Speaker Boehner’s lawsuit against President Obama will be accepted and heard by the Court

August 4th, 2014

Again, the “political experts” on cable TV continue to state that Speaker Boehner’s lawsuit against President Obama is a “stunt” and will not be accepted by the Court because it addresses a “political question.” But, the problem with this argument is that Speaker Boehner’s lawsuit will address a question of constitutional law, not a political question.

President Obama and his administration unilaterally delayed the clearly defined implementation date of the employer mandate of the Affordable Care Act [Obamacare].

A political question is an issue that is controlled by the decision-making authority of elected politicians that is outside of the domain of constitutional law. When a law is clear on when it must be executed, there is no decision to be made by the President concerning the time to implement. He must execute the law and implement it as the law requires. Article 2 of the U. S. Constitution directs the President to “take care that the laws be faithfully executed.” A failure to do so is a breach of the U. S. Constitution, the supreme law of the land.

The lawsuit will ask the Court to resolve a legal question, not a political one. Simply put, did President Obama violate the U. S. constitution by refusing to implement a law, which the President acknowledges was prescribed by Congress and is a valid and constitutional law?

Even if there was some political undertone to the issue, the Court must still address it as Chief Justice Burger confirmed in 1983:

 “It is correct that this controversy may, in a sense, be termed ‘political.’ But the presence of constitutional issues with significant political overtones does not automatically invoke [462 U.S. 919, 943] the political question doctrine. Resolution of litigation challenging the constitutional authority of one of the three branches cannot be evaded by courts because the issues have political implications in the sense urged by Congress. Marbury v. Madison, 1 Cranch 137 (1803), was also a ‘political’ case, involving as it did claims under a judicial commission alleged to have been duly signed by the President but not delivered. But ‘courts cannot reject as ‘no law suit’ a bona fide controversy as to whether some action denominated ‘political’ exceeds constitutional authority.’ Baker v. Carr, supra, at 217.” INS v. Chadra, 462 U.S. 919, 942-43 (1983).

Chief Justice Burger continued on to say:

“Chief Justice Marshall observed: ‘It is the peculiar province of the legislature to prescribe general rules for the government of society; the application of those rules to individuals in society would seem to be the duty of other departments.’ Fletcher v. Peck, 6 Cranch 87, 136 (1810). In my view, when Congress undertook to apply its rules to Chadha, it exceeded the scope of its constitutionally prescribed authority.’” INS v. Chadra at 967.

So, if Congress’s action against Chadra exceeded the scope of Congress’s constitutional authority and required the Court to rule against Congress, then so should the Court rule on the President’s refusal to exercise his constitutional duty to execute a law that was prescribed by Congress. Each is a constitutional question.

Congress represents the citizens of the United States. The U. S. Constitution gives Congress the duty to enact laws for the benefit of U. S. citizens. A President’s unilateral refusal to see that these enacted laws are faithfully executed disenfranchises the citizens of the United States from their Congressional representation. This is a clear violation of the U. S. Constitution.

Congress has a duty to move to correct this.

Recent Court decisions on Obamacare subsidies highlight political judicial activism

July 28th, 2014

Recently, two separate Federal Courts ruled on whether or not the payment of Obamacare health insurance tax credits [subsidies] are conditioned upon an individual purchasing health insurance through an Exchange run by a State rather than a Federally run exchange. One Court ruled it did matter whether or not the insurance policy was purchased on a State exchange rather than a Federal exchange. The other Court ruled that it did not matter. Two separate rulings on the same issue and same facts. Why did this difference occur?

The Court ruling that health insurance tax credits [subsidies] were only available to those who purchased their insurance from a State exchange was composed of two Judges appointed by Republican Presidents and one judge appointed by a Democratic President. The Democratic judge dissented against the ruling of the two Republican judges who favored the position that tax credits [subsidies] were only available for health insurance policies purchased on State exchanges.

The other Court consisted of three judges appointed by Democratic Presidents. They all ruled that it did not matter if an individual purchased insurance from a State or Federal exchange.

The decisions in each Court were strictly along party lines. It seems like political judicial activism.

Obamacare provides a tax credit [subsidy] for a qualified health plan offered in the individual market within a State which covers the taxpayer, the taxpayer’s spouse, or any dependent of the taxpayer … “that was enrolled in through an Exchange established by the State under [§] 1311 of the Patient Protection and Affordable Care Act.”

The verbiage of Obamacare is specific. It says that tax credits [subsidies] are only allowed for insurance policies purchased through State exchanges. It does not say they are available for policies purchased on Federal exchanges.

In January 2012, Jonathan Gruber, an MIT professor, who played a key role in helping write the Affordable Care Act [Obamacare] for Congress, publicly said:

“What’s important to remember politically about this is if you’re a state and you don’t set up an exchange, that means your citizens don’t get their tax credits—but your citizens still pay the taxes that support this bill.”

Professor Gruber publicly supported this logic during another speech on a separate occasion.

It seems that a major architect of Obamacare supported the specific verbiage of Obamacare which limits tax credits [subsidies] to policies purchased only on State exchanges.

A Court must ask itself whether or not the verbiage in the statute at issue unambiguously expresses the intent of Congress. The verbiage is not ambiguous. It is specific and does not say that tax credits [subsidies] are available to policies purchased through a Federal exchange. The statutory text is not ambiguous and that is all a Court has to determine.

If the statute’s text, at issue, was ambiguous, the Court could then look into legislative history to determine if the intent of Congress differed from the language of the statute. But, Professor Gruber’s statements support the specific verbiage of the statute at issue.

In the Halbig v. Burwell case, the Court, ruling in favor of the literal acceptance of the statute’s verbiage, correctly said:

“As the Supreme Court explained just this term, ‘an agency may not rewrite clear statutory terms to suit its own sense of how the statute should operate. UARG, 134 S. Ct. at 2446. And neither may we. ‘The role of th[e] [c]ourt is to apply the statute as it is written—even if we think some other approach might ‘accor[d] with good policy … [T]he fact that Congress might have acted with greater clarity or foresight does not give courts a carte blanche to redraft statutes in an effort to achieve that which Congress is perceived to have failed to do.’”

You have to ask yourself why four judges, with Democratic affiliations, ruled the other way?

Democrats in Congress state that they simply forgot to include Federal exchanges in the statute at issue and this should be overlooked. But, it was a statute written by a Democratic Congress and signed into law by a Democratic President. The text is unambiguous. Dr. Gruber’s statement supports that the intent of Congress was the same as the text of the statute. Now, the only recourse is to have the statute changed by Congress. The Courts must not change the statute.

This issue will be resolved when the King v. Burwell case [in which the Court changed the statute to include Federal exchanges] is reviewed by the U. S. Supreme Court.

Speaker Boehner’s lawsuit against President Obama is not a stunt nor is it an attack on Obamacare

July 15th, 2014

I hear “political experts” on cable TV deride Speaker Boehner’s future lawsuit against the President as a cheap stunt and as an attack on Obamacare.  Some in his administration say that the suit will “have no legs,” meaning it will get nowhere because the Speaker has no “standing” to bring a lawsuit.

They are wrong. The suit is not a stunt. Nor is it an attack on Obamacare.

The suit is a means of correcting a harm that has been done to Congress.  The U.S. Constitution created the “Separation of Powers” as a check and balance against an abuse of power by one branch of government.  Article 1 of the Constitution vests the power of creating laws solely with Congress. Article 2 of the Constitution directs the President to “take care that the laws be faithfully executed,” and “preserve and defend the Constitution.”

Congress makes law and the President must insure that law is faithfully executed. The President cannot ignore or change a law. If the President wants a law to change, he must ask Congress to change it.

If the President unilaterally and arbitrarily fails to execute a law or decides to change it, he has usurped the power of Congress. He has harmed the constitutionally granted power of Congress. Congress cannot allow this to occur. If they do, it will indicate that they agree to an unconstitutional erosion of Congressional power and an undermining of the “Separation of Powers.”

President Obama and his administration unilaterally delayed the implementation of the employer mandate of the Affordable Care Act [Obamacare]. The Obama administration did this without getting the agreement of Congress. The employer mandate, as part of Obamacare and to begin in 2014, requires certain employers with 50 or more “full-time equivalent” employees [working 30 or more hours a week] to be fined if they do not provide health care coverage for their employees.

Speaker Boehner’s suit uses this particular constitutional violation as a clear example of the President’s illegal encroachment on the constitutional power of Congress. The problem with the Obama administration’s action is that it cannot ignore a Bill that a Democratic Congress has passed and the Democratic President has signed into Law. That is a clear violation of Article I, Section 7 of the U. S. Constitution.

Speaker Boehner, representing the Congress, must show an injury caused by the President’s action that can be remedied by a favorable decision.  The President’s unconstitutional encroachment on the Congressional power to make law has injured Congress. If the President’s act is allowed to stand it could damage the future of constitutionally granted powers of Congress. A decision in Congress’s favor will remedy the injury to Congress. If the courts look at standing in this fashion, the suit will “have legs.”

President Obama has given Congress no other alternative then to move forward with the lawsuit.

The U.S. Veterans Administration must redefine its mission to that of serving the patient first.

June 10th, 2014

While on sentry duty, in a past war, an unknown soldier etched the following into a checkpoint wall:

“God and the soldier, all men adore in time of danger and not before. When the danger is passed and all things righted, God is forgotten, and the soldier slighted.”

This is what happened during and after the Vietnam War. No one wanted it to happen again, but it has.

The unprepared for demands on the Veterans Administration have insured that many returning soldiers will be and have been “slighted.”

The soldiers, men and women, have and will continue to return home. They have been touched by war both mentally and physically. Let’s make sure that they are not “slighted.” Let’s make sure they get the services and care they need to return to a productive civilian life.

A poem, “The Sacrifice”, by Nancy Meeks aptly describes the long-term effects of war on soldiers: 

“Will he ever find peace here on this earth?

Before death’s fingers encircle his throat

Or will peace remain just beyond his girth

Abandoning him eternally to a land remote

Will no one heed the gutteral cries

Of this bleeding soldier swaying in the wind

Seeing his own soul burning in demonic eyes

Fighting eternal battles which refuse to end.”

Let’s make sure that they find some peace and do not have to continue to fight “battles which refuse to end.”

The VA must redefine its mission as that of serving the patient first and not as serving the bureaucracy first.  

A new Secretary of Veterans Affairs will have to be able to roll up of his or her sleeves and be able to work down to the level of the weeds in order to insure that change will take effect. He or she will also need to have the authority to make changes without delay. This means that he or she must have the authority to terminate and replace bureaucrats.

Military code dictates that no soldier will ever be left behind. When you bring a soldier home and do not care for physical and mental injuries, he or she may be home, but they have been left behind. That is morally and ethically wrong.

A simple fix for the long U. S. Veterans Administration Primary Care wait times

May 21st, 2014

There has been a great deal of press about long primary care appointment wait times and the fact that the Veterans Administration [VA] has intentionally falsified records concerning these long wait times. The long primary care wait times are a result of the VA not having enough primary care physicians.

Why is there a lack of primary care physicians? Is it money? Probably not. The VA has sufficient funding to hire available primary care physicians. The VA is very picky about what primary care physicians it hires. It ignores many qualified physicians for many reasons that do not apply to their clinical skills. To make matters worse, the VA hiring and credentialing process is onerous and takes many months. Most primary care physicians cannot endure an extended credentialing period and opt out of taking a VA position. Because of this, the VA is dependent upon government contractors to supply primary care physicians to the VA on a temporary basis.

So, how can the VA fix this problem? It can:


Recruit and directly hire local retired primary care physicians to work for the VA clinics on a part-time basis. This would take the contractors out of the equation and allow the physicians to make more money. This would naturally result in greater retention of these physicians. The VA would be getting the benefit of primary care physicians with decades of experience. There is no substitute for experience in medicine. There are a lot of retired primary care physicians who would be eager to assist our veterans and insure that they get the care that is their right.


If you want to hire a primary care physician, you cannot expect he or she to wait four to eight months to be credentialed. They cannot start work until they are credentialed. So, make the credentialing process no more than four weeks. Get them working as quickly as possible. That means limiting the hoops you make the physicians jump through.

If the VA did these two things, it would be on the road to recovery and those in need would be insured of receiving the care they deserve.

Physician led Accountable Care Organizations will find long term success difficult to achieve

April 23rd, 2014

There is a basic truth in business management that responsibility requires the authority to match a specific level of responsibility. When there is a mismatch, the probability of management success is very low. Obamacare’s Accountable Care Organizations [ACO] have neglected to consider this truth. ACO’s are designed to impose the responsibility to reduce healthcare costs on the primary care physician, but do not give him the authority needed to execute this responsibility.

Primary care physician led Accountable Care Organizations [ACO] are risk based practice models that should not be attempted by those without prior risk experience, who cannot accept significant upfront costs or accept the possiblity of financial loss. The key to success in managing an ACO is the ability to have the authority to manage the risk necessary to control a patient’s healthcare costs. Without this authority, a primary care ACO cannot succeed on a long-term basis. You may be able to achieve some initial success by trimming low hanging fruit, but continued success will become more difficult to attain over time.

Today, physicians do not have the authority to effectively manage risk. If they did have this authority, there would be no such thing as “defensive medicine.” The fear of medical malpractice litigation is the primary cause of “defensive medicine.” Its impact severely limits the authority a physician has to control the cost of healthcare. Is a physician going to deny a service to a patient or family’s demands if there is the possibility that they may sue him or her or report them to a regulatory board for the refusal? Unlikely.  So, physicians do not have the actual authority needed to practice their profession with the actual authority they need to control healthcare costs.

This mismatch in responsibility and authority will result in an illusion of short-term success which will quickly be replaced by diminishing returns and ever increasing costs needed to manage the administrative systems required by an ACO.

Long term success with physician led ACO’s will be difficult to attain.

Is the American Medical Association ambivalent about Medical Malpractice Reform?

March 10th, 2014

Dr. Ezekiel Emanuel, an architect of Obamacare, recently reported in a Wall Street Journal essay that the American Medical Association’s [AMA] main priorities were concerned with payments for physicians.

Dr. Emanuel reported meeting with his brother, then the White House Chief of Staff, and informing him that he was working on a medical malpractice proposal as part of Obamacare. Dr. Emanuel reported that the White House Chief of Staff told him:

“We are not doing malpractice. Period. Every time the AMA comes in here, they don’t talk about malpractice.”

In referring to his brother’s further comment, Dr. Ezekiel Emanuel continued with:

“Their first, second and third priority, he [the White House Chief of Staff] said, was the formula used by Medicare to determine doctors’ pay.”

The White House Chief of Staff then stated:

“We don’t need to do malpractice for the doctors, and I am not alienating the president’s base for nothing.”

So, it was evident that there was no need to push forward with Medical Malpractice Reform because it was not needed to get the AMA’s support for Obamacare.

As a physician, I find this disconcerting. The AMA is supposed to represent the physicians of the United States. One of the greatest burdens that physicians bear is being subject to medical malpractice litigation. Medical malpractice litigation is the driving force behind the practice of defensive medicine. Defensive medicine is a major component of ever increasing healthcare costs in the United States. So, why would the AMA not aggressively pursue Medical Malpractice Reform when its support for Obamacare was being solicited by the White House? The AMA had the leverage to do it.

You cannot have effective healthcare reform without Medical Malpractice Reform.

I think the AMA has to explain to the physicians of America why it allowed the opportunity for Medical Malpractice Reform to slip through its fingers.

My solution for Medical Malpractice Reform can be found at: http://02a7734.netsolhost.com/blog1/2012/06/30/the-affordable-care-act-obamacare-cannot-control-healthcare-costs-without-a-new-approach-to-medical-malpractice-tort-reform/

Obamacare and Medicaid: Take the burden of Medicaid off the states

February 12th, 2014

Twenty states have opted out of expanding Medicaid as part of Obamacare.  Some of these states think that Obamacare should allow the federal government’s funding for Medicaid to be used so a Medicaid beneficiary [patient] can purchase private health insurance through the Obamacare exchanges. The federal government is allowing Arkansas to do this now and it appears to be working successfully. Unfortunately, the waiver given Arkansas to do this runs out at the end of June unless it is renewed.

 The federal government has promised the states to fund new Medicaid beneficiaries at 100% for the first three years of Obamacare and at 90% thereafter. So, why not use this money to allow a new Medicaid beneficiary to obtain private insurance and take the burden off the states.

 If this works, it can be extended to all Medicaid beneficiaries and do away with the need for the states to be in the healthcare delivery business. I am sure that all state governments would welcome being out of the Medicaid business. Particularly, as Medicaid is the largest component of state budgets.

This would be beneficial to the Medicaid patient and the physician. Obamacare has indicated that its private insurance physician networks are good, so Medicaid patients will have access to these physicians. Private insurance usually pays higher fees to physicians, so physicians will be financially motivated to take on new Medicaid patients. Private insurers have experience in managing healthcare costs and insuring that quality healthcare is delivered. They also have an excellent record in tracking down healthcare fraud and minimizing it. A record that government healthcare delivery does not have.

 It is time to take the burden of Medicaid healthcare delivery off the states.

Again: President Obama must focus on job creation in 2014

December 31st, 2013

The Government unemployment figures severely understate the actual level of unemployment in the United States. Many individuals have been either unemployed or under-employed for years. It is time to get America back to work. It is time for the Government to stop believing that its “low ball” unemployment figures correctly  state the level of pain those in the labor force are feeling. A realistic estimate of the percent of the population unemployed is greater than 20 percent. Not the 7 percent figure that the Government states.

The Government has to be more empathetic to the plight of the unemployed or the fabric of American society will unravel.

One way to create jobs is to significantly reduce corporate tax rates as an incentive for Corporate America to create jobs. This will work.

Jobs for America should be President Obama’s top priority for 2014.




Obamacare betrayal: many citizens will not be able to keep their Doctor

November 4th, 2013

President Obama, in selling his healthcare program to America, said:

            “If you like your doctor, you will be able to keep your doctor, period.”

President Obama repeated this statement many times when he knew that it was not the truth. He knew it was important that America believe that they could keep their personal doctor if his new healthcare plan was to be approved.

President Obama was aware that his healthcare plan required the creation of limited physician networks by insurers and Obamacare’s Accountable Care Organizations. These limited networks of physicians would be the only doctors that an insurer, under Obamacare, would allow an insured to see. If the insured wanted to see a non-network doctor, the insured would have to pay either a larger percent of the doctor visit cost or the entire doctor visit cost.

The creation of limited doctor networks will result in many doctors being excluded from an insured’s plan. If your doctor is excluded, you cannot keep him unless you decide to pay him yourself. These limited networks will have a dramatic impact on the availability of primary care doctors. So, if you like your family doctor, you will probably not be able to keep him.

I have practiced in areas in which I have personally observed the effect of limited doctor networks and their impact on primary care doctors. Doctors excluded from the networks will have fewer patients available to them and will have difficulty staying in business. If they are not allowed to participate in the networks the patients will not be available to them.

The ultimate betrayal of a government is to knowingly deceive its citizens.  The citizens expect and demand that their government will tell them the truth. This is based on well-founded standards of right and wrong that prescribe what humans ought to do, in terms of rights, obligations, benefits to society, fairness and specific values.

1.      The Common Good

The ethicist John Rawls has defined the common good as “certain general conditions that are … equally to everyone’s advantage.” The common good insures that the social systems and institutions, which we depend upon, must operate in a manner that benefits all people. An example of a particular common good is a just and fair government that does not deceive its citizens. The common good does not just happen. It must be attained through cooperative effort. 

The common good is served when a government does not deceive its citizens in order to promote its leader’s own agenda. Demanding that others bear the burden for this deceit does not serve the common good of either the government or its citizens.

2.      Rights

A right is a justified claim on others. The justification of a claim is dependent on some standard acknowledged and accepted not just by the claimant, but also society in general.

U. S. citizens have a right to expect that their elected officials shall function in a manner that will allow citizens to accurately understand the impact of legislative changes. The social costs of abandoning this right would result in damage to the institutions and individuals honored with preserving this right [the executive branch  and members of Congress].

3.      Utilitarian

The utilitarian approach answers the question of what option will produce the most good and do the least harm. Utilitarianism is a moral principle that holds that the morally right course of action in any situation is the one that produces the greatest balance of benefits over harms for everyone affected.

Deceiving the public never produces more good than harm. Defending the deceit by saying that those impacted are only a minor percentage of the population does even more harm. This behavior shows a disconnect from the populace and an unflattering high degree of hubris. Therefore, the utilitarian approach would be to tell the truth and allow the citizens to make up their minds based upon accurate facts.

4.      Justice and Fairness

No idea in Western civilization has been more consistently linked to ethics and morality than the idea of justice. Justice means giving each individual what he or she deserves or, in more traditional terms, giving each person his or her due. Justice and fairness are closely related terms that are often today used interchangeably. While justice usually has been used to reference a standard of rightness, fairness often has been used with regard to an ability to judge without reference to one’s feelings or interests. Fairness also refers to the ability to make judgments that are not overly general but are concrete and specific to a particular case. 

Again, every individual expects that their government leaders shall tell them the truth so they have the ability to judge correctly. It was unfair and unjust to promise that Obamacare would not interfere with the Doctor/Patient relationship and then knowingly deliver a healthcare plan that will insure that many citizens cannot keep seeing their long-time Doctors.