Monthly Archives: March 2017

Trumpcare

This – that is, what we are about to suggest after a little self-indulgent blather – is an old idea of ours.  Very old.  But occasions for revisiting it keep arising through no fault of ours. Just the nature of things.

At one point we pointed out on this blog (albeit in a much different context) that while the United States has a long tradition of individualism and libertarianism, it also has a counter-tradition – that is, of more recent vintage yet old and entrenched enough to have also earned the appellation “tradition” – that the federal government should use its power of commandeering resources to do great things both domestically and internationally, and speaking domestically first and foremost of these is to insure the health of its citizens:

There are sharply differing views on the nature and role of government.  Some believe that the government is a positive force for good, that it provides safety and security – and some think even material prosperity – to its citizens.  There are others who are deeply skeptical of government and regard it as a danger to freedom and balk at the notion that it can provide prosperity, indeed believing that government by and large impoverishes its citizens.  And there are many nuanced positions in between.

The older American tradition is firmly in the latter camp.  But like many traditions, it has been eroded over time.  Whereas previously one might have argued that the government favorable view was “un-American”, that’s a difficult case to make now.  The government favorable position has itself established a claim to tradition in American political discourse.

We don’t agree with the counter-tradition around here, but we acknowledge political reality when we see it.  Since FDR at least, federal government involvement in “health care” has been a given, and its dominance of the field has been, well, inevitable.

So a long time ago we figured that since the federal government was inevitably going to dominate the health care field, it might as well get into health care directly – that is, build and operate hospitals, clinics, “urgent care” facilities and so on; hire doctors, nurses, orderlies and so on, and people who can’t afford their own health care can use federal facilities for free.

Then all the other “programs” – medicare, medicaid, Obamacare, etc. – can be abolished. They’re all unsustainable anyway, so why not?

Don’t agree with that last part?  Don’t be silly.  It’s arithmetic.  The federal government is spending about $1 trillion on “heath care” every year.  It is doing so in a mish-mash, haphazard, infinitely complex fashion where it mixes together with state and local governments, private insurers, private medical service providers themselves and who knows what else in a never ending upward spiral of increasing costs, increasing involvement, increasing meddling.  It’s the worst case scenario for federal government involvement in anything.

By contrast, directly doing a large project on a huge scale in a very standardized way is what the federal government actually does fairly well, as when it conducts full scale war, putting millions in “uniform” (and that word applies for a reason), spitting out copy after copy of aircraft, tanks, ships, ammunition, K-rations and whatnot.

Put another way, it might cost Uncle Sam $ 1 billion to build one hospital but he can build 100 for $20 billion and 200 for $25 billion, which is not even intended to be accurate, just painting with a very broad brush to give you the idea.  Very illustration.  Way succinct.

And as the new structures and systems come online you phase out medicaid, medicare, etc.  What’s not to like?

And we should think this idea would have special appeal to President Trump, who let’s face it likes to solve problems by building things – like walls.  And then putting his name on them.

Anyhow.  We don’t see any other solution to this particular problem.  And it’s about time the federal government undertook some big project where it builds a bunch of stuff.  Other than that wall thing.  And unlike that wall thing, this might actually work.

It’s just our opinion of course.

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Manuel v. City of Joliet

Well, that took a while (opinion here).  We wish it had been worth the wait but, alas, things are bound to get worse from here.

The worst thing about Manuel is that it elevates Albright v. Oliver to the status of a real precedent:  the plurality opinion of Albright has now been ratified – indeed, unanimously as far as it goes – by a SCOTUS that took its time with the case but essentially wound up putting all pretrial government mischief in criminal prosecutions (at least so far) in the 4th amendment box, a huge error contrary to more than a century of precedent* that is bound to have effects even more catastrophic than Albright did.

The companion case of Hartley v. Sanchez will likely be dealt with summarily at the SCOTUS conference on Friday, so we await its appearance on the order list on Monday, not that it will make any difference to the overall picture.

Interesting that Alito and Thomas dissent and express the thought that they need another case to deal with the questions Manuel sidestepped.  Most distressingly, one of these questions was what rights of a criminal defendant, if any (!) are violated when police and prosecutors deliberately falsify evidence before a grand jury to get an indictment?  The state of the law at present is that the answer to that question is…none.  At least arguably, and you can be sure whatever is arguable will be argued.  The SCOTUS sidestepped the question, even though it was squarely presented by the facts of the Manuel case, if not the cert petition.

We are still digesting the opinion and the dissents.  Because the majority opinion is also in large measure unintelligible except in the limited sense that it holds that wrongful pretrial detentions are actionable under 42 U.S.C. 1983 as a 4th amendment violation, it may not be as bad as it first appears.  The big problem, of course, is this:  you have a pretrial detention resulting from an indictment or criminal charge obtained through a fraudulent presentation to a grand jury or a judge.  Did the fraudulent presentation itself violate the Defendant’s constitutional rights in any way?  The SCOTUS cannot put the fraudulent presentation in the 4th amendment box because it is not a search or seizure.  They have yet to say whether it’s a due process violation – although every appeals court that has considered the question has decided that it is – but it would be highly embarrassing, among other things, to conclude that it is not.

We may have more to say on this later.


  • Frank v. Mangum, 237 US 309 (1915):  “In the light, then, of these established rules and principles: that the due process of law guaranteed by the Fourteenth Amendment has regard to substance of right, and not to matters of form or procedure; that it is open to the courts of the United States … to look beyond forms and inquire into the very substance of the matter, to the extent of deciding whether the prisoner has been deprived of his liberty without due process of law, and for this purpose to inquire into jurisdictional facts, whether they appear upon the record or not; that an investigation into the case of a prisoner held in custody by a State on conviction of a criminal offense must take into consideration the entire course of proceedings in the courts of the State, and not merely a single step in those proceedings…”  Emphasis supplied, and based on this quote and others we fear that the only avenue of repair left in this situation is to argue, contrary to what several circuits have already held, that due process comes into play only when the fraudulent charges are pressed through to a conviction, still meaning that the fraudulent presentation does not in and of itself constitute a violation of the indictee’s rights.  An important person has remarked to us that in an age when scientific wonders like smart phones are all around us, it seems incredibly obtuse, not to say stupid, that the justice system has no answer for this readily answerable question.  Nevertheless, that’s where we are.

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