Daily Digest for March 12th

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Judicial Malfeasance and Bills of Attainder

Filed in PoliticsTags: ACORN, Constitutional Rights, Judiciary, SCOTUS, Separation of Powers

When the US Congress last year voted overwhelmingly to cut off federal funding of ACORN, one may have believed that Congress was exercising its constitutional authority to legislate the appropriation of government funds. According to activist liberal District Judge Nina Gershon, one would be wrong.

ACORN sued the US Government, claiming that the de-funding legislation constituted a bill of attainder, the issuance of which, per Article I Section 9 of the US Constitution, Congress is expressly prohibited. Unsurprisingly, Judge Gershon agreed, and in December issued a temporary injunction against the congressional ACORN funding ban. Yesterday, she made that injunction permanent.

Historical and Constitutional Context

First, some background on bills of attainder. Here is the general definition:

attainder n. The loss of all civil rights by a person sentenced for a serious crime. [< OFr. attaindre, to convict]

TechLawJournal goes into more detail:

"The Bill of Attainder Clause was intended not as a narrow, technical (and therefore soon to be outmoded) prohibition, but rather as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function or more simply - trial by legislature."  U.S. v. Brown, 381 U.S. 437, 440 (1965).

"These clauses of the Constitution are not of the broad, general nature of the Due Process Clause, but refer to rather precise legal terms which had a meaning under English law at the time the Constitution was adopted.  A bill of attainder was a legislative act that singled out one or more persons and imposed punishment on them, without benefit of trial.  Such actions were regarded as odious by the framers of the Constitution because it was the traditional role of a court, judging an individual case, to impose punishment."  William H. Rehnquist, The Supreme Court, page 166.

Bills of Attainder and The Supreme Court

The Supreme Court of the United States (SCOTUS) has construed several cases as representing bills of attainder.

  • In Ex Parte Garland (1866), SCOTUS held that a law that prohibited Civil War opponents from holding public office constituted a bill of attainder.
  • In Cummings v. Missouri (1866), SCOTUS held that the amendment of the Missouri Constitution to require an Oath of Loyalty constituted an ex post facto law that prohibited the plaintiff from practicing his profession, and constituted a bill of attainder as punishment without trial.
  • In US. v. Lovett (1946), SCOTUS held that the withholding of appropriation of salaries of government workers because of their involvement with the Communist party constituted a bill of attainder. Interestingly, the concurring opinion, which concludes that the section in question is not a bill of attainder, discusses the historical meaning and context of bills of attainder, and includes this statement:

    "There was always a declaration of guilt either of the individual or the class to which he belonged."

    And again:

    "But if it is not an ex post facto law, the reasons that establish that it is not are persuasive that it cannot be a bill of attainder. No offense is specified and no declaration of guilt is made."

    And finally:

    When the framers of the Constitution proscribed bills of attainder, they referred to a form of law which had been prevalent in monarchial England and was employed in the colonies. They were familiar with its nature; they had experienced its use; they knew what they wanted to prevent. It was not a law unfair in general, even unfair because affecting merely particular individuals, that they outlawed by the explicitness of their prohibition of bills of attainder.

    (I quote extensively from Lovett, as it is largely upon this decision that Judge Garshon bases her opinion.)

  • In US v. Brown (1965), SCOTUS held that a law that prohibited members of the Communist party from holding office in labor unions constituted a bill of attainder. In issuing his decision, Chief Justice Warren included several other historical examples of bills of attainder, including capital punishment, confiscation of property, corruption of blood (confiscation of one's estate such that it cannot be passed on through inheritance), banishment, disenfranchisement, and exclusion from holding public office. Warren also expressed that the historical context of the Bill of Attainder clause was intended to enforce the separation of powers and to prevent tyranny by preventing trial by legislature and punishment without trial.
  • In Nixon v. Administrator of General Services (1977), SCOTUS held that a law requiring former president Richard Nixon to preserve certain presidential papers and effects did not constitute a bill of attainder, finding that:

    While the Bill of Attainder Clause serves as an important bulwark against tyranny, it does not do so by limiting Congress to the choice of legislating for the universe, or legislating only benefits, or not legislating at all.

    Further that:

    The Act's specificity in referring to appellant by name does not automatically offend the Bill of Attainder Clause.

    (These providing useful limits on the constitutional scope of the Bill of Attainder clause.)

  • In Selective Service Administration v. Minnesota PIRG (1984), SCOTUS held that a law requiring proof of registration with Selective Service in order to be eligible for federal student aid did not constitute a bill of attainder. An important finding:

    Section 12(f) does not inflict punishment within the meaning of the Bill of Attainder Clause. It imposes none of the burdens historically associated with punishment. It does not even deprive appellees of Title IV benefits permanently, since it leaves open perpetually the possibility of qualifying for aid.

    Note that this finding includes limiting the scope of attainder to "the burdens historically associated with punishment".

Summary of SCOTUS Definition and Scope of the Bill of Attainder Clause

Thus, one can readily understand the five-pronged test applied to determine applicability of the Bill of Attainder clause:

  1. A legislative act of Congress (or of a State)
  2. Specifying a readily identifiable individual or group
  3. Declaring the guilt of the person or group regarding a specific offense
  4. Enacting an attainder - or punishment - against the person or group specified
  5. For which that person or group has not been convicted in a judicial trial

To offend the Bill of Attainder clause, a law must declare the guilt of a person or group regarding  a specific offense, and must then enact an attainder in response to that guilt. As is demonstrated in the above-referenced SCOTUS decisions, the concept of "attainder" consists of "the burdens historically associated with punishment" - those burdens being generally the deprivation of life, liberty, or property; corruption of blood; disenfranchisement; prohibition from holding public office; or prohibition from earning a living by practicing one's profession.

Further, SCOTUS holds that the mere act of calling out a specific person or group does not offend the Bill of Attainder clause.

These points are crucial to understanding the constitutionality (or lack thereof) of Judge Gershon's ruling.

The ACORN Ruling

Returning to the ACORN ruling, the crux of the plaintiffs' argument can be found on page 9:

Plaintiffs acknowledge that HUD, pursuant to the OLC memorandum, has paid, or has agreed to pay, for work already performed under existing contracts. They contend that congressional suspension of existing contracts and the denial of the opportunity to obtain future contracts amounts to punishment that violates the Bill of Attainder clause.

Gershon quotes from Nixon v. Administrator of General Services to define a bill of attainder as:

...a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial.

She then explains the three-pronged test to determine if a statute "directed at a named or readily identifiable party" is punitive:

[F]irst, "whether the challenged statute falls within the historical meaning of legislative punishment"; second, "whether the statute, viewed in terms of the type and severity of burdens imposed, reasonably can be said to further non-punitive legislative purposes," an inquiry sometimes referred to as the "functional test"; and third, "whether the legislative record evinces a legislative intent to punish."

Of course, in quoting these criteria from Consolidated Edison Company of NY, Inc. v. Pataki, (Con. Ed.) she gives herself an out. Further quoting:

A statute "need not fit all three factors to be considered a bill of attainder, rather, those factors are the evidence that is weighed together in resolving a bill of attainder claim."

(Notice that Gershon quotes not from SCOTUS - from which ample clarification of the definition and scope of the Bill of Attainder clause have come - but rather from a Second Circuit Court of Appeals decision.)

Historical Meaning of Legislative Punishment

Having laid the groundwork, Gershon then proceeds to explain how the ACORN defunding constitutes a bill of attainder. To do so, she quotes liberally from Lovett, in an attempt to conflate the denial of duly earned salary of a government employee to the prohibition of issuing federal contracts to ACORN.

The first problem with this conflation is that, in Lovett, the plaintiffs were duly employed government workers, and the law in question effectively fired them against the wishes of their employing agencies. On the other hand, ACORN is simply a government contractor: an agency attempting to procure government grants and contracts. Thus, the government-employee plaintiffs in Lovett had a reasonable expectation not to remain employed - even a right not to be fired without cause, while ACORN has no reasonable expectation of being granted future government grants or contracts - much less a right to the same.

Gershon attempts to avoid this obvious distinction by invoking a future opportunity claim:

The government attempts to distinguish Lovett on the ground that the plaintiffs in that case had a "vested property interest" in their jobs, whereas here, as plaintiffs unequivocally acknowledge, the have no right to the award of a grant or contract from the federal government. but the Court in Lovett did not base its decision on property rights analysis. The Supreme Court found a deprivation amounting to punishment under the Bill of Attainder clause, not only because plaintiffs were derived of their earned income from existing government jobs, but also because they were deprived of any future opportunity to serve the government. As the Court stated, "[t]his permanent proscription from any opportunity to serve the Government is punishment, and of a most severe type." Id That plaintiffs had no right to any particular job was of no moment.

Gershon's reasoning here is faulty. The government employees in Lovett were clearly "serving the government" in their employment. ACORN clearly was not. If anything, the government was providing a benefit to ACORN, through the awarding of grants and contracts.  Further, the government work in which the Lovett plaintiffs were employed constitutes a chosen vocation, from which the statute in question effectively barred the plaintiffs. The ACORN defunding in no way can be construed to have, effectively or otherwise, barred ACORN from its chosen vocation - that vocation ostensibly being voter advocacy, and low-income housing and mortgage counseling.

Gershon then attempts to explain how Selective Service Administration v. Minnesota PIRG is not applicable:

Further, unlike the plaintiffs affected by the statute at issue in Selective Service, plaintiffs here cannot avoid the restrictions imposed upon them. Nothing in the challenged provisions affords plaintiffs an opportunity to overcome the ban.

Again, Gershon's reasoning is faulty. The federal funding ban imposed upon ACORN does not prevent ACORN from engaging in its chosen vocation. ACORN still retains the same rights of every other business in the country, to secure funding or to solicit funds through any other means in the private sector. The inherent implication in Gershon's argument here is that ACORN has a right to government funding. To wit, Gershon then quotes from Nixon and makes the following assertion:

"[I]t has been held permissible for Congress to deprive Communist deportees, as a group, of their social security benefits, but it would surely be a bill of attainder for Congress to deprive a single, named individual of the same benefit...The very specificity would mark it as a punishment, for there is rarely any valid reason for such narrow legislation[.]"

Accordingly, a close reading of the cases indicates that a deprivation of the opportunity to apply for funding in fact fits comfortably within the definition of "punishment" for bill of attainder purposes.

Quite to the contrary, the referenced cases are quite explicit regarding the scope of a "punishment" for bill of attainder purposes. That scope includes deprivation of life, property, or liberty (for example, to pursue a chosen vocation, to vote, to hold public office). Deprivation of the opportunity to apply for public funding in no way resembles the clear scope of a bill of attainder punishment as determined by SCOTUS.

If anything, deprivation of the opportunity to apply for public funding as a claim not against the Bill of Attainder clause, but rather the Due Process clause. However, the plaintiffs have not raised a Due Process claim. In fact, as quoted from Lovett (upon which Gershon relies heavily in her decision) above, the Bill of Attainder clause specifically excludes the sort of general, broad matters encompassed in the Due Process clause [emphasis added]:

When the framers of the Constitution proscribed bills of attainder, they referred to a form of law which had been prevalent in monarchial England and was employed in the colonies. They were familiar with its nature; they had experienced its use; they knew what they wanted to prevent. It was not a law unfair in general, even unfair because affecting merely particular individuals, that they outlawed by the explicitness of their prohibition of bills of attainder.

Thus, plaintiffs may argue that deprivation of the opportunity to apply for public funding is unfair, and a violation of Due Process and/or Equal Protection - but that deprivation is clearly and explicitly not a legislative punishment as evinced by the Bill of Attainder clause.

Functional Test and Legislative History

Next, Gershon moves on to explaining why the statute is punitive. I see no need to discuss either the functional test or the legislative history, as without a justifiable bill of attainder punishment, the question of the punitive nature of the statute is irrelevant. Without a legislative punishment, the statute by definition cannot be punitive.

Failing the Bill of Attainder Test

The ACORN defunding ban fails the Bill of Attainder test on two counts:

  1. Declaring the guilt of the person or group regarding a specific offense
  2. Enacting an attainder - or punishment - against the person or group specified

The matter of legislative punishment has been discussed already. However, Gershon's decision doesn't even address that the statute in question neither names an offense committed by ACORN nor declares ACORN' guilt with respect to such offense. The historical and constitutional context of the Bill of Attainder clause is quite clear that declaration of guilt of a specified offense is required for a statute to be considered to be a bill of attainder. Recall the statement from the concurring opinion in Lovett, upon which Gershon relies heavily in her opinion:

“There was always a declaration of guilt either of the individual or the class to which he belonged.”

This point is quite clear - and that the ACORN statute fails to meet this criterion is equally clear. Had the government, as a result of the ACORN statute, not fulfilled its current contractual obligations to ACORN, then plaintiffs would have had an ex post facto argument; however, as Gershon explains at the beginning of her decision, the government has agreed to fulfill all contractual obligations, and ACORN is not pursuing an ex post facto argument.

Over-Stepping Separation of Power

Having ruled in favor of ACORN, Gershon then issues her ruling, which essentially permanently enjoins all listed plaintiffs (HUD, OMB, Treasury, Commerce, DOD, and EPA) against enforcing (or instructing their subordinates to enforce) the ACORN statute. As a reminder, this statute reads:

None of the funds available by this joint resolution or any prior Act may be provided to the Association of Community Organizations for Reform Now (ACORN), or any of its affiliates, subsidiaries, or allied organizations.

Essentially, as the order is written, if any of the listed government agencies denies any future grant or contract to ACORN, it can be accused of violating Judge Gershon's order. In other words, Gershon has just granted ACORN a constitutional right to public funds.

Unfortunately for Judge Gershon, the Constitution grants the right of appropriation of public funds to the Legislature, not to the Judiciary.

BigGovernment.com explains further:

It’s noteworthy that in discussing the Bill of Attainder Clause of the Constitution, the district court failed to discuss at all the Appropriations Clause. That provision states that, “No money shall be drawn from the Treasury, but in consequence of appropriations made by law.” In other words, only Congress can dole out federal dollars.

The court fails to consider whether it has the authority to order the executive branch (the Treasury Department) to continue giving federal dollars to ACORN after the legislative branch (Congress) with sole possession of the power of the purse has specifically passed a law barring any such appropriation. This opinion doesn’t even raise the separation-of-powers issue of a court dictating federal spending.

By enjoining every government agency with any contact with ACORN against denying ACORN any public funds, Gershon has compelled the Legislature to appropriate funds against the expressed prerogative of the Legislature. Further, this ruling sets the precedent for any other government contractor for whom a contract (or grant) is cancelled, or not renewed, to petition the courts on a Bill of Attainder claim.

This ruling is a clear case of liberal judicial activism and malfeasance, and represents a frontal assault on the Constitution. Surely SCOTUS will vacate this decision and put Judge Gershon in her place - although, after such a decision, her place is off the federal bench entirely.

Daily Digest for March 11th

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Daily Digest for March 10th

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A History Lesson for the President of Goshen College

Filed in Religion, Social IssuesTags: Christianity, Conservatism, Constitutional Rights

A recent RedState post detailed the valiant efforts of conservative students at Goshen College (Goshen, IN) to reverse the school's decision to ban the National Anthem. Apparently, the President's Council at the school deemed the lyrics of the song ("the rocket's red glare, the bombs bursting in air") to be incompatible with the school's pacifist Mennonite beliefs.

Fortunately, the story has a happy ending, as the students, led by Sophomore Ryan Troyer, convinced the President's Council to reconsider its stance. The school will now allow an instrumental version of the song to be played before sporting events. However, I take issue with the views expressed by the school's president, Jim Brenneman. I believe Mr. Brenneman is in need of a history lesson.

The statement announcing the decision of the President's Council to permit instrumental versions of the National Anthem includes the following statement:

One concern that many Mennonites have had with the playing of the national anthem has been that it places love for country above love for God. But, Brenneman said, "we believe playing the anthem in no way displaces any higher allegiances, including to the expansive understanding of Jesus – the ultimate peacemaker – loving all people of the world."

As I will demonstrate, the concern that the playing of the national anthem "places love for country above love for God" belies an ignorance of both the historical context and the religious connotation in the content of the anthem.

Regarding the lyrics of The Star Spangled Banner, I remind Mr. Brenneman of the backstory of the poem that would become our National Anthem:

Meanwhile, Britain’s naval force, buoyed by its earlier successful attack on Alexandria, Virginia, was poised to strike Fort McHenry and enter Baltimore Harbor.  At 6:30 AM on September 13, 1814, Admiral Cochrane’s ships began a 25-hour bombardment of the fort. Rockets whistled through the air and burst into flame wherever they struck. Mortars fired 10- and 13-inch bombshells that exploded overhead in showers of fiery shrapnel.  Major Armistead, commander of Fort McHenry and its defending force of one thousand troops, ordered his men to return fire, but their guns couldn’t reach the enemy’s ships. When British ships advanced on the afternoon of the 13th, however, American gunners badly damaged them, forcing them to pull back out of range. All through the night, Armistead’s men continued to hold the fort, refusing to surrender. That night British attempts at a diversionary attack also failed, and by dawn they had given up hope of taking the city.  At 7:30 on the morning of September 14, Admiral Cochrane called an end to the bombardment, and the British fleet withdrew. The successful defense of Baltimore marked a turning point in the War of 1812. Three months later, on December 24, 1814, the Treaty of Ghent formally ended the war.

Star Spangled Banner

The Star-Spangled Banner: the flag that flew over Ft. McHenry the morning after the Brittish bombardment during the War of 1812, inspiring Francis Scott Key to write the poem that would become our national Anthem

Because the British attack had coincided with a heavy rainstorm, Fort McHenry had flown its smaller storm flag throughout the battle. But at dawn, as the British began to retreat, Major Armistead ordered his men to lower the storm flag and replace it with the great garrison flag. As they raised the flag, the troops fired their guns and played “Yankee Doodle” in celebration of their victory. Waving proudly over the fort, the banner could be seen for miles around—as far away as a ship anchored eight miles down the river, where an American lawyer named Francis Scott Key had spent an anxious night watching and hoping for a sign that the city—and the nation—might be saved.

...

Friends of Dr. Beanes asked Georgetown lawyer Francis Scott Key to join John S. Skinner, the U.S. government’s agent for dealing with British forces in the Chesapeake, and help secure the release of the civilian prisoner.  They were successful; however, the British feared that Key and Skinner would divulge their plans for attacking Baltimore, and so they detained the two men aboard a truce ship for the duration of the battle. Key thus became an eyewitness to the bombardment of Fort McHenry.

This flag - the Stars and Stripes, the Star-Spangled Banner - whose against-all-odds presence inspired Francis Scott key that fateful morning, represented the triumph of freedom over the forces of war. See the third verse:

And where is that band who so vauntingly swore
That the havoc of war and the battle's confusion,
A home and a country should leave us no more!
Their blood has washed out their foul footsteps' pollution.
No refuge could save the hireling and slave
From the terror of flight, or the gloom of the grave:
And the star-spangled banner in triumph doth wave
O'er the land of the free and the home of the brave.

Thus, in its mention of "the rocket's red glare, the bombs bursting in air," the poem is not romanticizing the war, but rather celebrating the triumph of America - and the freedom our contry represents - against the onslaught of its attackers. Far from glorifying war, Key is praising God for defending "the land of the free and the home of the brave" with which He has blessed us. See the fourth verse:

O! thus be it ever, when freemen shall stand
Between their loved home and the war's desolation!
Blest with victory and peace, may the heav'n rescued land
Praise the Power that hath made and preserved us a nation.
Then conquer we must, when our cause it is just,
And this be our motto: 'In God is our trust.'
And the star-spangled banner in triumph shall wave
O'er the land of the free and the home of the brave!

In fact, it is from this poem in which are rooted not only our national anthem and the symbolism of Old Glory, but also our national motto: "In God We Trust." Far from placing love of country before love of God, the song glorifies God as "the Power that hath made and preserved" our nation, and who has blessed our nation with victory and peace.

If history has proven anything, it has proven that peace requires constant vigilance and struggle against those who would oppress. In the words of Thomas Jefferson, "The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is its natural manure." Even as peacemakers, war can be imposed upon us - and as reprehensible as we may find war to be, those who fight on our behalf do so with a just cause.

The Goshen statement further reads:

In addition, the national anthem is one way that is commonly understood to express an allegiance to the nation of one's citizenship. The college has shown that in the past in other ways: flying a flag on campus, praying for all men and women serving our country, welcoming military veterans as students and employees, annually celebrating the U.S. Constitution and encouraging voting.

It is counter-productive to pray for all men and women serving our country, while at the same time decrying any and all reference to the means they must emply to protect our country and our freedoms - including our freedom to worship God and to live as peacemakers.

Further, I have problem with this statement [emphasis added]:

Finally, the decision was made with the belief that "playing the anthem opens up new possibilities for members of the Goshen College community to publicly offer prophetic critique – if need be – as citizens in the loyal opposition on issues of deepest moral conviction, such as war, racism and human rights abuses," according to the statement by the President's Council announcing their decision.

While the intrinsic tie between the national anthem and war is understood, what, pray tell, does the national anthem have anything to do with racism and human rights abuses? What opportunity does the playing of the national anthem provide for prophetic critique in loyal opposition to racism and human rights abuses? This statement implies that the national anthem represents such matters - an implication that I find to be abhorrent.

The national anthem represents the best of America: a nation founded on the principle that our rights derive from our Creator, and that all men are created equal, and have equal right to life, liberty, and the pursuit of happiness. More American blood has been shed protecting and defending those rights - not only of Americans, but of all people the world over - than that of any other nation in history.

In closing, Mr. Brenneman, I applaud both your willingness to hold open dialogue on the matter of the playing of the national anthem, and your willingness to reconsider your stance. I urge you, however, to temper similar decisions in the future with the sober remembrance of the unique blessing of God that is our great nation, as well as the great sacrifices of our forefathers that have given us the freedoms we exercise - and often take for granted - today.

Life Expectancy And Quality of Health Care

Filed in Social IssuesTags: Constitutional Rights, ObamaCare

Often, proponents of nationalized health care will cite statistics indicating that the US lags with respect to life expectancy as compared with other industrialized nations that have some form of nationalized health care. Such comparisons are largely meaningless; life expectancy is not a meaningful metric of the quality of health care in a given country. As this white paper points out, in order to provide meaningful statistical analysis, a given metric must meet three criteria:

Any statistic that accurately measures health-care systems across nations must satisfy three criteria.  First, the statistic must assume actual interaction with the health care system.  Second, it must measure a phenomenon that the health care system can actually affect.  Finally, the statistic must be collected consistently across nations.

To summarize, a meaningful statistic must:

  1. Assume actual interaction with the health care system
  2. Measure a phenomenon that the health care system can actually affect
  3. Be collected consistently across nations

Life expectancy statistics do not satisfy this three-pronged requirement; in fact, it fails at least two out of three.

Assume Actual Interaction With the Health Care System

Life expectancy cannot be assumed to have actual interaction with the health care system.

Consider the 15 leading causes of death in the US (note: the order changes slightly from year-to-year, especially after the top 5 or so; however, the composition remains essentially the same):

  1. Heart Disease
  2. Cancer
  3. Stroke
  4. Chronic Lower Respiratory Disease
  5. Accidents
  6. Diabetes
  7. Alzheimer's Disease
  8. Influenza/Pneumonia
  9. Kidney Disease
  10. Septicemia
  11. Suicide
  12. Chronic Liver Disease/Cirrhosis
  13. Hypertension
  14. Parkinson's Disease
  15. Homicide

Note that Accidents (including motor vehicle accidents), Suicide, and Homicide cannot be assumed to have actual interaction with the health care system (with suicide being a possible exception). In fact, when adjusting for such non-health-related fatal injuries, the US ranks #1 in the world in Life Expectancy - indicating that, for those causes of death that can be assumed to have actual interaction with the health care system, the US health care system is the best in the world.

Measure a Phenomenon that the Health Care System Can Actually Affect

Given the leading causes of death, life expectancy does not measure phenomena that the US health care system can actually affect.

Consider the three leading causes of death: Heart Disease (30%), Cancer (23%), and Stroke (7%) cause 60% of all deaths in the US. These diseases are almost entirely caused by behavioral/lifestyle choices (diet, exercise, smoking, etc.). Including Chronic Lower Respiratory Disease (4%), which is caused almost entirely by smoking, and Diabetes (3%), which is caused almost entirely by diet, and fully 2/3 of all deaths in the US are caused by lifestyle and behavior choices over which the US health care system has no control or impact. Also including accidents (5%), the US health care system has no control over or impact on more than 70% of all deaths in the US.

And what impact do these behavioral/lifestyle choices have on life expectancy? According to one study, the listed criteria have the following (negative) impact on life expectancy:

  1. Smoking, Hypertension, High Cholesterol: 10 years
  2. Smoking: 6.3 years
  3. Employment Grade: 5.4 years
  4. Diabetes: 3.6 years
  5. Cholesterol: 1.9 years

Other studies have concluded that eradicating cancer deaths would increase life expectancy by 2.7 years, and eradicating risks from heart disease, stroke, and diabetes would increase life expectancy by 14 years.

Efficacy of US Health Care System: Cancer Survival

Further, to the extent that the US health care system may impact the leading causes of death, the US health care system proves its efficacy. Consider cancer: the US dominates Europe with respect to 5-year survival rates for overall cancer, as well as for specific cancers:
And apparently, the Europeans didn't include cancers discovered only upon death - which further skews the disparity. Clearly, to the extent that the health care system has an impact on diagnosis and treatment of cancer, the US health care system far surpasses the health care systems in Europe - and Canada, too, for that matter.

5-year Cancer Survival Rates, US vs. Europe

5-year Cancer Survival Rates, US vs. Europe

Recall, the argument in question here is whether or not life expectancy is a meaningful measurement of quality of health care. To preempt some arguments:

  1. It is a matter of efficacy, not of efficiency; thus, health care spending per capita or as a percentage of GDP is irrelevant. The point is that the US health care system is more efficacious with respect to diagnosis and treatment of cancer - a result that provides one argument to refute the assertion that life expectancy is a valid metric of quality of health care.
  2. Presumably, some of that increased spending in the US health care system goes to earlier and more frequent testing, which leads to commensurately earlier and more frequent diagnosis. Thus, the argument that the increased efficacy merely represents increased diagnosis rather than a quantifiable difference in quality of health care is tautological; as an argument, it is specious. With respect to cancer, timing of diagnosis is critical to successful treatment.

Meaningful Metrics of Life Expectancy

As has already been demonstrated, behavioral/lifestyle choices such as diet, exercise, and smoking are the primary contributors to the leading causes of death in the US. Other studies show a correlation between life expectancy and sanitation, clean water, income, and literacy rate. The CDC indicates that improvement in life expectancy in the 20th century can be partially attributed to vaccination, motor vehicle safety, safer workplaces, control of infectious diseases, decline in CHD deaths, safer/healthier foods, healthier mothers/pre-natal care, family planning, fluoridation of drinking water, reduction of tobacco. Yet other studies have identified marriage, religious involvement, optimism, and cleaner air as having positive impact on life expectancy.

Conclusion

Life expectancy is not a meaningful metric of quality of health care.

The health care system cannot be assumed to have an actual interaction with several of the leading causes of death in the US. More than 70% of the deaths in the US result from causes stemming from behavioral and lifestyle choices over which the health care system has no control or impact. For those causes of death upon which the health care system has some impact, the US health care system proves to be far more efficacious than the nationalized health care systems with which it is compared.

As my mother has always said: if it ain't broke, don't fix it - especially when the "fix" is government-controlled health care.

Daily Digest for March 9th

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Dying to Find an Emergency Room

Filed in Social IssuesTags: Constitutional Rights, ObamaCare

Reilly Anzovino

Recently, an 18-year-old Canadian girl died in an ambulance en-route to the hospital, due to injuries suffered in a car accident.

The ambulance ride apparently took approximately 30 minutes to reach the Welland hospital, during which time the ambulance was rumored to have run out of oxygen. Ms. Anzovino, desparately in need of a blood transfusion, died shortly before arrival, due to internal bleeding.

Anzovino Route

Distance of three hospitals from the site of Reilly Anzovino's fatal car accident (click for larger image)

Local authorities have opened an inquiry into the situation, because the girl died while en-route to the emergency room - an emergency room at a hospital two towns away, because the emergency rooms at the two nearest hospitals had been closed.

For reference, see the map to the right.

Local authorities are defending the decision to close the emergency departments at the two hospitals nearest the accident, even though they were warned in advance that just this type of occurrence would result from the decision. The Fort Erie hospital was closed in September 2009. A concerned, retired doctor ardently protested the decision, and months prior, in June 2009, gave the following warning [emphasis added]:

At this point it might be helpful to clarify the different categories of medical emergencies. Basically, an emergency is a threat to life or limb. There are ordinary everyday emergencies and then there are time-critical emergencies. Time-critical emergencies require rapid attention, else death is an imminent risk. Along with all other emergencies, the time-critical ones routinely came directly to the ER where they were promptly moved to the head of the line and dealt with, within minutes, without fanfare. Hence they were next to ‘invisible’ as a type. By downgrading and bypassing ERs, forcing these problems out onto the highway in an ambulance, the non-medical managers have ‘created’ a new and visible time-critical type of emergency. These new time-critical emergencies are really bureaucratic artifacts.

Specifically, people with gunshot wounds in vital areas, unconscious people with difficulty breathing, people in shock bleeding massively, people with drug overdoses, people in anaphylactic shock, people with head injuries, and many more (I cant list them all), are the ones that would ordinarily be those moved to the head of the ER line. If they cannot be put at the head of the line because they are on an ambulance that has bypassed the hospital and is out there somewhere on the highway on a trip to a place too far away, they may just die in that ambulance. And that is in spite of all the good intentions of fine paramedics, for there are still certain things that only a doctor at a hospital can do.

In a statement that perfectly epitomizes the potentially life-threatening bureaucracy of nationalized health care, in response to questioning regarding the impact of the emergency department closures on the death of Ms. Anzovino, the Minister of Health had this to say [emphasis added]:

We are building a health care system in Ontario where every person in Ontario has access to the very best possible care as close to home as possible. Having said that, the reality is that sometimes people will have to travel to another community to be able to access the highly specialized care that is part of today’s health care system. I think people understand that we cannot provide highly specialized care in every community hospital. When it comes to emergency care, it’s vitally important, absolutely essential, that people get to where that specialized care is available as quickly as possible.

And adding insult to inury, regarding the closing of the emergency departments at the two hospitals in question (one of which he promised in 2002 to keep open), the Minister also stated the following:

I am absolutely convinced that the people in Niagara have better quality health care now than they did before.

Tell that to the family of Reilly Anzovino.

Nevermind that the closures are causing a quantifiable delay in emergency care. According to this article, the ambulances, paramedics, and patients are delayed an average of eight hours daily, and hours of wait-time have increased from 130 to 240 hours per month at the Niagra Falls Hospital, due to the shortage of emergency departments in the months since the closures. And the closures were supposedly necessary due to budget shortages, despite a 42% spending increase on health care in the Niagra Region in the past six years.

Aside from the emergency department closures, the region has experienced increased emergency-room wait times, delay and cancellation of surgeries (including serious cancer surgeries), increased hospital-bed closures, and an above-average death rate.

And liberals in the U.S. still wonder why the vast majority of Americans oppose nationalized health care?

Special note: Anzovino's parents have established a memorial scholarship for paramedic students, in their daughter's name. Details here.

Daily Digest for March 2nd

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Chip Bennett Stopping at Starbucks in Brownsburg for a freshly brewed Verona (black) on my way to visit an old friend in Shelbyville. [chip_bennett].