P.L.A. - A Journal of Politics, Law and Autism
PLA is a fair and balanced Journal published by Dwight Meredith with a Focus on Politics, Law and Autism
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Saturday, March 08, 2003
Handle With Care
Via Wampum, we found The Horror of Blimps at Teemings Extras. It is the early leader for the funniest post of the year. Handle with care, you may hurt yourself.
The Real Story
The Washington Post reports as follows:
A key piece of evidence linking Iraq to a nuclear weapons program appears to have been fabricated, the United Nations' chief nuclear inspector said yesterday in a report that called into question U.S. and British claims about Iraq's secret nuclear ambitions.
None of the major media outlets have identified the document in question. Through contacts in the international intelligence community as well as interviews with certain officials, PLA has now obtained a copy of the fraudulent document.
The document was in the form of an email. It was addressed to George W. Bush at his White House email account. The document, which is reproduced below, has been redacted to protect our intelligence sources. The email, says in part:
ATTN: George W. Bush
When asked how the intelligence community determined that the email was a fraud, the source said that the true nature of the email came to light only when Mr. Bush could not explain to Laura what happened to the twins’ tuition money.
Friday, March 07, 2003
Looking For Tom Spencer?
If you have been looking for Tom Spencer's Thinking it Through, it is temporarily located here. If he does not return to his normal abode over the weekend, we will change our permanent link to Tom's page.
The Politics of the Estrada Filibuster
The GOP moved to end the Democratic filibuster of the nomination of Miguel Estrada to the D.C. Circuit Court of Appeals yesterday. The New York Times reports the following:
Senate Republicans lost a crucial test vote today over President Bush's nomination of Miguel Estrada to the federal appeals court in Washington, gaining 55 votes, 5 short of the 60 needed to cut off debate…
The politics of the filibuster are the matter of same debate. Jane Galt thinks that the GOP is in a win/win position with regard to the nomination:
If war comes, either the Democrats will give up their filibuster to allow vital business to proceed, or they won't. And if the Democrats are holding up vital Senate business in order to keep Estrada's nomination from coming to a vote, they will suffer mightily at the polls -- especially since a nice majority of this year's presidential crop comes out of Congress. All the Republicans have to do is wait -- and meanwhile, no extra money gets spent. It's win/win.
Matthew Yglesias takes issue with Jane’s analysis:
I disagree. Both sides are just as much engaged in "holding up vital Senate business" here. The GOP could back down if they'd rather move on to something else and so could the Democrats. Politically-speaking, this is going to be a wash…
Eric at The Hamster (no permanent links, scroll down) thinks that the Democrats will pay no price for the filibuster as no one pays any attention to judicial nominations and the minority community does not look to Judges as political leaders.
We doubt that that Dr. Frist and the Republicans will repeatedly bring the Estrada nomination to a cloture vote unless there is significant erosion of Democratic support for the filibuster.
The GOP has the majority in both houses of Congress as well as the White House. The public is not interested in excuses for why a majority party has not attended to the needs of the nation. If “vital business” of the Senate is held up, the public will blame those in charge of the Senate. “But Tommy (Daschle) wouldn’t let me do my homework ” is not an excuse we would accept from our nine year old and we doubt that the public would accept it from the GOP.
In addition, the failure to pass “vital business” undercuts one of the central themes of the Bush administration. The 1990s saw the rise of partisan acrimony culminating in impeachment and acquittal of a popular president. In 2000, Bush ran on a promise to end the partisan bickering, bring the parties together and move the nation forward. He was a uniter not a divider.
In the 2002 mid-term elections, Mr. Bush actively campaigned for a Republican Senate, arguing that he needed complete control of the Federal Government to effectively do the people’s business. The public heeded that call and gave him a Republican Senate.
If Mr. Bush cannot ensure that “vital business” is accomplished even with his party in control of the White House the Senate and the House, the promises he made to the public in the last two elections will be exposed as empty rhetoric.
We doubt that Karl Rove thinks that “I fooled you in the last two elections but this time I really, really mean it” is a good campaign slogan.
The 8th Amendment and Proportionality
Jeff Cooper has a very smart post about the Supreme Court’s decisions in Ewing v. California and Lockyer v. Andrade to upholding California’s three strikes law.
To my mind, the two cases yesterday speak less of flaws in constitutional application than of flaws in lawmaking by initiative. As Justice O'Connor's plurality opinion in Ewing details, California's three-strikes law began life as a bill that was defeated in the California Assembly. Shortly after that defeat, Californians were enraged by the murder of twelve-year-old Polly Klaas by a man with two prior kidnapping convictions; that rage spurred both a ballot initiative, Proposition 184, and companion legislation in the Assembly. The success of the bill in the Assembly, despite its prior defeat in committee, was not surprising given the electorate's broad support for Proposition 184, as legislators had a strong incentive to align themselves with a popular ballot measure. But public passions, provoked by specific events, are not conducive to considered lawmaking, as California's three-strikes law--the harshest in the nation--demonstrates. Nuance and balance are difficult to capture in the initiative process; while the policy goal sought to be furthered by an initiative may be rational, there is, inherent in the initiative structure, a tendency to overreach in pursuit of that goal. California's three-strikes law is, in my view, a bad law. But a bad law is not necessarily an unconstitutional law.
We agree. We think that three strikes laws are bad public policy. That does not mean that such laws are unconstitutional. While three strike laws can produce some ridiculous results, we do not think that Ewing presented such a case. Ewing had a long history of criminal activity detailed by Justice O’Connor in her opinion. Before his conviction for sealing about $1,200 worth of golf clubs, Mr. Ewing had been convicted of no fewer than 13 other crimes in a ten-year period. His sentence of 25 years to life elicits no sympathy from us.
We are distressed, however, over the opinions of Justices Scalia and Thomas. Neither Scalia nor Thomas believe that the Eighth Amendment to the Constituion requires that the punishment be proportional to the crime.
The Eighth Amendment says:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Thomas and Scalia read the “cruel and unusual punishment” clause as limiting the type of punishment without reference to the underlying crime. If a sentence of life imprisonment is not “cruel and unusual” when applied to a murderer, for Thomas and Scalia, it is also not “cruel and unusual” when applied to the crime of allowing a parking meter to expire.
The Thomas/Scalia position can lead to ridiculous results. We think that forced sterilization is an inappropriate punishment in all cases. We suspect, however, that a sizable portion of the population would support using forced sterilization as a punishment in the case of a recidivist child rapist.
For Scalia and Thomas, there is no middle ground. Forced sterilization is either “cruel and unusual” in all cases or in none. If it is constitutional when applied to a recidivist child rapist, it is constitutional when applied to a speeder, a petty thief or a pot smoker.
The Thomas/Scalia position currently commands only 2 of 9 votes on the Supreme Court. That could change as Mr. Bush has held up Thomas and Scalia as models for the types of judges he wishes to appoint.
We congratulate the Senate Democrats on standing firm in their filibuster of Miguel Estrada. If Democrats do not stand firm on judicial appointments, Mr. Bush may fill the Federal Judiciary with Judges who think like Thomas and Scalia.
And that is a very scary thought.
Thursday, March 06, 2003
Tort Reform Quiz
How much do you know about the facts surrounding the issue of medical malpractice/tort reform? Take the following quiz and find out. All answers were taken from or calculated from information contained in USA Today report. Many thanks to the indispensable Bloviator for the link.
1) On average, Doctors spend approximately what percentage of their revenue on medical malpractice insurance?
2) Place in descending order the average costs to Doctors of the following:
(b) Medical malpractice premiums
(c) Office equipment
(d) Office Personnel
3) According to data released by the government, medical malpractice premiums rose last year by an average approximately of:
4) OB/GYNs in Miami, Florida are reportedly being charged a reported $200,000 a year for malpractice insurance. A cap on non-economic damages would reduce those premiums by:
5) According to a report in Medical Economics, OB/GNYs pay the higest percentage of their revenue for medical malpractice premiums. That percentage is approximately:
6) A report for the New Jersey Medical Society by Tillinghast-Towers Perrin estimated that a state cap of $250,000 for pain and suffering might result reduce malpractice premiums for New Jersey Doctors by what percentage?
7) If you are currently paying $300 per month for health insurance, a $250,000 cap on non-economic damages in medical malpractice suits is expected to lower your health insurance premiums to:
8) A 1999 study by the Institute of Medicine, an arm of the National Academy of Sciences, found that the number of people who died in hospitals as a result of medical mistakes was:
a) less than 10,000
b) between 10,000 and 40,000
c) between 40,000 and 100,000
d) more than 100,000
1) D. According to USA Today, Doctors spend an average of 3.2% of revenue on malpractice premiums.
2) “A March 2002 government report by MedPAC, a congressional advisory commission, says doctors, on average, were expected to spend 3.2% of their revenue on malpractice insurance last year. That compares with 12.4% for staff salaries, 11.6% for office expenses and 1.9% for medical equipment.”
3) D. According to USA Today “Government data released Monday by a congressional advisory commission show the average increase last year was 11.3%.”
4) D. 0%. Florida already has a cap on damages.
5) D. “Calculations based on two surveys published by Medical Economics magazine -- widely read by physicians -- last year show that OB-GYNs paid the most for malpractice insurance, as a percentage of their revenue, 6.7%, and cardiologists paid the least, 1.5%.”
6) D. “A report for the New Jersey Medical Society by Tillinghast-Towers Perrin estimated that a state cap of $250,000 for pain and suffering might result in 5% to 7% savings for physicians. According to a study by the Congressional Budget Office, states without a cap on jury awards would see significantly lower premiums for malpractice insurance if Congress instituted such a nationwide cap. On average, the study found, such a law would cut premiums in those states 25% to 30%. However, the Congressional Budget Office study said there would be no effect in about one-quarter of the states, which already have similar caps.
7) A. $299. “At the same time, the congressional study reported that caps on pain and suffering awards would translate into very small savings -- 0.4% -- on overall health insurance premiums for the general public.” A 0.4% reduction in a $300 per month premium results in a savings of $1.20 per month.
8) C. “A 1999 study by the Institute of Medicine, an arm of the National Academy of Sciences, blamed medical mistakes for the deaths of 44,000 to 98,000 hospitalized Americans each year.”
Update: PLA reader Christopher Monsour emails to suggest that the answer to number 4 may be wrong. Chris says that Florida limits punitive damages but not non-economic damages. We got our information from USA Today which reported:
For example, an obstetrician/gynecologist might pay more than $200,000 a year for malpractice insurance in Miami, one of the priciest malpractice insurance markets despite Florida's limits on damages.
We will try to find the relevant portion of Florida law today and will post an update when we do.
Florida has enacted a no-fault Birth Related Neurological Injury Compensation Plan that is the exclusive remedy for all cases in which the infant has sustained a brain or spinal cord injury caused by oxygen deprivation or mechanical injury and that the infant was thereby rendered permanently and substantially mentally and physically impaired. In such cases, the non-economic damages are capped at $100,000.
A Federal non-economic damages cap of $250,000 would not limit the liability of Florida OB/GYNs for damages in such cases in any way.
Ari Fleischer Is Right
Some people use the phrase, “even a stopped clock is right twice a day” refer a person who stumbled onto the truth. Here in the south, we prefer to say, “even a blind pig finds an acorn every now and again.”
Regardless of your region, you must admit that today Ari Fleischer stumbled onto the truth.
The New York Times reported today about criticism of Bush’s alleged policy towards North Korea by a group of former Clinton administration foreign policy hands:
In the Democrats' sharpest critique of President Bush's foreign policy, a group of Clinton administration officials joined Senate Democrats today in attacking the handling of North Korea. The group called for immediate direct talks with Pyongyang to prevent a nuclear arms race in Asia.
In response to the criticism, Ari Fleischer said the following:
think North Korea would like nothing more than to make this a crisis, because the more they can make this a crisis, the more they think they will get things in return.
Like the stopped clock or blind pig, Fleischer is exactly correct. North Korea wants to make the current situation a crisis. Kim Jung Il believes that if he can generate a crisis, he can achieve direct bilateral negotiations with the United States. North Korea may be interested in using those bilateral negotiations to secure its sovereignty, obtain a non-aggression pact and/or secure economic aid in return for its halting its nuclear weapons program. For an excellent explanation of possible North Korean goals in the current situation see this article by Phillip C. Sanders for the Center for Nonproliferation Studies.
North Korea has taken a number of provocative steps to generate a crisis in which to negotiate. It opted out of the 1994 agreed framework. It kicked inspectors out. North Korea moved its spent fuel rods to prepare them for processing into weapons grade plutonium. It has reopened a nuclear facility capable of producing additional supplies of weapons grade plutonium. It has conducted missile tests and “painted” American surveillance planes. A portion of a North Korean missile was found on American soil in Alaska. At each step, the administration has declared that no crisis exists.
There are additional steps that North Korea may take to stimulate a crisis. It may begin production of nuclear weapons. It may test weapons. It may test longer-range missiles. It may offer plutonium for sale to terrorists. If North Korea wants to create a crisis before it negotiates, it has the ability to do so.
Would it not be smarter to acknowledge that a crisis exists and begin negotiations to solve the crisis before North Korea sells a nuclear weapon to Al Qaeda? If Kim Jung Il wants us to acknowledge that a crisis exists before negotiations begin (as Ari Fleischer suggests), it makes more sense to do so before irreparable harm occurs.
After all, calling the situation a crisis does not change the nature of the situation. If the concession North Korea seeks to begin negotiations aimed at eliminating it nuclear weapons program is to call the situation a crisis we should do so.
If the North Korean situation is not now a crisis, it will certainly soon be one. We would prefer to negotiate an agreement to stop the first nuclear weapon from being sold to Al Qaeda not the second or third.
Stop the presses, Ari was right.
A Drop In The Ocean
Writing P.L.A. has often been a bittersweet experience. While it beats screaming at the television as Howard Fineman talks about Al Gore’s choice of attire, we hope for greater rewards. In particular, we hope to inform, amuse or persuade a few people. Some days, it feels like we fail to meet those goals. It is easy to get discouraged. Then there are days like today.
A number of newspapers recently carried an article suggesting that the increase in the number of autistic children seeking services could be explained by an expanded definition of autism rather than an actual increase in incidence. As regular readers of PLA will already know, we think that argument is contrary to the evidence and, in fact, is just plain silly.
Wampum has done her usual splendid job of deconstructing the article.
Among the newspapers that ran the article was the Cincinnati Enquirer. Today, the Enquirer ran a letter to the editor from Barbara Swartz. In that letter, Ms Swartz wrote:
As the mother of a young child with autism, I appreciated seeing this serious neurological disorder highlighted on the Enquirer's front page March 3, until I read the last part of the headline: "Caseload growing quickly: definition could be the reason."
That letter, along with Wampum’s post, sum up our view of the matter. What does all of that have to do with writing PLA? Well, today we received the following email:
Hi. I'm a fellow POA (Parents of Autisics). I've been a regular reader of your blog (and of Wampum's) since the fall, when my husband first discovered you.
Barbara may be right that one letter to the editor, like one small web site, is a drop in the ocean. Nonetheless, that is one fewer drop that remains to be removed. Thanks Barbara, you made our day and reminded us why we do this.
Wednesday, March 05, 2003
Tapped reports that TomPaine.com has:
issued a public challenge to Ann Coulter and Bernard Goldberg, authors of Slander and Bias, respectively. The terms? Defend their books in a debate with Eric Alterman, author of What Liberal Media?, at the National Press Club before a live audience, with a neutral moderator, in front of C-SPAN.
While we heartily support such an idea, why will two advocates of the existence of liberal bias in the media be present but only one skeptic? We nominate Bob Somerby of the Daily Howler to help Alterman carry the flag.
For the neutral moderator, the folks at Spinsanity should do.
A Different Kind Of Medical Malpractice Reform
Ross of the Bloviator points us to this USA Today article. Apparently, some hospitals and insurers have adopted the highly unusual policy of actually telling the patient when a medical error has occurred:
Malpractice insurers' mantra is often ''deny and defend'' when a doctor or hospital is accused of a medical injury. But at least one insurer and several hospitals are trying a different tack, one that sounds a lot like ''I'm sorry.''
Lawsuits are a long, messy, expensive, and vituperative method of resolving disputes. The process of litigation imposes huge emotional costs on both sides of the dispute. Negotiation and mediation are far better ways of achieving a reasonable result with a minimum of financial and emotional transaction costs.
A major reason that many disputes are litigated instead of negotiated is a lack of trust on both sides. When a dispute arises, there is a tendency on the part of lawyers, doctors and insurance companies to posture and buster. A (female) friend who has helped us resolve many such disputes has suggested that the posturing and bluster is a form of testosterone poisoning. Our experience suggests, however, that it is not gender limited.
Lawyers for both plaintiffs and defendants owe a duty to their clients to seek to achieve a good result. Taking a hard litigation position that results in a slightly "better" financial outcome without accounting for the transaction costs incurred by the client should not be considered a "good result." We have seen (and, alas, represented) far too many clients who "won" the litigation but for whom the emotional losses due to the process were greater than the financial gain.
When we were first practicing law, a very wise and experienced lawyer told us that, “a bad settlement is better than a good lawsuit.” While we do not agree with that statement, we do think that a fair settlement is always far better than a lawsuit.
Dog Bites Man
A Washington Post story today was headlined “Powell Accuses Hussein of Trying to Divide Security Council.”
In local news, a prosecutor accused a defense lawyer of trying to sway the jury to acquit the defendant.
Meanwhile, in business news, Pepsico charged that Coca Cola’s advertising campaign was designed to convince the public that Coke tastes good.
Korean Missile Located in Alaska
Jesse links to this report that part of a North Korean long-range missile has been located in Alaska. The article states:
The warhead of a long-range missile test-fired by North Korea was found in the U.S. state of Alaska, a report to the National Assembly revealed yesterday.
North Korea is about to restart its nuclear plant that could produce weapons grade plutonium. North Korea has on hand sufficient spent fuel rods to produce a nuclear weapon a month through summer. The administration, however, assures us that no crisis exists.
Budget Deficit Balloons
The Bush administration has projected the budget deficit for this fiscal year to be slightly more than $304 billion. The fiscal year started last October and runs through next September. The New York Times reports, that even that dismal projection is no longer operative:
The federal deficit is growing much more quickly than expected, even before Congress takes up President Bush's tax-cutting proposals and without factoring in the costs of a war in Iraq, Congressional analysts have concluded.
The Times goes on to report:
From October through January, the first four months of the current fiscal year, tax revenue plunged, and the deficit ballooned to $94 billion.
Two short years ago, the budget was in surplus and Mr. Bush was promising that he could cut taxes by more than a trillion dollars, pay off the entire national debt and leave Social Security and Medicare trust funds untouched as we prepared for the retirement of the baby boomers.
Under his stewardship, the baby boomers are two years closer to retirement and the entire surplus has vanished. Mr. Bush’s budget, as proposed, would include a record deficit even after consuming the entire Social Security and Medicare surpluses. Mr. Bush’s own OMB forecasts budget deficits for as far as the eye can see.
The proposed budget deficit remains operative for only five weeks until it grows by an additional $30 billion.
In the face of those facts, Mr. Bush proposes to cut taxes by more than a trillion dollars for the second time in two years while increasing spending by more than 6%. The cost of war and reconstruction of Iraq is not included in any of those figures.
It is a good thing this is the Responsibility Era. There is going to be a lot of responsibility to accept.
Monday, March 03, 2003
Julia expresses our thoughts on the latest effort by some California Green Party folks to make sure that nothing they believe in is ever enacted. The Green Party reminds us of a three year old who, upset at not being allowed to eat cookies before dinner, smashes his favorite toy and then complains that he has nothing to play with.
Federalism, The Commerce Clause And Cloning
The Constitution enumerates the powers of the federal government. Each act of Congress must come within one of the enumerated powers to pass constitutional muster. Many of the powers of the Congress are enumerated in Article 1, Section 8 of the Constitution. Among those enumerated powers is the Commerce Clause which gives the Congress the power:
To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.
When we were in law school, an expansive reading of interstate commerce permitted Congress to legislate in almost any area.
Perhaps the most expansive reading of the Commerce Clause power came in Wickard v. Filburn.
Roscoe Filburn operated a small farm in Ohio. He grew a small amount of wheat on his farm. Of the wheat that he grew, some he fed to livestock, some was used for the next year’s seed, his family consumed some and a small amount was sold.
During the New Deal agricultural reforms, a quota system for wheat production was put in place. Mr. Filburn was allotted 11 acres to grow wheat. He in fact planted and grew wheat on 23 acres resulting in the production of 239 bushels of wheat over and above his “allotment.” Mr. Filburn was fined $117 for “overproduction.” He refused to pay and brought suit contending that the federal government had no right to tell him he could not plant and grow wheat on his own property.
The Supreme Court upheld the fine under the Commerce Clause power of Congress:
Whether the subject of the regulation in question was 'production,' 'consumption,' or 'marketing' is, therefore, not material for purposes of deciding the question of federal power before us. That an activity is of local character may help in a doubtful case to determine whether Congress intended to reach it.... But even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as 'direct' or 'indirect.
Based on that reasoning, the Court decided that Mr. Filburn's had a substantial “effect” on interstate commerce and therefore was within the power of Congress to regulate. If Mr. Filburn’s growing of wheat on his own land and consuming that wheat at his own table constituted “commerce among the states” it was difficult to see any limits on Congressional power under the commerce clause.
The Rehnquist court decided to impose some limits on Congress’ authority to regulate under the commerce clause. The first such limitation was announced in United States vs. Lopez.
In Lopez, Congress had passed the Gun-Free School Act of 1990. That act made it a crime for “any individual knowingly to possess a firearm at a place that [he] knows . . . is a school zone.” High School Senior Alphonzo Lopez carried a concealed gun onto school grounds. When the gun was discovered, he was prosecuted under the act.
Finding that Lopez’ activity had no connection with interstate commerce, the court held the Gun-Free School Act unconstitutional:
The Act neither regulates a commercial activity nor contains a requirement that the possession be connected in any way to interstate commerce. We hold that the Act exceeds the authority of Congress "[t]o regulate Commerce . . . among the several States . . .." U.S. Const., Art. I, 8, cl. 3.
In so doing, the court outlined the areas that were within Congressional power to regulate:
First, Congress may regulate the use of the channels of interstate commerce…Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities… Finally, Congress' commerce authority includes the power to regulate those…activities having a substantial relation to interstate commerce … i.e., those activities that substantially affect interstate commerce.
The Court’s next effort to define the limits of Congressional power under the Commerce Clause came in United States vs. Morrison. In Morrison, Christy Brzonkala enrolled as a student at Virginia Tech. She claimed that soon after her arrival on campus, she was attacked and raped by Antonio Morrison.
She eventually sued Morrison under the Violence Against Women Act. Morrison contended that the act was unconstitutional as protecting women against assault was not one of the enumerated powers of Congress and that the commerce clause did not permit such regulation.
The court found that Congress had no authority to regulate violence against women:
Gender-motivated crimes of violence are not, in any sense of the phrase, economic activity. While we need not adopt a categorical rule against aggregating the effects of any noneconomic activity in order to decide these cases, thus far in our Nation’s history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature.
The court noted that if violence against women was within the ambit of the Commerce Clause:
Congress could regulate any activity that it found was related to the economic productivity of individual citizens: family law (including marriage, divorce, and child custody), for example. Under the[se] theories … , it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign. Thus, if we were to accept the Government’s arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate.
After Morrison, commerce cause jurisprudence appears to prohibit any act of Congress taken under its power to regulate interstate commerce unless the activity regulated affects the channels of interstate commerce, the instrumentalities of interstate commerce, or causes a substantial effect on interstate commerce.
All of which brings us to last weeks passage by the House of Representatives of a bill banning both reproductive and therapeutic cloning.
Professor Jack Balkin has a very interesting post questioning whether or not the ban on cloning can pass Constitutional muster under the Commerce Clause. Balkin writes:
There is a constitutional twist to this issue… It is interesting to know what the Court would make of a nationwide ban on human cloning. After all, making babies seems to be about families and family law. There is no requirement in the bill that the cloning be done for a fee or as part of any other economic activity. Ironically, therapeutic cloning-- involving stem cell research to create replacement tissues and organs-- might be the most "economic" version of cloning, since one assumes that these services will be bought and sold like other medical services. But a more plausible argument is that the ban on human cloning is evidence that the Supreme Court's distinction between inherently "economic" and "non-economic" activities simply makes no sense, and the Supreme Court's attempt to limit federal power in Morrison was misguided and the case should be overruled.
We think that an outright nationwide ban on human cloning cannot stand scrutiny under the jurisprudence of Lopez and Morrison. First, unsurprisingly, the regulation of human cloning is not one of the enumerated powers of Congress listed anywhere in the Constitution.
If a ban on human cloning is constitutional, it must be under Congress’ Commerce Clause power. The three criteria listed in Lopez do not apply to a ban on human cloning. We suspect that no one would argue that a ban on cloning is a regulation of the channels or instrumentalities of interstate commerce. Thus, for a ban on human cloning to be within the power of the Congress, it must be as a regulation that has a substantial effect on interstate commerce.
Like the Gun-Free School Zone Act and the Violence Against Women Act, a ban on human cloning has only an attenuated effect on commerce. It would clearly be within the power of Congress to ban the sale or purchase of human embryos or products made from human embryos. It would be within the power of Congress to ban the interstate shipment of human embryos and their products (as the current bill does).
The actual cloning of a human being, however, is not an economic activity. As such, under the doctrine of Lopez and Morrison, Congress is without power to impose a nationwide ban. Any such ban must occur, if at all, at the state level.
We are of two minds on the public policy issues of therapeutic and reproductive cloning bans. First, we oppose a ban on therapeutic cloning. The real world benefits to people afflicted with injury and disease seem to outweigh any moral objections to therapeutic cloning. We see absolutely no reason why a human embryo created for in vitro fertilization purposes and which would otherwise be discarded should not be used to clone new skin for transplant onto a burn victim.
The use of an embryo to create a human being through reproductive cloning is, to us, more problematic. The technology is not yet perfected. There may be a large risk of defects in the cloning process and those defects could cause much suffering.
We are far more sympathetic to a ban on reproductive cloning than a ban on therapeutic cloning. We suspect that most people (whether they favor a ban on both forms of cloning or neither) would agree that reproductive cloning is far more troubling.
Yet, as Professor Balkin notes, a Commerce Clause analysis of bans on therapeutic and reproductive cloning comes to a perverse result. Therapeutic cloning is an economic activity. The products of the human embryos used for such cloning would be bought and sold in the market like other medical supplies, including blood. A ban on therapeutic cloning would, therefore, be subject to a nationwide ban by Congress based on the Commerce Clause power.
Reproductive cloning, on the other hand, while more morally repugnant, has only an attenuated nexus to commerce. As such, it is not subject to a nationwide ban under Congress’s Commerce Clause power and an attempt to ban reproductive cloning is likely to be unconstitutional.
When a constitutional doctrine produces results that seem perverse from both a moral and a public policy point of view, perhaps the Court should rethink its analysis.
Sunday, March 02, 2003
Just for the Record—Budget Deficits Revisited
We once heard a no doubt apocryphal story about a foreign leader. The leader was reputed to have kept only two files. The first file was labeled, “Problems Solved by the Passage of Time.” The second file was labeled, “Problems Not Yet Solved by the Passage of Time.”
Today, we were able to move one issue from the second file to the first. Last fall we posted a series of articles called Just For the Record. In that series we looked at certain measures of economic performance by party of the President for the forty-year period from 1960 through 2000. Links to each entry of the series may be found in this post.
One of the performance measures we used was the budget deficit. That entry is available here. With regard to the budget deficit we concluded as follows:
The twenty years of budgets prepared by Republican presidents increased the national debt by $3.8 trillion. The average yearly deficit under Republican budgets was $190 billion.
The data we used to come to that conclusion is here. Using our newly discovered ability to post tables, the data looks like this:
That post generated some criticism by way of both comment and email. One such criticism of the methodology was that it did not account for Congressional action and therefore did not give an accurate picture of responsibility for the budget deficit.
We felt that criticism to be fair and we began to think about ways to address it. Other interests intervened and the problem remained in the “Not Yet Solved by the Passage of Time” file.
Yesterday, we visited Brad DeLong’s site and found that we could transfer the issue to the “Solve by the Passage of Time” file.
DeLong posts a memo in which he looks at the differences between what the deficit would have been if Presidents Reagan and G.H.W. Bush' s proposed budgets had been enacted without change and the actual budget deficit. He concludes as follows:
The overwhelming proportion of the deficits of the last decade [i.e., the 1980s] were already proposed in President Reagan's and President Bush's original budget submission. There was no explosion of federal spending over and above what the presidents had asked for. More than four-fifths of the 1980s deficits were "presidential." Less than one-fifth were "congressional."
The twelve budgets submitted by Presidents Reagan and Bush produced $3,100,000,000,000 in debt. If Presidential proposals are responsible for 80% of that amount, as Delong’s analysis suggests, more than one half of the total debt incurred in the forty year period is attributable to the Republicans even under the very dubious assumption that President Nixon, President Ford and Republican legislators bear no responsibility whatsoever.
It is nice to move that issue to the "Problems Solved by the Passage of Time" file.