You see, in the space of almost eight months, Kenya Wheeler will have almost exhausted his entire lifetime cap for treatment under his student health insurance plan. The cap: $400,000. That's close to half a million dollars in only eight months--and that's all he will ever receive. His standard of care is evaluated by a dollar figure, not by whether or not his treatment is completed or successful. As of this writing, he has $40,000 remaining in his account: enough to cover five more days in the hospital. That's an average of $8,000 per day.The Affordable Care Act will remove lifetime benefit caps from student health plans. But if it's repealed or struck down, stories like this will remain far too common.
For more information on Kenya's journey, click here.
On Friday morning, Kenya will check-in for his last scheduled round of chemotherapy. This intensive treatment will require an 18-25 day hospital stay. But his lifetime health insurance fund caps out on Day Five.
In a morbid way, the impact of the "lifetime" insurance cap provisions of the Affordable Care Act provide a new spin to the word "lifetime" when dealing with patients like Kenya, who without treatment, could very well find the end of treatment means the end of their lives. For the Supreme Court to keep this law alive would quite literally mean that many sick Americans could live, among them, Kenya Wheeler.
Help out Kenya here. And if you're so inclined, check out my website and help me cover the cost of chemo and related health care expenses here.
Some twenty years ago, the UN published a report at the Rio Earth Summit on sustainable development called Agenda 21. It provided a vague roadmap on how to move towards sustainability. Many years later, the radical right is freaking out, believing that sustainability is a codeword for SOCIALISM!:
While a recent New York Times article described anti-Agenda 21 activism as emerging roughly two years ago, the roots of the Agenda 21 conspiracy theory go back at least a decade. As early as 2002 Dr. Stanley Monteith, a Santa Cruz County, Calif., physician, who runs the conservative Christian website Radio Liberty, hosted a series of lectures on the dangers of Agenda 21. An insurance salesperson named Joan Peros gave a nearly hour-long lecture on the perils of Agenda 21, warning, it “doesn’t matter which party is in power or control … some of our leaders totally understand and embrace the ushering in of a one-world order.”As I've noted before, the great irony here is that these people choose to ignore the fact that the suburbanization of America was the result of government actions and a variety of incentives that distorted the housing and transportation markets; the free market would have never allowed for sprawl. Yet it is this government-created “suburban way of life” that these folks are valiantly trying to protect.
The paranoia behind such fears was expressed by another guest lecturer on Monteith’s program, Jean Soderman, a self-professed former participant in Local Agenda 21 planning in Santa Cruz. When asked whether Agenda 21 would be worse than what Hitler did, she responded, “Yes. We are controlled by computers now and it has been said … that they have been trying this for two times already … first with Hitler, and it is going to be much, much worse.”
Michael Shaw, also from Santa Cruz and founder of the anti-Agenda 21 website Freedom Advocates, gave a lecture in 2006 at the Eagle Forum Conference in Santa Rosa, titled “Speaking of Agenda 21.” Shaw spoke about the loss of property rights through the ruse of “sustainable development,” and described Agenda 21 as “political globalists … moving toward a form of … state capitalism. It is an assault on land and that is where we have to stand up and protect our land.”
The anti-Agenda 21 critique entered the conservative mainstream in an October 2009 article in the American Thinker. Scott Strzelcky and Richard Rothschild charged that, through the implementation of “smart growth” initiatives, Agenda 21 would force people to relocate into highly urbanized areas — what anti-Agenda 21 activists commonly describe as “stack ‘em and pack ‘em” housing, evoking the image of Soviet-era East Berlin apartments. According to Strzelcky and Rothschild, Agenda 21 will ultimately lead to the demise of the suburban way of life.
What's particularly distressing is that these fringe thinkers are now wielding influence over the mainstream of the GOP. To wit:
The RNC has been infected:
In a resolution approved in January, the Republican National Committee characterized the United Nations’ Agenda 21 as “destructive strategies for sustainable development.” Included in this resolution was the RNC’s condemnation of the “insidious nature” of Agenda 21, and the recommendation by the RNC to adopt this resolution at the 2012 RNC Convention.The Tennessee House has bought in to the nonsense:
Tennessee lawmakers passed a resolution Thursday condemning a United Nations environmental plan as a “destructive and insidious” effort to advance a communist agenda through the guise of community planning.Participants at public hearings in Virginia are equating a comprehensive plan with an attack on property rights:
The state House of Representatives voted 72-23 in favor of House Joint Resolution 587, which denounces the nonbinding Agenda 21 plan adopted by a United Nations environmental conference two decades ago.
Citizen input will be instrumental in a rewritten comprehensive plan. At a public hearing in January, nearly every speaker was in opposition of the plan.And it's not just the comprehensive plan; these folks see government intrusion everywhere:
A tea party-like group called the Chester Patriots led the opposition charge, often equating Chesterfield's plan with a United Nations plan known as Agenda 21, which sets options for sustainable development. The group said the plan would trample their property rights.
Daren Gardner, who has lived in Chesterfield for more than 50 years, was one of the citizens to speak out against the proposed plan.
"The plan that was set forth, was pretty much a cookie-cutter copy of Agenda 21, which the U.N. has tried to impose on all the communities and localities, not only in our nation but the world," he said. "It's imposing on property rights."
Donna Holt, director of the Virginia Campaign for Liberty, a tea party group, said she and other Agenders helped defeat Chesterfield's proposed comprehensive growth plan.A US Senate candidate in Texas is buying into the nonsense, as well:
Language in the plan about land and energy conservation, among other things, represented "a blueprint of what I had read coming out of Agenda 21," Holt said.
Another of the Agenders' concerns is "smart meters" in homes — computerized devices that can be read from remote locations. Smart meters "are, by definition, surveillance devices," says a posting on the website Virginians Against UN Agenda 21.
At Dominion Virginia Power, which is just beginning to test smart meters, customers' privacy is a "top priority," said spokesman David Botkins. "I haven't even heard of Agenda 21."
Virginia's Middle Peninsula is a hotbed of Agenda 21 activism, said Lewis L. Lawrence, acting executive director of the region's planning district commission.
Some people see references to zoning, comprehensive plans, conservation easements, bike paths, sustainability or smart growth and immediately assert that Agenda 21 is the force behind them, Lawrence said.
"It makes it really hard to have meaningful discussions about what you want to do with your community when 95 percent of the professional language is off-limits because of the supposed nexus to Agenda 21."
Called Agenda 21, it's described by U.S. Senate candidate Ted Cruz as a "globalist plan that tries to subvert the U.S. Constitution and the liberties we all cherish as Americans."What's especially troubling to me, as one who studies sustainability and believes in inclusive, bottom-up governance, is how to push forward a sustainability agenda in such a politicized environment. Limiting our impact on the Earth shouldn't be a partisan matter, yet it has become one. And this most certainly doesn't bode well for actually making that sustainability transition.
"Agenda 21," Cruz says on his campaign website, "is wrong and must be stopped."
Agenda 21 has no direct bearing on such local and state measures to control sprawl and conserve energy, yet activists and politicians with ties to the tea party see such actions as part of a U.N.-led conspiracy. Allegedly concocted by philanthropist George Soros and implemented by urban planning groups and bureaucrats, the U.N. resolution, in their view, is an effort to deny property rights and force Americans to cluster like cooped chickens in ever-denser cities.
The weather is weirding:
As the planet warms, many scientists say, more energy and water vapor are entering the atmosphere and driving weather systems. “The reason you have a clothes dryer that heats the air is that warm air can evaporate water more easily,” said Thomas C. Peterson, a researcher with the National Oceanic and Atmospheric Administration.
A report released on Wednesday by the Intergovernmental Panel on Climate Change, the United Nations body that issues periodic updates on climate science, confirmed that a strong body of evidence links global warming to an increase in heat waves, a rise in episodes of heavy rainfall and other precipitation, and more frequent coastal flooding.
“A changing climate leads to changes in the frequency, intensity, spatial extent, duration and timing of extreme weather and climate events, and can result in unprecedented extreme weather and climate events,” the report found.
Some of the documented imbalances in the climate have certainly become remarkable.
United States government scientists recently reported, for instance, that February was the 324th consecutive month in which global temperatures exceeded their long-term average for a given month; the last month with below-average temperatures was February 1985. In the United States, many more record highs are being set at weather stations than record lows, a bellwether indicator of a warming climate.
So far this year, the United States has set 17 new daily highs for every new daily low, according to an analysis performed for The New York Times by Climate Central, a research group in New Jersey. Last year, despite a chilly winter, the country set nearly three new highs for every low, the analysis found.
Because greenhouse gases are causing the Arctic to warm more rapidly than the rest of the planet, the sea ice cap has shrunk about 40 percent since the early 1980s. That means an area of the Arctic Ocean the size of Europe has become dark, open water in the summer instead of reflective ice, absorbing extra heat and then releasing it to the atmosphere in the fall and early winter.
Dr. Francis, of Rutgers, has presented evidence that this is affecting the jet stream, the huge river of air that circles the Northern Hemisphere in a loopy, meandering fashion. Her research suggests that the declining temperature contrast between the Arctic and the middle latitudes is causing kinks in the jet stream to move from west to east more slowly than before, and that those kinks have everything to do with the weather in a particular spot.
“This means that whatever weather you have today — be it wet, hot, dry or snowy — is more likely to last longer than it used to,” said Dr. Francis, who published a major paper on her theory a few weeks ago.
“If conditions hang around long enough, the chances increase for an extreme heat wave, drought or cold spell to occur,” she said, but the weather can change rapidly once the kink in the jet stream moves along.
The piece rightly notes that this is still a contentious topic among scientists and not everyone agrees. Nevertheless, there's certainly cause for concern and there's more than enough evidence for other weather-related impacts of climate change. There's a reason some people are advocating for using the term “global weirding” in place of global warming...
Whether or not Martin was a good kid or a bad kid, an angel or a thug, a normal teenager or a dangerous deviant, he had every right to walk in the streets of his soon-to-be-stepmother's neighborhood without fear of being shot. A criminal record, a manner of dress, a height: none of these make the shooting of an unarmed, law-abiding teenager justified. And yet here we are, forced to defend Martin's honor, as though if he had been a gangster there'd be nothing to say. As though the minute a black man is anything but a choir boy it's okay to shoot him in the street.
We should have known this was coming. Maybe not for most of last week, when for once everyone seemed to be on the same page. But we had to have known it would get here on Friday morning, when Fox News symbolically broke its silence with a Geraldo Rivera segment urging young men of color to stop wearing hoodies — so as not to get shot — the hilariously inept logic of which failed to mask its true intent: to shift the blame for Martin's death back on to Martin.
A few hours later, the president stood in front of journalists in the Rose Garden and, taking a question about Trayvon Martin, said "If I had a son, he'd look like Trayvon." That was it. Rivera had given the horseshit its window, and Obama had given it its direction. What jacked-up right blogger could stop himself then? Who could resist calling the president's son a thug?
Balkinization has had some absolutely great coverage of the Affordable Care Act:
- Marty Lederman lays out the government's argument.
- Lederman on why it's not just about the mandate.
- Lederman on the absurdity of the Medicaid and severability challenge.
- You want a limiting principle? Jack Balkin offers three obvious ones.
- Sandy Levinson chimes in on limiting principles, as well.
- Neil Siegel offers five potential limiting principles.
- After hearing the arguments, Lederman is astonished that we're even talking about the Medicaid challenge as if it's a serious argument.
- Mark Tushnet discusses the economic ignorance on display during the hearings.
- Brian Tamanaha on the unaccountability of SCOTUS.
- Sandy Levinson on the legitimacy of the Court.
- David Gans on severability.
The federal spending issue turns on the expansion of Medicaid. Under the ACA, millions of the working poor – people with incomes up to 133 percent of the federal poverty level – are eligible for Medicaid. From 2014 to 2016, the federal government will pay 100 percent of the costs. Then its share decreases, to 90 percent after 2020. Because the ACA also gives states assistance with their new administrative costs, overall state spending will actually be lowered.And Krugman discusses the horribly disingenuous (and overwhelmingly political) economic arguments being made against the ACA:
Twenty-six states are claiming that this conditional spending unconstitutionally coerces them, because they cannot realistically forgo the money, and because if they refuse to expand their rolls, they might lose every cent of Medicaid money. But let’s be clear: This is not about the states wanting to conserve their own money. It is about the states refusing to spend federal money, to help people that they do not want to help. (Paul Clement, the attorney for the challenging states, declared that his argument would not change if the federal government permanently paid 100 percent of the costs.)
As a legal matter, this is the craziest argument yet, which is why it was rejected by every lower court that heard it. It implies that, when states get federal money, they have a right to spend it any way they want, with no federal conditions. It means that Medicaid itself has always been unconstitutional, along with federal unemployment benefits, highway funds, education funds and many other programs. Justice Breyer repeatedly pointed out that the provision in the Medicaid statute that is being challenged has been there since 1965.
Yet the conservative justices took it remarkably seriously. Because the federal government “has the authority under this provision to say you lose everything,” Chief Justice John Roberts declared, “it seems to be a significant intrusion on the sovereign interests of the state.” Justice Anthony Kennedy said, “There’s no realistic choice.” Justice Scalia offered the astounding claim that “if you predict … that 100 percent of the States will accept it, that sounds like coercion.” If this is right, then if I offer 10 people triple their salaries to come work for me, and I can confidently predict that they will all accept, I am coercing them. Alito endorsed the same idea, and also thought it relevant that the money “is going to have to come out of the same taxpayers that the States have to tax to get their money.” That would mean that the federal tax code is itself an invasion of states’ rights. How long must we keep a straight face when presented with this stuff?
There was a legitimate basis for the Court to consider many of the issues raised by the healthcare law, since they had divided the lower federal courts and the law needed clarification. But the Medicaid claim created no division: Every lower court agreed that it was without merit. (Just how meritless is explained at length in a characteristically lucid piece by Marty Lederman.) Even the most preposterous arguments are magically elevated to respectability if they are arrayed against the ACA.
The Medicaid issue also calls attention to the political decisions that were made here – the decision of all those Republican officeholders to join this litigation. Why would you work so hard to deny decent medical care to working poor people in your own state? Political warfare evidently produces collateral damage. Obama owns the healthcare bill, so anything that can gum up its works is a Republican victory – and all 26 of the state challengers, attorney generals and governors, are Republicans. But all those working poor people are not Democratic Party operatives. They are ordinary folk trying to get by. The decision to pursue this litigation displays a calculated viciousness and cruelty that we have not seen in American politics in some time. It is like getting back at my enemy by hurting his children or his pets.
Let’s start with the already famous exchange in which Justice Antonin Scalia compared the purchase of health insurance to the purchase of broccoli, with the implication that if the government can compel you to do the former, it can also compel you to do the latter. That comparison horrified health care experts all across America because health insurance is nothing like broccoli.Noah Feldman discusses Kennedy's take on dignity, freedom, and broccoli:
Why? When people choose not to buy broccoli, they don’t make broccoli unavailable to those who want it. But when people don’t buy health insurance until they get sick — which is what happens in the absence of a mandate — the resulting worsening of the risk pool makes insurance more expensive, and often unaffordable, for those who remain. As a result, unregulated health insurance basically doesn’t work, and never has.
There are at least two ways to address this reality — which is, by the way, very much an issue involving interstate commerce, and hence a valid federal concern. One is to tax everyone — healthy and sick alike — and use the money raised to provide health coverage. That’s what Medicare and Medicaid do. The other is to require that everyone buy insurance, while aiding those for whom this is a financial hardship. Are these fundamentally different approaches? Is requiring that people pay a tax that finances health coverage O.K., while requiring that they purchase insurance is unconstitutional?
Indeed, conservatives used to like the idea of required purchases as an alternative to taxes, which is why the idea for the mandate originally came not from liberals but from the ultra-conservative Heritage Foundation. (By the way, another pet conservative project — private accounts to replace Social Security — relies on, yes, mandatory contributions from individuals.)
I was struck, in particular, by the argument over whether requiring that state governments participate in an expansion of Medicaid — an expansion, by the way, for which they would foot only a small fraction of the bill — constituted unacceptable “coercion.” One would have thought that this claim was self-evidently absurd. After all, states are free to opt out of Medicaid if they choose; Medicaid’s “coercive” power comes only from the fact that the federal government provides aid to states that are willing to follow the program’s guidelines. If you offer to give me a lot of money, but only if I perform certain tasks, is that servitude?
Yet several of the conservative justices seemed to defend the proposition that a federally funded expansion of a program in which states choose to participate because they receive federal aid represents an abuse of power, merely because states have become dependent on that aid. Justice Sonia Sotomayor seemed boggled by this claim: “We’re going to say to the federal government, the bigger the problem, the less your powers are. Because once you give that much money, you can’t structure the program the way you want.” And she was right: It’s a claim that makes no sense — not unless your goal is to kill health reform using any argument at hand.
Kennedy was expressing the worry that penalizing someone for failing to do something infringes on liberty in a different way from putting conditions on the things a citizen does. Individual liberty, along with dignity, is one of Kennedy’s constitutional touchstones. If he believes that the health-care law is a new kind of infringement on individual liberty, Kennedy will not uphold it.More on limiting principles: if Kennedy and Roberts are so concerned, they can write one themselves.
In fact, Kennedy asked Verrilli, “When you are changing the relation of the individual to the government … do you not have a heavy burden of justification to show authorization under the Constitution?” This query was especially chilling for proponents of the law. Kennedy was rehearsing a route he could use to strike it down. He might say that a new kind of infringement on liberty must be justified by a compelling government reason -- one that Verrilli clearly did not provide.
What, Kennedy wanted to know, is the limiting principle on the government’s ability to regulate? There is a good, sharp answer to this wholly reasonable question. And although Verrilli did not quite manage to make it, he may be able to do so on Wednesday, when the court discusses whether the mandatory coverage provision can be severed from the rest of the law if, indeed, the court wants to strike the mandate down.
The answer is that health care insurance is different because if the healthy people fail to get themselves coverage, it becomes extremely difficult -- under some conditions, impossible -- for the insurance market to operate. That is, as the healthiest people leave the pool, the market for health insurance starts to unravel, as people who would buy it at a price where the insurance companies would be willing to provide it will be unable to do so.
In other words, when it comes to the strange and unusual case of health insurance, inaction causes the whole market to break down. By not buying health insurance, the healthiest person is depriving everyone of a public good. By sitting on their hands -- and acting rationally -- people who do not purchase insurance are unintentionally causing the market to fail.
The limiting principle that Kennedy was seeking is therefore readily at hand. The government can penalize inaction only when that inaction deprives everyone else of a public good. That happens very rarely in the real world. There must be an asymmetry of information about the relevant facts governing insurance -- like the difference between my knowledge of how healthy I am and the insurance company’s ability to suss it out. And the market must be one in which that information asymmetry leads to adverse selection.
Kennedy was therefore correct when he said, in his last comment, “In the insurance and health-care world … the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries.”
Broccoli, by contrast, presents no problems of adverse selection. Scalia’s intuition is that the federal government may not go around ordering people to buy things that they do not wish to buy. That intuition is plausible. The Constitution gives Congress the power to regulate interstate commerce, which has been held to extend to essentially all economic activity. Inaction is ordinarily not economic activity -- not unless perfectly reasonable inaction throws an entire market into dysfunction.
[I]naction is different in the health insurance context. If I choose not to buy broccoli, others can still buy it at a market price. If I choose not to buy health insurance, universal coverage becomes impossible. That is a fundamental difference. The solicitor general should say so. If he does, Justice Kennedy should listen.
Reagan's Solicitor General, Charles Fried, has no need for a limiting principle; there's no question in his mind of the constitutionality of the ACA:
[T]he power of Congress is to regulate interstate commerce. Is health care commerce among the states? Nobody except maybe Clarence Thomas doubts that. So health care is interstate commerce. Is this a regulation of it? Yes. End of story. Here’s another thing Marshall said. To regulate is “to make the rule for.” Does this make a rule for commerce? Yes!
And David Frum offers the most pithy take-down of the activity/inactivity distinction I've seen so far, as it applies to health care:
[I]t's absurd to describe as "inactivity" the actual experience of most uninsured Americans: desperately seeking an affordable policy and poignantly discovering that they cannot find it.And, of course, the finest commentary comes from The Onion.
Since we refuse to pay the true cost of fossil fuels, the recent oil and gas boom in the US is killing the chances of success for clean energy.
Agriculture destroys the Everglades, taxpayers on the hook for clean-up.
It looks like part of what's killing bees are pesticides.
Climate activist/hero Tim DeChristopher has been put into isolation. It's no surprise that when corporations engage in the same federal felony as DeChristopher, there's no criminal prosecution.
Andy Revkin, in his love for all things middle ground, praises the notion of moving “away from “solving the climate crisis” toward managing climate risk.” Which is, of course, a recipe for not actually taking the effort to reduce emissions, no matter what Revkin claims. And that is most definitely not a reasonable way to manage climate risks.
Fighting fracking through historical preservation.
Photos of fracking and its impact on water supplies in Pennsylvania.
Trade-offs between fracking and carbon storage?
Government policies can be effective in curbing deforestation.
Food security, climate change, and agricultural intensification.
The Colorectal Cancer Legislation Report Card for 2012 is here.
Development economics is a complete joke if some of the biggest names in the field like Bill Easterly are shocked and dismayed by the nomination of Jim Kim to lead the World Band on the grounds that he's supposedly anti-growth and thinks that prioritizing corporate profits over people may not actually lift the poor out of poverty. Fortunately, there are some sane economists out there who applaud the pick — quite likely the best move Obama has made as president.
The GOP's War On Women goes even deeper into Batshitcrazyville, as a Republican lawmaker encourages women to stay in abusive relationships.
But some women continue to fawn.
Seriously, conservative ladies love Rick Santorum.
“Drones will not make war easier, or more humane, or more accurate, or more successful. They will, however, make it last longer.”
Giving money to cops involved in shootings probably isn't a good idea.
Islamophobia and the GOP.
Political polarization and changing accents.
The GOP in Tennessee is going out of its way to prove its xenophobic bona fides.
The Republican Party is nothing more than a collection of corporate interests.
Law schools keep on lying about their employment rates. And ASU is one of the biggest liars.
Václav Havel: an appreciation of his writing.
Understanding the brain through split-brain patients.
If Kentucky wins it all, college basketball will change for the worse. Granted, I don't actually buy this argument; college basketball has already embraced the one-and-done era. Kentucky's victory won't change the rush towards recruiting the top players who will leave after one year. (That said, the one silver lining to Kentucky's nearly-inevitable victory is that we can all take joy in the fact that Calipari will likely see his Final Four appearance stripped from him yet again.)
Bionic limbs? Ain't happening anytime soon.
If Google is resorting to trickey and under-handed tactics, should we trust them?
How to cite a Tweet?
What do our kitchens say about us?
Living life without regrets.
Crazy birds on our streets.
John Darnielle meets the Anonymous 4.
It's Nick Cave Week over at the music blog.
Kayhan Kalhor performs a Tiny Desk Concert at NPR: