Tag Archives: regulation

Security and Ebola

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The head of the CDC said Saturday that imposing a travel ban between the US and West African countries dealing with the Ebola virus could worsen the outbreak that has killed over 3,000 people in five countries.

“Though we might wish we can seal ourselves off from the world, there are Americans who have the right of return and many other people that have the right to enter this country,” Dr Thomas Frieden told a press conference. “We’re not going to be able to get to zero risk no matter what we do unless we control the outbreak in West Africa.”

This is carefully, cynically mendacious. “Americans who have the right of return” from western Africa are few, and they’re easily controlled at the point of departure until they can be shown to be Ebola-free. Those infected can be brought back under suitable controls, as has already been demonstrated.

Moreover, there are not at all very “many other people that have the right to enter this country;” that’s the point of border control: no nation has an obligation to let any non-citizen enter, except as that nation sees fit.

Frieden compounded his…error…with this:

We really need to be clear that we don’t inadvertently increase the risk to people in this country by making it harder for us to respond to the needs in those countries by making it harder to get assistance in and therefore those outbreaks would become worse, go on longer, and paradoxically, something that we did to try and protect ourselves might actually increase our risk.

This is more nonsense. A travel ban would be on travel from western Africa, not to it. Even were such a ban to include to western Africa, exceptions for humanitarian purposes are easily defined.

We don’t get to zero risk by restricting travel from enemy nations during time of war, either, until we control and terminate on our terms the war at its source; however, we routinely and effectively reduce risk by such restrictions. So it is here. Ebola isn’t a shooting war, but it is a war against a virus that has devastating effect wherever it invades. Travel restrictions would significantly reduce risk.

Hong Kong and Freedom

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The backdrop is this: in the last few days in the Hong Kong district of Mong Kok, there have been violent clashes between peaceful student and other protestors on the one hand and “locals” consisting, allegedly, of older residents and small business owners mixed with members of the triads on the other hand, this mix attacking the protesters. The latter are losing income from their prostitution and drug…enterprises…and they’re upset about it.

My own view is that the residents and business owners are being provoked and the triads winked at by the PRC in the hope of getting sufficient pretext to justify the government’s coming violent crackdown. That’s a separate question, though; what interests me here are the charges being leveled by the current Hong Kong administration against those who were arrested during those weekend clashes.

Hong Kong’s Secretary for Security, Lai Tung-kwok, said that among other charges, those arrested had been charged with unlawful assembly.

How is it possible to unlawfully assemble in a free society?

Another VA Problem

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This one, though, isn’t primarily the Veterans Affair’s doing.

Veterans at the Shreveport, LA, Veterans Administration hospital have been going without toothbrushes, toothpaste, pajamas, sheets, and blankets while department officials spend money on new Canadian-made furniture, televisions to run public service announcements and solar panels….

Some specifics:

According to the VA, the department spent $74,412 on 24 flat screen TVs for “patient/employee information”—one 50 inches wide and the others 42 inches. The furniture cost $134,082, and the solar project was approximately $3 million.

This is shameful, but this falls on Congress. Under Federal funding rules, capital equipment—the TVs, solar, etc—fall into one funding category, and supplies—toothbrushes and paste, blankets, etc—fall into a separate category. Under those same rules, the VA (and any other agency whose funding falls into different categories) cannot take funds from, say, capital equipment, and spend it on, say, supplies. It gets even more bureaucratic than that. Agencies can’t reallocate capital expenses from one capital item to another: the VA can’t, for instance, take some of those $3 million from solar and buy more TVs with it. Only Congress can authorize such reallocations.

No, Congress must answer for this misallocation. That it’s what the VA asked for in its budget request may be true, but Congress—that collection of our directly elected representatives—isn’t supposed to be a rubber stamp for every request for money that wanders by. It’s our money Congress is allocating, not Congress’ and not the VA’s.

It’s true enough that the VA could have—should have—gone to Congress and asked for a reallocation on recognition of the supply funding shortfall. That it seems not to have is an internal VA problem that supports my argument for disbanding the VA and using the budget to fund vouchers sent directly to our veterans.

There are other problems described at the Watchdog.org link above that are entirely within the VA’s ability to correct, but this one is not.

Obamacare and Health Care

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As Dr Scott Atlas, of Stanford University’s Hoover Institution, in a recent The Wall Street Journal op-ed noted,

  • Private company medical innovation R&D spending in the US the last three years averaged 2.1%, down from an average of 6% over the previous fifteen
  • Malaysia, Thailand, Singapore, South Korea, India, and the EU had greater R&D spending growth in the same period
  • The PRC had a growth rate of 22%

Certainly, those other polities, the EU excepted, were starting from a much smaller base, and so their growth rates will tend to be exaggerated. Certainly, too, our own historically weak economy is exacerbating the situation.

All that notwithstanding, though, this is a trend that is allowed to continue at the peril of our leadership in things medical. Obamacare, with its removal of the insurance aspect of health plans, actively hurts this. What plan can pay for the latest and best drugs or devices, and so drive innovation—or even those drugs or devices that are merely near the cutting edge, or that are middle tier—when those plans aren’t allowed to recoup their costs, except at generalized taxpayer expense?

There’s one aspect, though, that is a direct assault on medical innovation, and that’s Obamacare’s medical-device excise tax. This is a tax the takes 2.3% off the top—that is, before expenses and profit—of all medical device sales. This includes devices from heart pace makers to dialysis units to bandages sold in bulk to hospitals.

2.3% is no big deal?

  • Johnson & Johnson’s medical device and diagnostic sales were down 1.5% in the US, versus up 1.8% internationally, in the first half of 2014
  • General Electric reported that the US healthcare sales shrank by 2% in the second quarter, versus up 2% in Europe
  • Medtronic’s US sales for the 2014 fiscal year were up 1.7%, versus 5.9% internationally
  • Baxter reported US sales of medical products were down 15% for the quarter ended June 2014, versus up 8% globally
  • Fresenius’ US sales of dialysis products were down 1.2% in the first half of 2014, versus up 0.6% internationally

And (via the first link above)

Boston Scientific, Stryker, and Cook Medical have announced job cuts and plans to open new centers for R&D, manufacturing, and clinical trials overseas.

And so on.

Many attempts have been made to repeal this pernicious tax, the latest this past summer. The Democrat-controlled Senate refused to consider it. Again.

In Which another Federal Judge Gets it Right

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Recall Halbig v Sebelius, the case wherein plaintiffs objected to subsidies being paid to Obamacare plan purchasers when the those plans were bought through ObamaMart, the Federally run health plan exchange, instead of through State-run health plan exchanges. The text of the Obamacare law allows the latter and bars the former. The DC Circuit agreed with plaintiffs and struck down the subsidies. (The current status of that ruling is that it’s been stayed pending review of Halbig by the DC Circuit sitting en banc.)

US District Judge Ronald White, of the Eastern District of Oklahoma, has ruled on a similar case that came up in his district, a part of the 10th Circuit. I won’t go into the specifics of Pruitt v Burwell, White’s case; the cases are very similar, and the point I want to make here is slightly different, anyway. I will note that plaintiff Pruitt is Oklahoma Attorney General Scott Pruitt, and defendant Burwell is Sylvia Mathews Burwell, HHS Secretary (sitting in for Kathleen Sebelius under an arcane Federal rule that allows such things). I will note further that Treasury Secretary Jacob Lew also was a defendant in this case, and leave things there.

White ruled for the plaintiff, which means he also held that the subsidies paid to Obamacare plan purchasers who bought them through ObamaMart are illegal.

Here’s where things get interesting.

In his conclusion, White wrote [citations omitted, emphasis mine]

Other judges in similar litigation have cast the plaintiffs’ argument in apocalyptic language. The first sentence of Judge Edwards’ dissent in Halbig is as follows: “This case is about Appellants’ not-so-veiled attempt to gut the Patient Protection and Affordable Care Act (‘ACA’).” Concurring in King, Judge Davis states that “[appellants’ approach would effectively destroy the statute….” Further, “[w]hat [appellants] may not do is rely on our help to deny to millions of Americans desperately-needed health insurance….”

And

Of course, a proper legal decision is not a matter of the court “helping” one side or the other. A lawsuit challenging a federal regulation is a commonplace occurrence in this country, not an affront to judicial dignity. A higher-profile case results in greater scrutiny of the decision, which is understandable and appropriate. “[H]igh as those stakes are, the principle of legislative supremacy that guides us is higher still…. This limited role serves democratic interests by ensuring that policy is made by elected, politically accountable representatives, not by appointed life-tenured judges.”

And

This is a case of statutory interpretation. “The text is what it is, no matter which side benefits.” Such a case (even if affirmed on the inevitable appeal) does not “gut” or “destroy” anything. On the contrary, the court is upholding the Act as written. Congress is free to amend the ACA to provide for tax credits in both state and federal exchanges, if that is the legislative will. … “But in the last analysis, these always-fascinating policy discussions are beside the point. The role of this Court is to apply the statute as it is written – even if we think some other approach might ‘accor[d] with good policy.’“

Finally, quoting from a ruling by his own 10th Circuit appellate court,

In reviewing statutes, courts do not assume the language is imprecise…. Rather, we assume that in drafting legislation, Congress says what it means.

And that’s the deal. A law says what Congress—the People’s directly elected representatives—says it says. A judge, or any appellate court at any level of our judicial hierarchy, can only apply that law to the case before him. Most especially, he cannot rewrite the law or “creatively interpret” it into something more agreeable to his personal philosophy.

Oh, and just to saucer and blow the thing, White formally ruled pretty clearly:

The court holds that the IRS Rule [allowing those subsidies] is arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law, pursuant to 5 USC §706(2)(A), in excess of statutory jurisdiction, authority, or limitations, or short of statutory right, pursuant to 5 USC §706(2)(C), or otherwise is an invalid implementation of the ACA….

Judge White’s ruling can be seen here.

 

h/t Jonathan Keim of the National Review Online