Chief Justice Roberts Again Rewrites Law, Avoids Duty to Hold Government's Feet to the Constitutional Fire
In today’s ruling in Bond v. United States, the Supreme Court was obviously right to reverse as federal overreaching the conviction of a woman who used certain chemicals to attack her husband’s paramour. This was a “purely local crime,” and the decision to prosecute Carol Anne Bond for it under a law that implements the international Chemical Weapons Convention was an abuse of federal power.
But in deciding the case so narrowly, creatively reinterpreting an expansive federal statute instead of reaching the constitutional issue at the heart of this bizarre case, the Court’s majority abdicated its duty to check the other branches of government. Bond was a case about the scope of the treaty power—can Congress do something pursuant to a treaty that it can’t otherwise do?—and yet the majority opinion avoided that discussion altogether in the name of a faux judicial minimalism. That’s not surprising given that its author is Chief Justice Roberts, who goes out of his way to avoid hard calls whenever possible. (Sometimes the practical result is still the right one, as here, sometimes it’s disastrously not, as in NFIB v. Sebelius, the Obamacare case, and sometimes even Roberts finds it impossible to avoid the Court’s constitutional duty, as in Citizens United and Shelby County.)
It was thus left to Justice Scalia, joined by Justices Thomas and Alito, to do the hard work—to make those balls-and-strikes calls that Roberts promised at his confirmation hearing—and repudiate Missouri v. Holland, the 1920 case that’s been understood to mean that the federal government can indeed expand its own power by agreeing to do so with a foreign treaty partner. (Scalia’s opinion tracks Cato’s amicus brief closely, and cites my colleague Nicholas Quinn Rosenkranz’s groundbreaking work in this area.)
One other takeaway here is that the Obama administration has yet again lost unanimously at the Supreme Court, adding to its record number of goose eggs—particularly in cases involving preposterous assertions of federal power. Here Chief Justice Roberts provides the apt langiappe: “The global need to prevent chemical warfare does not require the federal government to reach into the kitchen cupboard, or to treat a local assault with a chemical irritant as the deployment of a chemical weapon.”
Medical care for veterans has become Washington’s latest scandal du jour. Those injured while serving their country deserve prompt, quality medical attention.
Everyone agrees that forcing veterans to wait, and possibly die waiting, for medical care is outrageous. But what to do?
Caring for veterans isn’t cheap. Promiscuous war-making over the last decade has generated an influx of patients, many with debilitating injuries. This year VA is expected to spend roughly $151 billion.
The government has a solemn duty to care for those injured in war. Yet VA estimated that it has a case-processing backlog of 344,000. On average it takes vets 160 days to become eligible for benefits.
After being declared eligible vets had to wait an average of 115 days for a primary care appointment at the VA’s Phoenix facility. As many as 40 vets may have died waiting.
The IG found such practices to be “systemic.” In numerous communities VA employees apparently manipulated data and falsified reports to hide patient deaths as well as delays.
However, the more basic problem is rationing care to meet budget targets. The agency is short hundreds of primary care physicians. The pharmaceutical formulary has roughly one-third of the drugs available to Medicare patients. Available psychiatric services have declined in recent years.
Unfortunately, better management alone cannot fix the agency’s problems. In 1994 former Rep. Robert E. Bauman wrote: “the VA is the quintessential government bureaucracy—administratively officious, laden with red tape and meddlesome regulatory minutia destructive of both quality care and staff conduct.” Quality obviously suffered.
The Clinton administration put Kenneth Kizer in charge of the department and he made dramatic improvements. But his success didn’t last. After leaving Kizer complained that “The culture of the VA has become rather toxic, intolerant of dissenting view and contradictory opinions. They have lost their commitment to transparency.”
Even today the VA doesn’t do everything badly. But access is fundamental.
Complained Hal Scherz, a doctor who served in VA hospitals in San Antonio and San Diego: “patients were seen in clinics that were understaffed and overscheduled. Appointments for X-rays and other tests had to be scheduled months in advance, and longer for surgery.”
Veterans’ organizations such as Veterans of Foreign Wars traditionally backed a specialized system for vets. However, many veterans’ health problems are not unusual. Indeed, the longest waits today are for primary care. Moreover, there is no reason that only VA facilities can serve patients suffering from combat trauma.
The federal government should separate the functions of guaranteeing from providing vet access to health care. As I pointed out in my column on Forbes online: “Uncle Sam has a sacred obligation to ensure that they receive treatment on their return. That does not, however, mean the VA must build the hospitals, hire the doctors, and provide the services.”
Government should put money into veterans’ hands to purchase insurance tailored to their special needs. Existing VA facilities could either be privatized or focused on combat-related ailments common to vets.
This would be no jump into the unknown. Specific services are outsourced locally when they are unavailable at a VA facility. Moreover, only 16 percent of vets rely on the system as their principle caregiver.
Sen. John McCain, a Vietnam vet, argued: “Let’s let our veterans choose the health care that they need and want the most and not have to be bound to just going to the VA.” House Veterans Affairs Chairman Jeff Miller suggested that the VA at least allow vets who have to wait for more than 30 days to go outside for care at government expense.
Business as usual is not an acceptable response to the latest VA scandal. We should transform how the government cares for those who performed the toughest service of all.
Patrick J. Michaels and Paul C. "Chip" Knappenberger
Global Science Report is a feature from the Center for the Study of Science, where we highlight one or two important new items in the scientific literature or the popular media. For broader and more technical perspectives, consult our monthly “Current Wisdom.”
In preparation for President Obama’s unveiling, today, of the U.S. Environmental Protection Agency’s new proposed regulations to limit carbon dioxide emissions from existing power plants, the EPA has released its updated “Climate Change Indicators in the United States.” As you may have guessed, the report claims manmade climate change is upon us and it is bad.
Last summer, the president announced his Climate Action Plan aimed at mitigating future climate change by executive fiat—in other words, avoiding Congress and public opinion—and simply commanding from on high that U.S. carbon emissions be reduced (never mind that they were already declining, or that any U.S. reductions, no matter how large, would have no meaningful effect on the future course of the climate).
Since then, the administration and the scientists it pays to study global warming have been rolling out report after report pointing to the horrors that have already occurred (like the record-long time since a Category 3 hurricane crossed a U.S. beach?), and how things will certainly get much worse from human-caused global warming if we don’t act now to head it off—that is, stop burning coal to produce electricity.
First was a report from the scientists’ lobby for government funding, the American Association for the Advancement of Science (AAAS), then came the federal National Climate Assessment report, and now the latest from the EPA—just in time for the president to cite in his remarks.
All along we have been saying that these reports are not scientific, but instead are purely political, documents. That became quite clear in last week’s congressional hearing testimony by Daniel B. Botkin, who once believed global warming was a terrible problem, but has since taken the opposite position.
Perhaps there is no finer example of the politicization of “science” than what the “Indicators” report the EPA just handed us.
The figure below is a portion of a screen capture from the “Heat-Related Deaths” section of the EPA’s new “Climate Change Indicators” website. It is labeled “Deaths Classified as ‘Heat-Related’ in the United States, 1979–2010.”
We don’t know anyone who could look at this chart and not be left with the strong impression that heat-related deaths in the United States are on the rise—apparently confirming the president’s concern about climate change and underscoring his desire to do something about it.
But notice the asterisk at the bottom of the box. Here’s the text associated with it:
Between 1998 and 1999, the World Health Organization revised the international codes used to classify causes of death. As a result, data from earlier than 1999 cannot easily be compared with data from 1999 and later.
In other words, you shouldn’t plot pre- and post-1999 data on the same chart because the data are not comparable, lest you mislead the uninitiated reader. The EPA ignores its own warning and instead plots the two sets of not-easily-compared data side by side on the same chart, ensuring that they are compared!
Such an analysis would probably grade out as an F in an undergraduate paper, but perhaps the EPA is suffering from a bit of “Noble Cause Corruption.” After all, they are trying to save us from certain death.
The proper way to view the EPA chart is to put your hand over the data points on the right-hand side of the chart (1999 and onwards) and then over the data points on the left-hand side of the chart (pre-1999 data). In doing so, you’ll see that during both periods the rate of heat-related mortality does not rise.
For those who want a clearer image of the truth when it comes to the effect of global warming on trends in heat-related mortality across the United States, see the figure below, taken from a brand new study by Jennifer Bobb from the Harvard School for Public Health and colleagues. The graph shows the number of heat-related deaths (for every thousand overall deaths) that result from the daily temperature being 10°F above normal, from 1987 to 2005. The trend is strongly downward—in other words, fewer deaths are associated with heat.
Temporal trends, from 1987 to 2005, in the excess number of deaths (per 1,000 deaths) attributable to each 10°F increase in the same day’s summer temperature, nationally in the United States (excerpted from Bobb et al., 2014).
Or as Bobb and colleagues put it:
This study provides strong evidence that acute (e.g., same-day) heat-related mortality risk has declined over time in the US, even in more recent years. This evidence complements findings from US studies using earlier data from the 1960s through mid-1990s on community-specific mortality rates, as well as European studies that found temporal declines in heat-related mortality risk, and supports the hypothesis that the population is continually adapting to heat. [citations removed]
Not only is the risk from extreme heat declining, but so too are the actual numbers of people dying from extreme heat both in the United States and abroad (when properly standardized for demographic changes and population growth).
This is opposite from what the EPA chart leads you to believe.
The only way for the EPA to be so out of touch with the prevailing science is to be so on purpose.
We can’t help but to think that purpose will be revealed today.
Bobb, J.F., R.D. Peng, M.L. Bell, and F. Dominici, 2014. Heat-related mortality and adaptation in the United States, Environmental Health Perspectives, http://dx.doi.org/10.1289/ehp.1307392