any medical malpractice action unless a) the hospital/doctor settles in lieu of trial (market-driven risk assessment), or b) a jury of local, average individuals hear the evidence from both sides (which includes expert testimony from doctors who live in the same locale and work in the same area of expertise who testify, based on their medical experience and based on the standard of care also established by local doctors, that the defendant breached the standard of care) and find in favor of the plaintiff. That same jury then decides what the value of the death (or injury) is worth. Each case is decided differently, and each case is unique.

But now we are deciding, at some bureaucratic level, that the market is unnecessary and/or that we already know the maximum possible value of any death caused by a doctor’s negligence. It is ridiculous to think that conservatives actually buy in to this nonsense.

We should also remember that the empirical data suggests that legal costs are a pittance.

According to the actuarial consulting firm Towers Perrin, medical malpractice tort costs were $30.4 billion in 2007, the last year for which data are available. We have a more than a $2 trillion health care system. That puts litigation costs and malpractice insurance at 1 to 1.5 percent of total medical costs. That’s a rounding error. Liability isn’t even the tail on the cost dog. It’s the hair on the end of the tail.

We have approximately the same number of claims today as in the late 1980s. Think about that. The cost of health care has doubled since then. The number of medical encounters between doctors and patients has gone up — and research shows a more or less constant rate of errors per hospitalizations. That means we have a declining rate of lawsuits relative to numbers of injuries.

So not only is the idea preposterous on its face, it won’t fix anything simply because it doesn’t address an actual problem.

What about frivolous lawsuits? Again, no one gets a dime unless the defendant voluntarily pays or the jury decides they (the plaintiffs) are entitled to it. But everyone likes good statistics, so here are some:

The best data on medical errors come from three major epidemiological studies on medical malpractice in the 1970s, 1980s and 1990s. Each found about one serious injury per 100 hospitalizations…Those same studies looked at the rate of claims and found that only 4 to 7 percent of those injured brought a case. That’s a small percentage. And because the actual number of injuries has gone up since those studies were done — while claims have remained steady — the rate of claims is actually going down.

Then there is that pesky little study that shows that caps don’t actually limit the number of lawsuits (frivolous or otherwise):

The Congressional Budget Office in December filed a report, based on a study of states that do have caps on damages, that showed little effect of lawsuits on the cost of health care.

“In CBO’s estimation, the effect would be relatively small - less than 0.5 percent of total health care spending,” the report of the nonpartisan agency stated.

And I’ve said before with regard to the claim that so many “frivolous lawsuits” are bringing up costs:

The whole idea has been debunked in studies, but also fails even the basic “smell” test. Lawsuits cost a lot of money to bring. You have to pay for experts, depose witnesses, pay for records, travel, etc. Plus, prosecuting the claim requires untold hours - weeks and weeks of time. No attorney is going to take a completely frivolous case and sink tens of thousands of dollars and hundreds of man hours in to it. It makes no sense. The principle that makes the market work so well in other respects - the assessment of risk on the part of individuals doing business with each other - is what keeps frivolous lawsuits down. No one is going to take such a risk and lose so much. 99 times out of 100 there must be a definite “case” before a lawyer is going to take it.

Certainly, some lawyers will misjudge the risk and take poor claims, but they are a small percentage. And they are not very good lawyers and they will not be around to make future claims. In any event, good and bad lawsuits, combined, only account for 1-1.5% of medical care costs.

And:

Nor can any of you, or I, determine the the viability of a claim simply by reading a newspaper account of the case, much less a newspaper account of just the demand. But even if you could: how does tort reform reduce frivolous lawsuits? Lawsuits that are truly frivolous collect nothing for the plaintiffs. So why would capping the damages matter? If someone “would have” recovered $500,000, but now only recover $250,000 because of a cap, the case was not frivolous (they recovered either way)! And whether or not there is a maximum or not, a frivolous lawsuit goes nowhere. People only get paid if a jury believes them (i.e. claim was not frivolous) or a defendant assesses the risk and decides there is a real risk of a jury finding against them (again, claim was not frivolous) and, thus, settles the case for less than what they feel they may be forced to pay should a jury make the final decision. Simple negotiation.

Finally, to that charge that costs are up because doctors must practice “defensive medicine” (recall that these so-called “big costs” are 1-1.5% of health case costs):

I’ve always found it interesting that we label a doctor’s choice to run MRIs and other sophisticated tests on patients as “defensive medicine.” This is a label concocted by the insurance companies and their lobbyists to cause people to believe that the testing is somehow illegitimate or wasteful.

The truth is that no doctor would run these tests if the doctor already knew what the patient’s particular health issue was.

And although no one will care to actually consider it, let’s also recall that it is certainly unconstitutional. Negligence law was developed through the common law dating back to England, and developed uniquely within each individual state in our Union. When a doctor is sued in Iowa he is subject to Iowa law (which has developed and/or been codified throughout Iowa’s history). Likewise, a doctor sued in Illinois is subject to Illinois law. No medical malpractice action is based on “American” or “federal” common law. Where would the federal government get the authority, or the right, to preempt each individual states’ common law development, or even those parts of the common law that have been codified? This area of the law has been strictly state-controlled since the dawn of our Union. See Article I, Section 8 of the US Constitution. Said section lays out the enumerated powers for the legislature. Then see Amendment X of the US Constitution, which specifically reserves all rights to the States except those specifically granted to the United States.

Bottom line: health care is expensive because insurance companies have a virtual monopoly in their business and in their state, because health insurance covers everything, unlike auto insurance (imagine the cost of your auto insurance if it covered every oil change, gas fill-up, or brake job), and because doctors do not have to deal directly with patients when setting costs - they treat you, then bill a third-party. The doctors and the third-party (insurance) only need to consider medical costs insofar as the two of them can continue to make a profit. The rest of us just get slammed with higher premiums. But what can we do? The cost of medical care (the same costs that make our premiums so high) makes it unthinkable to not have insurance - it’s like jumping without a parachute. The higher the doctors raise their costs, the more we need the insurance company’s insurance.

The solution? If conservatives want to tackle health care costs, they need to permit insurance companies to do business across state lines (Interstate Commerce Clause gives Congress this power) and increase competition. The individual states, which already regulate insurance 100%, need to set out what is and is not covered by a health insurance policy (just like they do with auto insurance). Routine appointments (oil changes, gas fill-ups) should be excluded. Completely foreseeable check-ups and physicals (new brakes every 50,000 miles) should also be excluded. If you can foresee these events, you can save for them. Reducing the insurance costs (from payouts to paperwork) for all the incidentals would drive premiums down - most of us will never see the doctor for a catastrophic loss, yet we routinely bill the insurance for little bits of this-and-that. Saving insurance for catastrophic events (which is the whole point of insurance in the first place), thus creating an actual risk pool between and among the insureds, would also drive premiums down. Do this at the state level so that the legislation can be responsive to the particular needs of the people and to cut down on bureaucratic costs.

Hot Air still thinks it’s a good idea.

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Basically, Rich is pointing to New York’s 23rd, where Repbublicans have refused to endorse a Republican-In-Name-Only who supports abortion rights, among other things, in favor of the Constitution Party candidate, Hoffman, who is actually conservative. The buzzword for liberal elites is always “moderate.” The Republican nominee, Scozzafava, was nothing but a Democrat, in reality. She supports abortion rights and supported Obama’s stimulus. No true conservative can believe that the Constitution actually protects abortion, or that the Federal Government has any business in wasting billions in tax dollarrs on bailouts. Thus, no true conservative has any business supporting such a candidate. But, because she is “electable” in liberal New York, she is considered to be a “moderate,” and somebody (of course) with whom the liberals are comfortable. The problem, of course, is that you are not a conservative if you support those things. The Republican Party has historically been the home for conservative voters. But no more. People used to be able to comfortably vote for the person with the “R” next to their name and know they were getting a conservative candidate. Nowadays, the “R” simply means that the person is generally just more conservative than the person in the same election with the “D” next to their name. John McCain is certainly no conservative, but compared to his opponent… People are beginning to realize that if the person is not conservative it is irrelevant that they stick the big “R” next to their name. It is irrelevant if they are “more conservative,” relatively speaking, to the socialist against whom they are running. In those situations, all we have is two liberals running against each other. What actual benefit is it to me if the winner of such a race happens to call herself a Republican? Zero.

So conservatives did the right thing and actually abandoned the “party” nominee and chose the third-party candidate that is actually conservative. How terrible to stand on your principles. If Democrats began running conservatives for office, I wonder if Rich would support them, despite the fact that they do not espouse liberal or progressive ideas, simply because they call themselves “Democrats”? (North Korea, a true Stalinist state, calls itself the “Democratic People’s Republic of Korea.”)

Anyway, the column is pretty pathetic, especially since Rich derails when he declares that this simple and principled stand in upper New York “could be a gift that keeps on giving to the Democrats through 2010, and perhaps beyond.” What is he talking about? How about some perspective, Rich? In the middle of it all, this pretty much summed up the entire problem with his argument:

That changing complexion is part of why the McCain-Palin ticket lost every demographic group by large margins in 2008 except white senior citizens and the dwindling fifth of America that’s still rural. It’s also why the G.O.P. has been in a nosedive since the inauguration, whatever Obama’s ups and downs. In the latest Wall Street Journal-NBC News poll, only 17 percent of Americans identify themselves as Republicans (as opposed to 30 percent for the Democrats, and 44 for independents).

Rich thinks that a “nosedive” in the percentage of people who identify as “Republicans” evidences some movement on the part of the American populace away from so-called “Republican-principles,” which he then assumes indicates a move away from conservatism. Rich is in league with the same people that write Obama’s speeches and justify massive government spending and bailouts by saying that we need to “break from the failed policies of the past.” These people incorrectly presume that because the previous administration was “Republican,” that therefor any “bad things” that can be blamed on the previous administration can likewise be blamed on conservatism. The problem is that George Bush, despite his Republican moniker, increased non-defense discretionary domestic spending by nearly double what Clinton did - and that’s just Bush’s first term. Bush was decidedly not a conservative. But liberals believe he was, and believe that any of his failures are failures of conservatism.

In fact, the opposite is true. The Republican Party has become Democrat Lite since Reagan and we, the American people, have been left with “bad” and “worse” in our choice of elected officials. People are getting tired of it. People recognize that the shift away from conservative principles has not been a good thing, especially when it comes to taxes and domestic spending, and are leaving the Republican Party - not because they disavow conservatism, but because the Republican Party is no longer the home for conservative voters. Thus, Rich’s reliance on a poll that takes only one thing into consideration - party affiliation - misleads him into thinking that the country is getting more liberal while the Republicans are getting more radical (thus, by endorsing a “radical,” the GOP (and conservatism) are just moving themselves farther away from the “mainstream”). In fact, the Republicans became more liberal, got skunked in consecutive elections, and their constituents decided they’d had enough. Liberal Republicans look “moderate” and “reasonable” to liberal elites, while the old conservative constituents, now abandoning the party, appear “right wing” and “radical.” So Rich thinks the Republican Party is moving itself into oblivion, when, in fact, it is being forced to move itself back to the core principles upon which it was founded precisely because it had nearly moved itself into oblivion by becoming Democrat Lite.

Related: Donald Douglas takes Charles Johnson of LGF to task for calling the Conservative Party candidate a “radical” and the “Glenn Beck Candidate.” (The Memeorandum page).

As an update, the “R” candidate has now thrown her support behind the “D” candidate instead of the candidate with actual conservative credentials. This just shows you how meaningless the “R” has become.

Updat 2: Although Scozzafava endorsed her Democratic opponent, her manager has backed the Conservative Party candidate, Hoffman. (Memeorandum cite.)

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I’ve always found it interesting that we label a doctor’s choice to run MRIs and other sophisticated tests on patients as “defensive medicine.” This is a label concocted by the insurance companies and their lobbyists to cause people to believe that the testing is somehow illegitimate or wasteful.

The truth is that no doctor would run these tests if the doctor already knew what the patient’s particular health issue was.

Exactly. The only time they practice so-called “defensive medicine” is when they haven’t figured out the problem and still need to perform additional tests to correctly determine what the problem actually is. And if they felt some other test was likely to diagnose the problem, that test would be run first.

Piece #2:

Do you think you’re OK because you have insurance?

But what if your health-insurance company refuses to pay for the care your doctor says will save your life? You can be denied coverage by your workplace insurer and you have no real remedy to fight back.

The Employment Retirement Income Security Act of 1974 covers employee health plans. Once Congress acts in a particular area, all state law on the subject - including normal civil remedies - is gone.

ERISA eliminates remedies that used to be available if your insurer denied you coverage in bad faith. You could sue for damages to compensate you for the lost income, pain and disability caused by a delay in treatment caused by refusal to cover a necessary procedure. Now, those remedies are gone.

The only recourse you have is to sue for the benefits denied. That’s it. All the insurance company ever has to pay you is what it should have paid you in the first place. Insurers engage in rampant coverage exclusion and claim denial. They get rich saying “no” to policyholders who need health care.

Is it any wonder that insurance is so costly considering how much it is regulated by government? From ERISA pre-empting your right to seek redress in a local court in front of local people, to your entire policy basically being dictated by state statute, and insurance companies being permitted to monopolize care within individual states (unlike other industries), it is really not a shock that the industry is such a mess - and so inefficient for consumers.

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Rush Limbaugh wants to own the Rams and I am hearing from African-Americans…that they are offended by Rush’s words…I’m going to drop a stat on you: Since 2000, 451 NFL players have been arrested. 28% DUI. 21% assault. 15% domestic violence… [Regarding Pac Man Jones], I don’t see any players saying he doesn’t deserve a second chance in the league. African-American players have quite a lot of sympathy for Pac Man. And Michael Vick who tortured animals. I’m appalled by Michael Vick. Rush Limbaugh? Just a blowhard. Words are words. Actions are appalling. Shootings, weapons charges, drugs, DUIs, torture, cruelty, domestic issues. Yet Rush is insensitive. All those - weapons charges and drugs and torture - defended by players! “Michael Vick deserves a second chance.” “Plaxico, he only shot himself.” Uh, that was illegal. “But he deserves a second chance.” … 73 players, last year, DUIs. Assault, 21%. Domestic violence. Beating a wife or girlfriend. Where’s the outcry for that? “Oh, Rush is mean and insensitive.” “Rush is terrible for football! But Michael Vick, darnit, he deserves to be right back in there, because animal torturers, they are right for the league.”… When they [NFL players] put my kids in jeopardy - DUIs - when they beat their family or torture animals, I’m offended by that. That offends me. Crazy conservative radio guy is just crazy conservative radio guy.”

He does go on to say that there is no real proof Rush is a racist. Cowherd mentions, for instance, that Rush is heavily sponsored by corporate America. Those sponsorships would not exist if there was any real proof of racism. But the broader point, of course, is the hypocrisy of so many black leaders hyperventilating over Rush’s potential part ownership of the Rams, while barely a peep is made about the actual actions of black athletes in the NFL. I wonder who is more of a role model for kids?

Jason Whitlock gets in to the game, but, unfortunately, loses sight of reason (which is rare, for him).

Rush Limbaugh would be devastating to the NFL brand. Just as it has in the past seven days, his style of racial politics would upset employees and take attention away from the games.

This is the major difference between Rush and Jay-Z. Beyonce’s boyfriend raps a bunch of dumb, racist, sexist (spit) but serious people don’t take Jay-Z or his music seriously. Jay’s expression of self-hatred does not bother NBA players, NBA fans or remotely overshadow what transpires on the court.

That would not be the case for Limbaugh. He would be a nightmare. He would make Marge Schott seem like Jimmy Carter, Martin Luther King Jr. and Malcolm X rolled into one package.

Here are two quotes attributed to Limbaugh in a 2006 book, “101 People Who Are Really Screwing America,” by Jack Huberman.

* “You know who deserves a posthumous Medal of Honor? James Earl Ray (Dr. King’s assassin). We miss you, James. Godspeed.”

* “Let’s face it, we didn’t have slavery in this country for over 100 years because it was a bad thing. Quite the opposite: Slavery built the South. I’m not saying we should bring it back. I’m just saying it had its merits. For one thing, the streets were safer after dark.”

Let’s start from the bottom. Whitlock “proves” Limbaugh’s racism by lifting the above quotes from a book on Limbaugh. Unfortunately for Whitlock, those quotes are not cited by the author of the book (nor is Whitlock able to source the quotes). That is, no one can actually point to when or where Limbaugh made those quotes. Well, Jason. Doesn’t that pretty much disqualify them from being considered “truthful” in the journalistic world? Or are you more Jayson Blair than Jason Whitlock, these days? With these racist “assumptions,” Whitlock then goes on to say that Rush would be a disaster for the NFL, despite the fact that people like Jay-Z, who rap about all types of terrible things, much worse than anything Limbaugh has said, are owners in other leagues. His excuse? No one takes Jay-Z seriously. Really? People listening to Jay-Z don’t aspire to the lifestyle represented in his lyrics? Whitlock actually believes that Rush has more of an influence on people than Jay-Z? Maybe he does, but remember that Rush is listened to by adults. Adults have generally made up their minds. They listen to Rush to “affirm” the beliefs they already hold (Cowherd mentioned this, too). Kids listen to Jay-Z. Kids copy Jay-Z. Kids aspire to be like Jay-Z and other rappers. Whitlock, you have derailed on this one.

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What could play a central role reforming the nation’s health care system happens in a small conference room of the Aesculapius Medical Center — two patients learning the basics of managing their diabetes.

The pilot program begun in 2003 aims to reach patients with chronic conditions, keep them healthier and, ultimately, save money by heading off expensive hospitalizations and procedures. Already, emergency room visits are down.

It’s health care at its most basic, but in some ways it’s revolutionary. In a system where private insurers and the government reimburse providers for treating sick patients, the physicians who treat the two diabetes patients will get more if they stay healthy.

Setting aside the debate over whether the program actually works or not (which is a separate post), let’s assume for the sake of argument that it does.

If the State of Vermont has a successful program for improving health care, or lower health care costs, why would that be a model for the federal government? It seems to me that Vermont’s success would be a model for other states.

Consider first that health care at the federal level is unconstitutional. See Article I, Section 8 of the US Constitution. Said section lays out the enumerated powers for the legislature. Then see Amendment X of the US Constitution, which specifically reserves all rights to the States except those specifically granted to the United States.

Now, recognize that the Courts have often used the “general welfare” and “necessary and proper” clauses of Article I, Section 8, to broaden the powers of the United States vis-a-vis the States, but that argument is easily dismissed.

To lay taxes to provide for the general welfare of the United States, that is to say, “to lay taxes for the purpose of providing for the general welfare.” For the laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. They are not to lay taxes ad libitum for any purpose they please; but only to pay the debts or provide for the welfare of the Union. In like manner, they are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose.

To consider the latter phrase, not as describing the purpose of the first, but as giving a distinct and independent power to do any act they please, which might be for the good of the Union, would render all the preceding and subsequent enumerations of power completely useless. It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and, as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they please.

It is an established rule of construction where a phrase will bear either of two meanings, to give it that which will allow some meaning to the other parts of the instrument, and not that which would render all the others useless. Certainly no such universal power was meant to be given them. It was intended to lace them up straitly within the enumerated powers, and those without which, as means, these powers could not be carried into effect. It is known that the very power now proposed as a means was rejected as an end by the Convention which formed the Constitution. A proposition was made to them to authorize Congress to open canals, and an amendatory one to empower them to incorporate. But the whole was rejected, and one of the reasons for rejection urged in debate was, that then they would have a power to erect a bank, which would render the great cities, where there were prejudices and jealousies on the subject, adverse to the reception of the Constitution.

2. The second general phrase is, “to make all laws necessary and proper for carrying into execution the enumerated powers.” But they can all be carried into execution without a bank. A bank therefore is not necessary, and consequently not authorized by this phrase. It has been urged that a bank will give great facility or convenience in the collection of taxes. Suppose this were true: yet the Constitution allows only the means which are “necessary,” not those which are merely “convenient” for effecting the enumerated powers.

The words of Thomas Jefferson.

Nothing prevents the individual states from addressing health care, unless they have prohibited it in their own constitutions or by statute. Further, it makes infinitely more sense to allow a state the ability to reform health care, considering the state is a much smaller entity population-wise and size-wise. Do we really think the United States government capable of any top-down solution that would be even remotely fair or responsive to the needs of the people considering a population of 307 million spread out over 10,000,000 square miles, with 50 state governments and an infinite number of different cultures, attitudes, and societal realities? We’ve already seen how slow, bureaucratic, wasteful and inefficient the US government can be. But the State of Iowa could be responsive to its own people, could it not? A smaller group of people with more direct say in their government can expect more locally-tailored and responsive programs and legislation. Problems can be addressed easily and quickly, as most people will be in a similar situation, being Iowans.

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Nowhere does the post say how the federal government could constitutionally justify such an intrusion into the legal system, traditionally regulated by each individual state. In no way does the Constitution justify Congress’ foray into tort reform. Nor does the post mention that the “$110 billion in savings,” which is higher than most estimates I’ve seen, would account for approximately 5.5% of our country’s health care budget. So we’re going to ask the government to interfere with the market - and not to prevent crime or fraud, mind you - to maybe save 5.5%?

I’ve laid this out in a detailed post once before, but I will repeat some of it here:

In any event, I always find it funny when conservatives call for tort reform, because it is a very un-conservative thing if you actually think about it. I find it even funnier that Cao would cite tort reform in the same breath as “free-market” and “government should get out of the way,” despite the fact that tort reform asks the government to substitute its general judgment for that of a specific jury listening to the specific facts of a case. It asks for the government to decide, without being privy to case-by-case analysis, to simply decide that “all” cases of a certain type are worth, at a maximum, “X number” of dollars, thus taking away from the jury - and the market - the ability to determine, on a case-by-case basis, the actual value of your case. Very un-conservative.

And:

According to the actuarial consulting firm Towers Perrin, medical malpractice tort costs were $30.4 billion in 2007, the last year for which data are available. We have a more than a $2 trillion health care system. That puts litigation costs and malpractice insurance at 1 to 1.5 percent of total medical costs. That’s a rounding error. Liability isn’t even the tail on the cost dog. It’s the hair on the end of the tail.

We have approximately the same number of claims today as in the late 1980s. Think about that. The cost of health care has doubled since then. The number of medical encounters between doctors and patients has gone up — and research shows a more or less constant rate of errors per hospitalizations. That means we have a declining rate of lawsuits relative to numbers of injuries.

Too many conservatives miss the forest through the trees. They see a way to save a dollar (allegedly) and think that saving that dollar becomes more important than any other consideration. I agree that fiscal responsibility is important, and should be a top priority for any real conservative, but that fiscal savings should be had at the expense of bureaucratic government programs that are wasteful, unnecessary, and inefficient. We should not be looking to save money in the private sector unless we are willing to use private-sector, free market solutions. Enlarging the size and scope or the government to prevent something that the free market tolerates (and is not criminal or fraudulent in nature) is not conservative. Besides, most government “solutions” have a multitude of unwanted and undesirable effects.

I have a lot more information at the previous post, and I address some specific concerns there, too.

To address Ed’s specific shots at lawyers:

Less time will get wasted, fewer claims will get filed, and patients will get the care they need and not what the providers’ lawyers require….Congress wants to play class warfare with “fees”, excise taxes, “windfall profits taxes” on an industry averaging a 3.3% profit margin while trial lawyers earn an average 14% profit margin.

First of all, patients do not have their care determined by a provider’s lawyer. That is absurd. Recall that any time a doctor has been found negligent in a medical malpractice action, a non-professional jury of regular Joes heard the facts (presented by each side) and had to hear expert testimony from other medical doctors in the same field, practicing in the same area, who must testify that the doctor in question breached the local standard of care (doctors have to say the doctor in question was negligent - no one else is qualified to give that testimony). Other doctors in the area can then alter their practices, if they so choose, to make sure they are complying with the standard of care as laid out by other local doctors in their field, and simply enforced by a jury. I repeat: The jury, and the lawyers, do not create the standard of care for doctors - they just enforce it.

Second of all, the entire insurance industry is regulated by the individual states. When I say “entire,” I mean 100%. In Iowa and Illinois, for example, your policy is basically written by the legislature. If there is a problem, the states can step in and remedy it. Why the hell is Washington, D.C. considered as a possible fixer of the industry?

Third of all, a lawyer’s profit margin is 100% set by a contract between two people. You walk in, I offer you a contract, you can walk out the door. On the other hand, in the medical world, patients (party A) go see their doctor (party B) who actually sends his bill to an insurance company (party C). So without the patient in mind, insurance companies and doctors only need to worry about charging an amount that makes them both money. Doctors and hospitals can charge what they like, and the insurance companies pass it on to the consumer in the form of premiums. So the party with whom you actually contract for your health care costs, your insurance company, is not the actual medical care provider. Who walks into a hospital and haggles over the rates before a procedure? No one. But you can contract with your insurance company over your premiums, you say? True, except that insurance companies cannot operate across state lines (so there is a lot less competition). Plus, how many attorneys are in your metropolitan area - hundreds, thousands, more than a million? That’s a lot of competition. How many health insurance companies can you choose from? Maybe half a dozen? So while attorneys have to actually compete for your business, the one or two hospitals within driving distance of your house have a near monopoly on your business for simple lack of another facility in the area, and the non-competitive insurance industry has very little incentive to pressure doctors to lower their rates.

And isn’t there something wrong with conservatives trying to justify a plan by pointing out that someone else is making money, even though the money made is completely via the invisible hand of the market? Combined with the unconstitutional nature of the entire thing…

Rather than blab on, most of the points are at my previous link. Check it out.

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The Federal Trade Commission will try to regulate blogging for the first time, requiring writers on the Web to clearly disclose any freebies or payments they get from companies for reviewing their products.

The FTC said Monday its commissioners voted 4-0 to approve the final Web guidelines, which had been expected. Violating the rules, which take effect Dec. 1, could bring fines up to $11,000 per violation. Bloggers or advertisers also could face injunctions and be ordered to reimburse consumers for financial losses stemming from inappropriate product reviews.

Dana has some great thoughts on the matter, so go read his brief post. My favorite argument against the FTC’s rule, however, is here:

[T]he FTC assumes – as media people do – that the internet is a medium. It’s not. It’s a place where people talk. Most people who blog, as Pew found in a survey a few years ago, don’t think they are doing anything remotely connected to journalism. I imagine that virtually no one on Facebook thinks they’re making media. They’re connecting. They’re talking. So for the FTC to go after bloggers and social media – as they explicitly do – is the same as sending a government goon into Denny’s to listen to the conversations in the corner booth and demand that you disclose that your Uncle Vinnie owns the pizzeria whose product you just endorsed.

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I have no problem with any of the substantive criticism of President Obama from the right or left. But something very dangerous is happening. Criticism from the far right has begun tipping over into delegitimation and creating the same kind of climate here that existed in Israel on the eve of the Rabin assassination.

What kind of madness is it that someone would create a poll on Facebook asking respondents, “Should Obama be killed?” The choices were: “No, Maybe, Yes, and Yes if he cuts my health care.” The Secret Service is now investigating. I hope they put the jerk in jail and throw away the key because this is exactly what was being done to Rabin.

His years of disliking Bush obviously aided him in completely ignoring and/or missing most of what was said about Bush - the vast majority of which was equal to, or worse, than what has been said about Obama.

For example there is a group named “We all Want To Kill George Bush” with 429 members, and LETS KILL BUSH WITH SHOES has 484 members…The optimistic leader of the group “I bet that I can find 1000000 people who wanted to kill Bush” has fallen short with 518 members…It’s clear that the Secret Service’s job is to take threats to the president seriously but what should be the standards for Facebook?

Facebook spokesman Barry Schnitt admitted to the San Jose Mercury News that Facebook frequently disables content that violates its taste standards, and says that, “There is a lot of gray area.”

“Gray area” being determined by on political affiliation, I suppose.

Some liberals are unbelievably shrill. 8 years of crazies talking about assassinating Bush and 8 years of calling Bush a liar. Less than 1 year of Obama with one facebook poll and one House member yelling “You lie” means the right-wing is a bunch of racist assassins.

Friedman is an idiot.

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