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OpEdNews Op Eds    H3'ed 5/5/12

Constitutional Issues: Part I or The Republican Vision: The United States of America Incorporated

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(1)   Medicare Part D:   The Republican Drug Scam

So what do we know?   We know that the sixty two billion dollars spent on prescription drugs   by Medicare Part D Seniors last year would have cost less than thirty billion dollars had they been purchased through the V.A. or through any of the the armed forces.   Does Medicare Part D violate the 14th Amendment to the Constitution by singling out the Medicare Agency and effectively denying its members the right to collectively negotiate drug prices like everyone else?   The military, Tricare, the Veterans Administration and many other government entities have the right that Medicare does not, to negotiate better rates.

Is it legal for a lobby, in this case Phrma, to author a Congressional bill?   Additionally, does hiring Congressman Billy Tauzin as their president, at an annual salary of millions of dollars shortly after he had asked them to write the bill which he was assigned to write, constitute a bribe?   If not, does it represent a violation of the "Honest Services Statute?"

Do Medicare Part D subscribers have grounds to sue the federal government, Congress, Billy Tauzin, or Phrma for violation of their civil rights?   Can they demand criminal charges against any of the   above conspirators?


(2) Privatized Social Security and Medicare:   Not a "Ponzi Scheme," Governor Perry, but a "Rob Peter to Pay Paul Scheme"

What do we know?   Currently, the Social Security Fund is owed almost three trillion dollars which were "borrowed" from the fund and apparently secured by counterfeit U.S. Treasury Bonds.   Can the Federal Government effectively welch on its debt if the Social Security Fund goes into deficit?  

Under the "Commerce Clause" of the Constitution as rearranged by Congress in the 1940's, apparently each state was given sole control of insurance entities within its borders and Congress retained jurisdiction over the insurance commerce between the states.   Apparently Congress also reserved its right to become involved if it were necessary to police violations of law involving insurance entities.   Additionally, the insurance industry was granted limited relief from the Sherman Antitrust Act as well, permitting them to fix prices.

Under the laws of each state, is an insurance company required to show that it is able to reasonably assure the payment of its liabilities should it become necessary to make good on the policies that it has written?   If so, could privatized Medicare and Social Security come up with the required thirty nine-eighty nine trillion and eleven trillion dollars respectively which   various experts estimate are the current values of those unfunded liabilities? [1] [2]   It is estimated that within twenty years this total may be well over one hundred and ten trillion dollars.   Will private insurers be able to meet their obligations then?

Note: As an aside, consider that no homeowners insurance company can come close to assuring the payment of their obligations.   In every instance they are licensed with the state's full knowledge that should a disaster occur, the federal government will "bail" them out by declaring the affected area a "disaster."   The government in this case is the only "deep pocket" and thus the only real assurance that the company can meet their obligations.   Is this not known as "corporate welfare?"   Are the states not violating their own laws so graciously gifted to them by the 1940's Congress? Are the insurance entities not technically back under the jurisdiction of the Congress under the "Commerce Clause" of the Constitution?   If Medicare and Social Security are privatized, how can that possibly be legal?


(3) The Affordable Care Act and the Health Insurance Mandate:   The "Commerce Clause" Scam

Note: It is my personal opinion that any mandate that demands purchase of an inferior private insurance product, one that is, in most states (supposedly) regulated by an insurance commissioner who is a lackey of the industry that he is regulating, is a classic example of a protection racket.   If the sole reason that millions of people are forced to purchase an essentially needless and inferior insurance product is fear of punishment, then the process is called "extortion."   If one claims that only the states are allowed to practice this form of extortion, his argument is a hollow one indeed.   Alas, "ethical" and "legal" are not always synonymous.

As discussed above and according to some, apparently intrastate insurance issues are the province of the states unless there is a violation of the law involved or some interstate dispute or interstate commerce issue.   To the naked eye, the advent of Medicare and Social Security certainly seems to throw a monkey wrench into this interpretation and into the workings of the 1940's rearrangement of the "Commerce Clause."   Both federal programs are "sort of" mandated by the federal government in the form of "payroll tax deductions," but are left to the states to "sort of" run them as well.   In neither case is participation completely mandated.

Meanwhile, in a bizarre twist, Republicans suggested including in their bill "portability"of health insurance from one state to another as a substantial cost saver.   For some reason the idea was sabotaged by the Democratic House Speaker and her Congressional Budget Office by obviously lowballing projections of cost savings.   One would have to assume that the Republicans were not serious about their own suggestion and that Democrats had somehow outsmarted themselves because "portability" would seem to qualify the "mandate" under all interpretations of the Commerce Clause.

Perhaps it might serve the Obama Administration well to argue the illegality of the manipulation of the original Commerce Clause of the Constitution rather than dwelling on all of the precedents decided in all the years since the clause had been so badly desecrated?   Perhaps they should use real lawyers this time?   Perhaps they should return those expensive tokens of "free speech" given to them by the gracious insurance lobby in exchange for sandbagging "portability?"

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Dr. Allen Finkelstein, writing since 2006 under the penname “O’finky,” was born in New York, where he attended the Hebrew Academy of Nassau County as a boy. He continued his religious training in South Florida until his family, (more...)

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