An Unpatriotic Act

Today's Los Angeles Times has a totally mealy-mouthed editorial on the Patriot Act. Oh, the "center-left" editorial board got some of it right, but it apparently still doesn't get that the Patriot Act, the entire act, not just those provisions about to expire and not just the national security letters, was among the most devastating assaults on constitutional guarantees in our history.

The editorial was right to concentrate on the national security letters, that I will grant, but a more helpful explication would have made it clear that those letters are emblematic of just why the entire act is blatantly unAmerican. Instead, the editorial board chose to nibble along the edges, much the same way Congress is doing.

The Patriot Act's greatest threat to personal privacy lies not in any of the provisions set to expire but in the law's expansion of the use of national security letters, subpoenas that allow the FBI to obtain records without a warrant. In 2008, the FBI issued 24,744 letters involving the records of 7,225 people. Not surprisingly, there have been abuses. In 2007, after an investigation of four FBI offices, the Justice Department's inspector general found irregularities in 22% of documents related to the issuance of national security letters. Last year, he found that the FBI had made "significant progress" in correcting violations.

Even so, the criteria for issuing the letters are too vague. At present, the government must merely certify that the information sought is relevant to an authorized investigation. The bill approved by the Judiciary Committee would increase the burden on the government slightly by requiring a written statement of specific facts demonstrating relevance. A narrower amendment by Feingold and Durbin -- which would have required issuance of national security letters to be related to a suspected foreign agent or terrorist or a possible confederate -- was rejected by the committee. It should be added on the Senate floor or in an eventual conference with the House.

The other problem with national security letters is that the companies or other institutions that receive them are not allowed to reveal that fact publicly, though they can appeal them in a closed hearing in federal District Court. Feingold proposed that the government certify that disclosure of the request would result in serious harm, and that the gag be lifted in a year's time unless the government presented new evidence that secrecy was necessary. The final version of the Patriot Act extension legislation should include those safeguards.

National security letters are nothing more than a way for the government to avoid the oversight of the judiciary with respect to search and seizure. They replace the warrants, applied for with an affidavit signed under penalty of perjury that there is good cause for the search and then reviewed by a court. That the Justice Department's inspector general found evidence of abuse was no shocking revelation. It was expected. The FBI didn't and still doesn't care because its agents will get away with such abuse 90% of the time, primarily because of the secrecy surrounding them.

These provisions don't need to be tinkered with by inserting "safeguards;" they need to be repealed in toto, just as the rest of the Patriot Act should. The 109th Congress, pushed against the wall by the Bush-Cheney White House, passed the act in response to 9/11, an attack that the CIA and the FBI had warned the president about a month before it happened. That information wasn't garnered with national security letters or warrantless wire taps. The attack was successful because a president was too lazy, too stupid, and too incompetent to listen to his own government's briefing.

The 110th Congress, with a Democratic majority did nothing but allow for expansion of those unconstitutional police powers, and the 111th Congress hasn't seen any need to rectify matters so far either. And they won't, unless they are pressured to do so. Weak editorials such as this aren't going to provide any pressure.

What a wasted opportunity.

Some Momentous Quiet News

Something about this NY Times article has been bugging me for hours, and it finally dawned on me what it was. Here's the pertinent information:

The Bush administration violated federal law last year when it restricted states’ ability to provide health insurance to children of middle-income families, and its new policy is therefore unenforceable, lawyers from the Government Accountability Office said Friday. ...

In a formal legal opinion Friday, the accountability office said the new policy “amounts to a marked departure” from a longstanding, settled interpretation of federal law. It is therefore a rule and, under a 1996 law, must be submitted to Congress for review before it can take effect, the opinion said.

But Jeff Nelligan, a spokesman for the federal Centers for Medicare and Medicaid Services, said, “G.A.O.’s opinion does not change our conclusion that the Aug. 17 letter is still in effect.”

Here's what the letter had to say:

The letter told states what steps they needed to take to be sure the children’s health program would not displace or “crowd out” private coverage under group health plans. The White House cited the policy as a justification for rejecting a proposal by New York State to cover 70,000 additional youngsters. ...

Under the Aug. 17 directive, states cannot expand the Children’s Health Insurance Program to cover youngsters with family incomes over 250 percent of the federal poverty level ($53,000 for a family of four) unless they can prove that they already cover 95 percent of eligible children below twice the poverty level ($42,400).

Moreover, in such states, children who lose or drop private coverage must be uninsured for 12 months before they can enroll in the Children’s Health Insurance Program, and co-payments in the public program must be similar to those in private plans.

It turns out that BushCo can't do that: it's freakin' illegal.

And how did the GAO get around to making that conclusion? Simple: two senators asked for an opinion:

The legal opinion was requested by Senators John D. Rockefeller IV, Democrat of West Virginia, and Olympia J. Snowe, Republican of Maine. In view of it, they urged the administration to rescind the Aug. 17 directive.

Now, neither senator is hardly a charter member of DFH, and that's what's so intriguing about all of this. After 7+ years of signing statements and grandiose theories of the Unitary Executive, two somebodies in Congress finally had second thoughts about a particular issue. They asked for an opinion, and voila!, they got an answer.

It was as simple as that, yet nobody else had the intelligence, the temerity, or the ovaries to even question the administration's right to do whatever it damned well pleased. Nobody in the 109th Congress, and only two in the 110th.

I'm thinking we're needing more than a new administration at this point.

He Said It Better

Last week I gave the back of my hand to the 110th Congress for giving DHS Secretary Michael Chertoff the power to "waive" laws in order to facilitate the building of The Wall. I was wrong, at least technically. It was the GOP-led 109th Congress that did so. Still, however, the 110th Congress has done absolutely nothing to repudiate that law, or the dozens of other laws that violate the Constitution when it comes to the tri-partite system of government we have, or at least used to have.

In Adam Liptak's brilliant column in today's NY Times, he points just what the long-term effect of those laws will be.

Securing the nation’s borders is so important, Congress says, that Michael Chertoff, the homeland security secretary, must have the power to ignore any laws that stand in the way of building a border fence. Any laws at all. ...

The secretary of homeland security was granted the power in 2005 to void any federal law that might interfere with fence building on the border. For good measure, Congress forbade the courts to second-guess the secretary’s determinations. So long as Mr. Chertoff is willing to say it is necessary to void a given law, his word is final. ...

No one doubts that Congress may repeal old laws through new legislation. But there is a difference between passing a law that overrides a previous one and tinkering with the structure of the Constitution itself. The extraordinary powers granted to Mr. Chertoff may test the limits of how much of its own authority Congress can cede to another branch of the government. ...

It is the combination of those two factors — the broad granting of power to the executive branch and cutting the judicial branch out of the process — that makes the 2005 law so pernicious ...

It is true, of course, that Congress gave up its powers here voluntarily. But Justice Anthony M. Kennedy had a response to that point in his concurrence in the line-item-veto case.

“It is no answer, of course, to say that Congress surrendered its authority by its own hand,” he wrote. “Abdication of responsibility is not part of the constitutional design.”

Justice Kennedy made a broader point, too, one perhaps more apt today than it was 10 years ago.

“Separation of powers was designed to implement a fundamental insight,” he wrote. “Concentration of power in the hands of a single branch is a threat to liberty.” [Emphasis added]

The abomination known as the Unitary President has no place in the US Constitution, and deliberately so. And the fact that Congress willingly ceded its power to the Executive branch does not matter. It cannot do so. Nor can it nullify the power granted by the Constitution to the judiciary, the third branch of our tripartite system.

Mr. Liptak's column should be emailed or faxed to every member of Congress and to every candidate running for national office in November as a fundamental primer in Constitutional Law 101.

Brilliantly done, Mr. Liptak.

The Con Game

I was absolutely astounded by this article in yesterday's NY Times.

For years, Johnson & Johnson obscured evidence that its popular Ortho Evra birth control patch delivered much more estrogen than standard birth control pills, potentially increasing the risk of blood clots and strokes, according to internal company documents.

But because the Food and Drug Administration approved the patch, the company is arguing in court that it cannot be sued by women who claim that they were injured by the product — even though its old label inaccurately described the amount of estrogen it released.

This legal argument is called pre-emption. After decades of being dismissed by courts, the tactic now appears to be on the verge of success, lawyers for plaintiffs and drug companies say.

The Bush administration has argued strongly in favor of the doctrine, which holds that the F.D.A. is the only agency with enough expertise to regulate drug makers and that its decisions should not be second-guessed by courts. The Supreme Court is to rule on a case next term that could make pre-emption a legal standard for drug cases. The court already ruled in February that many suits against the makers of medical devices like pacemakers are pre-empted.

The doctrine would make sense, sorta-kinda, if the FDA were adequately staffed and adequately funded, but it's not. In fact, it's so understaffed and underfunded that it relies upon the pharmaceutical companies to test the drugs themselves and to report the results honestly to the FDA.

Here's a scenario. A member in good standing of PHARMA submits an application to market a new drug, a lotion which cures baldness in men. The clerk accepts the application and asks if the drug has been fully tested. The PHARMA member asserts that of course it has. Then the clerk asks if there have been any serious side-effects. "Nope, just some very happy men and some very excited women." The application is granted.

What the PHARMA member didn't disclose that while the lotion does cure baldness, it has some "rare" side effects: itchy palms which ultimately turn into psoriatic arthritis in only 2% of the test subjects. That's hardly worth mentioning.

That's essentially what Johnson & Johnson did with its birth control patch, and the side effects caused the deaths of some women and disabling conditions in others because the delivery system put too much of the drug into their systems, leading to blood clots. When their testing showed the danger, Johnson and Johnson doctored the test results.

Here's the tragic part. Most of the parties involved in this and similar litigation anticipate that this company and many others will get away with it, given this Supreme Court. This is what happens when we allow "the market" to regulate itself. This is also what happens when the wrong people are elevated to the Supreme Court without any protest.

All that dry powder sitting around has become dangerous.

The Other Side

It seems being part of "The Gang of 14" is having repercussions for Sen. John McCain. This article in today's NY Times provides the rather startling news that the conservatives were just as irate as the liberals were in the deal that cleared the way for the appointments of Justices Alito and Roberts to the US Supreme Court.

Amazing.

Back in 2005, Senator John McCain of Arizona and fellow members of the so-called Gang of 14 were hailed as heroes in some quarters when they fashioned an unusual pact that averted a Senate vote on banning filibusters against judicial nominees.

Now Mr. McCain’s central role in that effort, which cleared the way for confirmation of some conservative jurists, is cited as one reason for lingering distrust of him among many conservatives. The power to appoint federal judges is seen as one of the most crucial presidential roles by many on the right, and some continue to believe the agreement undermined the Republican leadership at the precise moment the party was about to eliminate the ability to use procedural tactics to block judges. [Emphasis added]

It's difficult to conceive that the hard-liners are so, well, hard-line when it comes to judicial appointments that they would have risked having the nuclear option used against them at some point in the future. Of course, many of them no doubt believed that Republicans would control the government forever, but still, the results of that deal were so favorable to them, and will last practically forever (given the ages of Roberts and Alito), that they should be counting their blessings. Apparently they're not.

It's nice to see at least one of the Gang of 14 getting his chops busted over that horrible deal, and there's a certain schadenfreude that it's a Republican.

Sweet.

Over Our Heads In Debt

There are a few cliches that we are familiar with, while knowing they really are not reality, but invention. The Welfare mom in a Cadillac comes to mind, as well as the anchor baby. For the 109th Congress, there was the high roller bankrupt.

Under the fiction that consumers were profligate and wound up avoiding well-earned debt by high living, the GoPerv-dominated Congress of 2005 passed punitive legislation restricting the ability to get out from under massive debt by filing a simple bankruptcy and avoiding paying off overwhelming debt. The fiction of high-rolling spenders overshadowed the reality of abusive lender sales and loan origination practices that gave high fees to agents for placing expensive loans, regardless of the consumer's ability to pay.

Since the passage of bankruptcy legislation that raised the costs, because of complicated paperwork and required counseling, to 50% to 100% over its previous costs, bankrupty filings decreased in 2006. In 2007, with huge increases in irresponsible and high-pressured loan pushers, the levels rose again to close to their former level, even with that increased expense. The lenders had prevailed over the consumer in more than just lobbying Congress.

\The slowing economy, job losses, and the housing and credit crisis are sure to feed more bankruptcies, experts said.

"They will continue to go up because the economy is going into the ditch," Mr. Westbrook said.

Bankruptcy experts said there are several reasons why bankruptcy filings went down under the new law. They indicate the increased challenges that debtors face in trying to regain financial health.

"By far the biggest effect is that it's raised the cost of bankruptcy very substantially – by 50 to 100 percent," said Mr. Sommer, the consumer bankruptcy attorney leader. "Attorney fees have gone up 50 to 100 percent."

That's because of more paperwork on short deadlines and increased liability for lawyers. Court filing fees also have increased.

"Bankruptcy is just flat far more complicated and far more expensive," said Charles Chesnutt, an Addison bankruptcy lawyer. "I've had to change the way I work because the additional requirements make it far more difficult to properly do a bankruptcy."

Mr. Ross, his client, said, "The law really caused me to go through a lot of paperwork to make sure I qualified every step of the way."

Contrary to what some may believe, the new law's income test hasn't emerged as the main roadblock to bankruptcy, experts said.

The test requires anyone with income above a state's median income to file for Chapter 13.

"It's not having that much effect because there were never that many people who could afford to pay their debts [in bankruptcy], and the means test has just proven that," Mr. Sommer said. "Most people were not living high on the hog."

Some consumers believe that bankruptcy is no longer available to anyone, attorneys said.
(snip)
Legislation pending in Congress could change bankruptcy laws further.

The legislation would allow bankruptcy judges to alter the terms of a mortgage on a debtor's principal home.

Lenders oppose the proposal, saying it would raise mortgage payments for consumers by allowing courts to write down the value of home mortgages in the event of bankruptcy by the borrower.

No surprise there, that the same lenders who have been paying agents for placing higher fees than they could afford on the consumer they sold into debt now don't want to let any pressures be eased from their backs.

If you, like me, get a mailbox full of offers to lend you money constantly, and see endless ads about how easy it is to get financing for those wildly impractical vacation trips, jewelry, luxuries, you know how deceptive those lenders are about what you can and do buy.

All the sympathy of a GoPerv Congress built huge barriers to a consumer surviving his getting into the hands of lenders. It's overdue that in the face of the disaster that abusive credit practices have created, the object of individuals' survival become at least as important as the lenders' demands. In the interests of the country's economic health, a big dose of reality is overdue.

Easy credit should bear consequences for the lender, not just the bamboozled borrower. For our country's economic health, controls on lending need to be enabled, and bankruptcy eased.

The U.S. needs to give the respect to consumers that it has for too long extended only to lenders.

Meeting those rising costs of living does not need punishment, it needs encouragement.

Real ID: Bad Idea

The dangerous "Real ID" law, passed by Congress in 2005, was supposed to take effect this May, but a number of states, angered by the cost and pressured by citizens more concerned with civil liberties than the nebulous threat of rabid Islamofascists, have stood firm in refusing to go along. As a result, the Department of Homeland Security has backed down a little, delaying the deadline, according to this article in today's Washington Post.

...[critics] welcomed yesterday's official announcement that states have until May 2011 before they need to begin issuing licenses that meet the department's new guidelines, and until December 2014 to begin replacing current licenses. Drivers over the age of 50 will not have to obtain new licenses until the end of 2017.

The deadline extensions give both Congress and future presidents time to reconsider what opponents have depicted as a national identification system that will infringe on privacy rights and leave room for large-scale identity theft.

"DHS has kicked the can down the road to the next administration, and conceivably the next two or three administrations," said Barry Steinhardt, a lawyer with the American Civil Liberties Union. Already, 17 states have said they would either refuse to issue the new licenses or have asked Congress to repeal a 2005 law that required states to collect and store additional data on driver's license applicants, such as birth certificates, Social Security numbers and home addresses.

Under Real ID, all new licenses would be machine-readable and contain personal information that could be scanned by governments and potentially by corporations. [Emphasis added]

The idea of issuing "official" papers to citizens is repugnant to me, and it doesn't help that embedded in that identification card will be a chip that contains all sorts of information about me, a chip that can be read by anyone with the right scanner. So, like the other critics of the plan, I'm relieved to see both the delay and the loosening of interim rules. Perhaps a more rational Congress will take a look at what the 109th Congress did and decide that we don't need one of the hallmarks of an authoritarian government, that of "official" papers without which citizens are unable to travel. While I don't think the 110th Congress has shown the ovaries to tackle the issue, with any luck at all the 111th Congress will be better endowed.

But the news is not all rosy: states will apparently be expected to file for waivers to get the extension. As California has learned, the current administration can be very mean when states get uppity. Still, it's hard to believe that the airline industry is going to put up with the snags and delays at busy airports come summer, so the waivers may actually be granted, especially if all or most states insist on them. That ought to buy us the time we need to repeal this offensive legislation.

Happy Holidays, Elders!

When the 109th Congress passed the prescription component for Medicare ("Part D"), to limit the federal expense it chose to include a sizeable gap in coverage (the "Doughnut Hole") rather than permit the federal government to negotiate with the big pharmaceutical companies for lower drug prices. As a result, tens of thousands of our elders have been paying for the drugs they require and paying the premiums for their Part D coverage. Neat trick, eh?

One of the consequences of this shameful Solomonic decision is that many elders are going without their medications (bad). Another is that some elders have switched over, when possible, to the generic versions of drugs when possible (good). From today's NY Times:

The Medicare doughnut hole is the federal provision that older Americans love to hate.

And that is not expected to change next year, when the doughnut hole — the nickname for a big financial gap in each person’s Medicare prescription drug coverage — gets slightly larger. If the past is a guide, many people will struggle to secure a full year’s supply of the drugs they need.

But despite the arrangement’s unpopularity with older consumers, some experts see a positive public policy trend when they peer into the doughnut hole. Because it potentially forces a Medicare enrollee to pay more than $3,000 from his or her own pocket during the gap period, the hole is helping curb growth in the nation’s drug spending by pushing people toward low-cost generic drugs. ...

About 4.2 million people reached the gap last year, according to a Wolters Kluwer study, and many of them switched to generics as a way to keep their out-of-pocket costs low. Others started using generic drugs even before they reached the doughnut hole to avoid the higher co-payments their policies charged for brand-name drugs.

In 2006, an estimated 59.6 percent of the Part D prescriptions were filled by generic drugs. By the first quarter of 2007, the most recent period for which data are available, the generic rate in Medicare had edged higher, to 61.5 percent, according to Medicare figures.

Needless to say, this unintended consequence of using generics has ruffled the feathers of PHARMA.

Billy Tauzin, the president of Pharmaceutical Research and Manufacturers of America, the trade association for brand-name drug companies, said it was clear that the Medicare program, including the doughnut hole, was helping drive the use of generic drugs. And the popularity of generic drugs is cutting into the profit margins of branded drug companies, he added.

Mr. Tauzin, a former congressman, said his group had made several proposals to Congress for shrinking the doughnut hole. Among the suggestions, he said, was to count the free drugs that companies sometimes provide to lower-income Medicare beneficiaries as part of the patients’ running total of drug costs. Doing so would make their catastrophic coverage kick in sooner.

Mr. Tauzin is not just "a former congressman," he was a congressman who voted on the Part D bill with its orders against negotiated drug prices and then quickly walked into his new, higher paying job for PHARMA. Nice work, eh?

There's nothing wrong with using generics rather than the more expensive brand-names, but that's not always an option. When that happens, a less expensive and often less effective drug replaces the original prescription, even to the point of using aspirin (with its attendant side effects) instead of a prescription blood thinner.

I don't have much sympathy for PHARMA members who are now faced with a smaller bottom line: they bought the congressional vote and should have to live with the consequences, unintended though they may be. My sympathies are for the elders who are facing the doughnut hole and paying the premiums at the same time. This leaves our elders with some rather Draconian choices: medicine or home heating, medicine or food.

There is absolutely zero chance that the 110th Congress will address the issue, especially with the current president who has suddenly discovered his veto pen when it comes to legislation which might actually help segments of the population not given to making huge campaign donations.

Hopefully the next Congress and the next president will be of a different sort than the current crop. But that hope won't feed, heat, or properly medicate our elders, and that is shameful.

Surprise!

Many of us pointed out all the flaws in the Medicare Part D drug plan rammed through the 109th Congress several years ago: the doughnut hole in coverage and the ban on government negotiations with pharmaceuticals on drug prices. The part that didn't get much attention, the complete privatization of the drug plan, is the one that currently shows the stupidity of how the plan was put together, according to an article in today's NY Times.

Tens of thousands of Medicare recipients have been victims of deceptive sales tactics and had claims improperly denied by private insurers that run the system’s huge new drug benefit program and offer other private insurance options encouraged by the Bush administration, a review of scores of federal audits has found.

The problems, described in 91 audit reports reviewed by The New York Times, include the improper termination of coverage for people with H.I.V. and AIDS, huge backlogs of claims and complaints, and a failure to answer telephone calls from consumers, doctors and drugstores.

Medicare officials have required insurance companies of all sizes to fix the violations by adopting “corrective action plans.” Since March, Medicare has imposed fines of more than $770,000 on 11 companies for marketing violations and failure to provide timely notice to beneficiaries about changes in costs and benefits.

The companies include three of the largest participants in the Medicare market, UnitedHealth, Humana and WellPoint.

The audits document widespread violations of patients’ rights and consumer protection standards. Some violations could directly affect the health of patients — for example, by delaying access to urgently needed medications.

Medicare used to be one of the most efficiently run programs in government, much more efficient than any privately run health insurance program. Consequently, the GOP decided to change all of that by giving the new business to the for-profit insurance industry, and here is the result. People are being arbitrarily being dropped from plans they paid for, formularies are being changed midstream by the insurance companies, benefits are being denied without physician review, and no workable avenue of appeal has been developed in any of the plans.

Medicare and Health and Human Services Department leaders are spinning the problems by pointing out just how well the system works. All those audits and fines show just how effective the program is. The fact that additional taxpayer dollars were spent to catch all of those crooks apparently isn't factored into the rosy news.

What a surprise.

But then, who could have imagined?