The story is told about how the US Army figured out the best way to armor its airplanes in WWII. Because armor slows planes down, it could not simply be layered on indiscriminately. So engineers had to figure out which parts of the plane needed it most. To find out, they inspected planes returning from battle. Because the planes were presumably being hit by anti-aircraft fire randomly, the parts of the planes that had no bullet holes must have been parts that could not afford to be hit, as planes being hit there were not returning. Those parts (the engines) got the armor.
I heard this story from my college room mate more than fifty years ago, but its logic, like the curious incident of the dog in the night time, stuck with me as a way to approach certain types of problem. One such problem may be finding an "accidental" cure for COVID-19.
Recent reports suggest that chloroquine and hydroxychloroquine, anti-malarials long available generically in the US and used now for autoimmune diseases like rheumatoid arthritis and lupus, may prevent/cure COVID-19. The possibility of prevention (or cure so quickly as to amount to prevention) brings to mind the airplanes and their bullet holes. Everyone who seeks medical care for anything is asked for a list of medications they take. What if, despite the fact that something like .25% of the population takes CQ or HCQ - I'm guessing; the number doesn't really matter so long as it's big enough - almost no one presenting with COVID-19 takes either of those drugs? Wouldn't that raise an inference that the drug is providing protection? And, of course, this bit of induction is not limited to these drugs. A bit of data-mining should reveal any significantly under-represented medication in the COVID-19 population.
Yes, clinical testing needs to be done, but, as Henry David Thoreau wrote, some circumstantial evidence is quite powerful, as when you find a trout in the milk. If people taking HCQ in France are getting better, and people already on CQ or HCQ here (and anywhere else) are not getting sick, We may have a way out of this mess before a real vaccine can be developed, tested, and distributed.
This thought must have crossed the minds of people in a position to look into it. So, if a popular medicine that incidentally prevents COVID-19 infection or symptoms is out there, it will be detected, and we will be back to our lives sooner than most people believe.
Friday, March 20, 2020
Tuesday, March 17, 2020
COVID-19 and the Birthday Party Model
I have long believed that the real reason kids have birthday parties is so that they can trade microbes. When else do we let strangers blow on our food? We let kids share microbes so that they will develop herd immunity. The contagion is contained because the kids' parents are largely immune to the bugs kids bring home. Not all of them, but enough of them for the birthday "system" to be a net plus.
COVID-19 differs from other diseases that are milder in childhood in one important way: adults are not immune to it. But that does not seem to me to rule out allowing young, healthy people, including otherwise healthy pre-senior adults (aka parents of school children) to contract and purge the disease as a way to create herd immunity. Instead of the total social distancing we are practicing, we should only be isolating high-risk populations. The rest of us should be getting on with our lives.
I also wonder how the economic effects of social distancing affect death from all causes. We don’t have universal healthcare, and, even if we adopted it tomorrow, one may expect that the economic dislocations of businesses shutting down will cause an increase in homelessness and death by other causes, including fear of emergency rooms.
My guess is that history will record that we over-reacted to this bug, not in the sense that we worried too much about it, but in that our response was insufficiently nuanced. The social distancing will last much longer than necessary because herd immunity will not be achieved until nearly everyone’s been vaccinated (as with smallpox in its day). We will look back and realize that we could have done more by doing less.
[Update: The herd immunity method was tried in the UK, but data suggested that the hospital system could not handle the surge of severe cases. A policy of case and family quarantine plus social distancing of high-risk populations might in fact reduce total cases, the so-called "area under the curve," but hospital beds create as constraint outside the simple epidemiological math.]
COVID-19 differs from other diseases that are milder in childhood in one important way: adults are not immune to it. But that does not seem to me to rule out allowing young, healthy people, including otherwise healthy pre-senior adults (aka parents of school children) to contract and purge the disease as a way to create herd immunity. Instead of the total social distancing we are practicing, we should only be isolating high-risk populations. The rest of us should be getting on with our lives.
I also wonder how the economic effects of social distancing affect death from all causes. We don’t have universal healthcare, and, even if we adopted it tomorrow, one may expect that the economic dislocations of businesses shutting down will cause an increase in homelessness and death by other causes, including fear of emergency rooms.
My guess is that history will record that we over-reacted to this bug, not in the sense that we worried too much about it, but in that our response was insufficiently nuanced. The social distancing will last much longer than necessary because herd immunity will not be achieved until nearly everyone’s been vaccinated (as with smallpox in its day). We will look back and realize that we could have done more by doing less.
[Update: The herd immunity method was tried in the UK, but data suggested that the hospital system could not handle the surge of severe cases. A policy of case and family quarantine plus social distancing of high-risk populations might in fact reduce total cases, the so-called "area under the curve," but hospital beds create as constraint outside the simple epidemiological math.]
Tuesday, March 3, 2020
Obamacare is Still Constitutional
Having guessed right last time about SCOTUS's take on the Obamacare individual mandate, I am emboldened to guess again now that the Court has agreed to hear the latest challenge. Only this time, I'm afraid I may only be predicting what the dissenters will say.
In NFIB v. Sibelius, Justice Roberts opined, correctly in my view, that the individual mandate in the ACA, which imposed a penalty tax on those who don't have health insurance, was a valid use of the tax power and was, therefore, Constitutional. At the same time, Roberts's opinion included dictum to the effect that the mandate was not authorized by the interstate commerce clause. Seizing on the latter dictum, the idiot Republicans in charge of the Senate came up with a brilliant idea: reduce the penalty tax to zero. That way, there would be no tax on which the supporters of the mandate could hang their hats.
Congress eliminated the penalty in the tax cut act passed in 2017. They did not simply repeal the ACA, because, under the Senate's rules, they could reduce taxes by a simple majority, whereas actually repealing the law would require a vote that could be filibustered. (Why Democrats want to get rid of the filibuster is beyond me.)
In their cynical attempt to kill the ACA by cutting its femoral artery, the GOP has, in my view, instead repealed the mandate and left the ACA legally, if not practically, unscathed. Without a penalty, there is no constitutionally cognizable mandate, and, without a mandate, there is no case. The resulting statute may not make sense, and it may not be actuarially sound, but it is what Congress has wrought, and it imposes on no one any burden the Constitution forbids. So, what's the problem?
The district court judge who ruled that the law was rendered unconstitutional by removal of the penalty tax wrote, in effect, that the mandate:
Neither of these findings can withstand much scrutiny. Congress does not create wrongs without remedies. If there is no sanction for non-compliance with the mandate, the mandate becomes "surplusage," words that Congress would have removed if it were doing a better job of drafting. There is no rational basis for leaving the mandate in the law without a penalty. There are some irrational reasons - e.g., so that it could be declared unconstitutional - but SCOTUS should (and I hope will) refuse to accept, without an actual Congressional finding, that Congress intended to pass an unconstitutional law.
Sound jurisprudence demands instead that the Court simply declare the mandate void, rather than "accuse" Congress of intentionally sabotaging its own act. Declaring the mandate void would obviate people's duty to obey it, providing complete relief to those poor sots who feel obliged to buy insurance despite the absence of any penalty for not doing so. (Obeying a law that Congress has implicitly repealed does not cause the law not to have been repealed.)
Removal of the penalty also makes untenable the court's finding that the surviving "unconstitutional" mandate is an integral part of the ACA. No doubt, the mandate was an integral part of the ACA when violating it gave rise to a tax. But, as they say, that was then, and this is now. If Congress removes the penalty without reasserting the centrality of the mandate, it must also be presumed to have "reconsidered" the centrality of the mandate.
The district court found that Congress did retain its finding that the mandate was an integral part of the law. That conclusion was based on Congress's failure to remove the language in the ACA that says so. But, as the judge said, removing the language would have violated Senate rules. Therefore, no more can be inferred from failure to remove the language declaring the mandate integral than can be inferred from failure to remove the mandate itself. If Congress commits itself to drafting poorly, all the Courts can do is interpret what is left. In this connection, it's worth noting that the whole section of the ACA defending the mandate was predicated on Congress's power to regulate interstate Congress. Arguably, SCOTUS voided the entire section when it said in NFIB that the mandate was not supported by that clause.
The district court judge recognized that removing the penalty would likely undermine Congress's intent in passing the ACA. But if that's the case, the repeal of the penalty should be regarded as repeal of the ACA, something the Senate rules do not permit, and so, cannot have been the Congress's intent. Yes, there's a certain amount of "gotcha" reasoning here. I am urging the Court to take Congress at its (implied) word that it intends its acts to be law, so the least possible damage should be done to a defective law to enable as much of it as possible to remain law.
In this case, the least damage is done by treating removal of the penalty as nullification of the mandate, with whatever practical consequences that may have. If the district court is right that the amended law does not work without a penalty tax, Congress is free to restore the penalty or create some other subsidy to make the ACA's pre-existing conditions rules affordable. That Congress made the ACA stupid is not reason enough to infer either that it intended to repeal the law, in violation of its own rules, or render the law unconstitutional, in violation of the Constitution.
Perhaps the ACA's opponents should have argued that the surviving mandate opens non-compliers up to civil liability, some sort of class action of payers against non-payers for the damage done to the healthcare system by their failure to comply with Federal law. Such liability would give the mandate teeth, which would subject it to the Interstate Commerce test that it failed last time around. Thing is, the mandate is in the Internal Revenue Code. That's no place to find substantive private law. I will, therefore, defer consideration of civil liability until someone raises it.
In short, the cynical GOP assholes who control the US Senate have put SCOTUS in a bind. The Court must hold that the 2017 amendment to the ACA (i) implicitly repealed the ACA, contrary to Senate rules, (ii) intentionally rendered its own law unconstitutional, contrary to its raison d'etre under Article I of the Constitution, or (iii) implicitly removed the mandate, but did not repeal the entire ACA or make it unconstitutional. That choice seems easy to me. But maybe that's just me.
In NFIB v. Sibelius, Justice Roberts opined, correctly in my view, that the individual mandate in the ACA, which imposed a penalty tax on those who don't have health insurance, was a valid use of the tax power and was, therefore, Constitutional. At the same time, Roberts's opinion included dictum to the effect that the mandate was not authorized by the interstate commerce clause. Seizing on the latter dictum, the idiot Republicans in charge of the Senate came up with a brilliant idea: reduce the penalty tax to zero. That way, there would be no tax on which the supporters of the mandate could hang their hats.
Congress eliminated the penalty in the tax cut act passed in 2017. They did not simply repeal the ACA, because, under the Senate's rules, they could reduce taxes by a simple majority, whereas actually repealing the law would require a vote that could be filibustered. (Why Democrats want to get rid of the filibuster is beyond me.)
In their cynical attempt to kill the ACA by cutting its femoral artery, the GOP has, in my view, instead repealed the mandate and left the ACA legally, if not practically, unscathed. Without a penalty, there is no constitutionally cognizable mandate, and, without a mandate, there is no case. The resulting statute may not make sense, and it may not be actuarially sound, but it is what Congress has wrought, and it imposes on no one any burden the Constitution forbids. So, what's the problem?
The district court judge who ruled that the law was rendered unconstitutional by removal of the penalty tax wrote, in effect, that the mandate:
(i) survived removal of the penalty even though there is no legal consequence to ignoring it,
(ii) is, by the logic of the opinion in NFIB, unconstitutional absent a tax to back it up, and
(iii) is an integral part of the Act's structure, so that in being struck down, it takes the entire ACA with it.The district court's opinion has two key findings. First, the court determined that removing the penalty was not the same thing as removing the mandate, because the language imposing the mandate is still in the Internal Revenue Code (the provision was obviously not drafted by tax lawyers), and so some people still feel obliged to obey it. A handful of individual plaintiffs were actually dredged up to claim that they bought insurance out of respect for the mandate in the amended law. Second, and most crucially, the court found that the mandate was an integral part of the ACA structure and so its failure rendered the whole act void.
Neither of these findings can withstand much scrutiny. Congress does not create wrongs without remedies. If there is no sanction for non-compliance with the mandate, the mandate becomes "surplusage," words that Congress would have removed if it were doing a better job of drafting. There is no rational basis for leaving the mandate in the law without a penalty. There are some irrational reasons - e.g., so that it could be declared unconstitutional - but SCOTUS should (and I hope will) refuse to accept, without an actual Congressional finding, that Congress intended to pass an unconstitutional law.
Sound jurisprudence demands instead that the Court simply declare the mandate void, rather than "accuse" Congress of intentionally sabotaging its own act. Declaring the mandate void would obviate people's duty to obey it, providing complete relief to those poor sots who feel obliged to buy insurance despite the absence of any penalty for not doing so. (Obeying a law that Congress has implicitly repealed does not cause the law not to have been repealed.)
Removal of the penalty also makes untenable the court's finding that the surviving "unconstitutional" mandate is an integral part of the ACA. No doubt, the mandate was an integral part of the ACA when violating it gave rise to a tax. But, as they say, that was then, and this is now. If Congress removes the penalty without reasserting the centrality of the mandate, it must also be presumed to have "reconsidered" the centrality of the mandate.
The district court found that Congress did retain its finding that the mandate was an integral part of the law. That conclusion was based on Congress's failure to remove the language in the ACA that says so. But, as the judge said, removing the language would have violated Senate rules. Therefore, no more can be inferred from failure to remove the language declaring the mandate integral than can be inferred from failure to remove the mandate itself. If Congress commits itself to drafting poorly, all the Courts can do is interpret what is left. In this connection, it's worth noting that the whole section of the ACA defending the mandate was predicated on Congress's power to regulate interstate Congress. Arguably, SCOTUS voided the entire section when it said in NFIB that the mandate was not supported by that clause.
The district court judge recognized that removing the penalty would likely undermine Congress's intent in passing the ACA. But if that's the case, the repeal of the penalty should be regarded as repeal of the ACA, something the Senate rules do not permit, and so, cannot have been the Congress's intent. Yes, there's a certain amount of "gotcha" reasoning here. I am urging the Court to take Congress at its (implied) word that it intends its acts to be law, so the least possible damage should be done to a defective law to enable as much of it as possible to remain law.
In this case, the least damage is done by treating removal of the penalty as nullification of the mandate, with whatever practical consequences that may have. If the district court is right that the amended law does not work without a penalty tax, Congress is free to restore the penalty or create some other subsidy to make the ACA's pre-existing conditions rules affordable. That Congress made the ACA stupid is not reason enough to infer either that it intended to repeal the law, in violation of its own rules, or render the law unconstitutional, in violation of the Constitution.
Perhaps the ACA's opponents should have argued that the surviving mandate opens non-compliers up to civil liability, some sort of class action of payers against non-payers for the damage done to the healthcare system by their failure to comply with Federal law. Such liability would give the mandate teeth, which would subject it to the Interstate Commerce test that it failed last time around. Thing is, the mandate is in the Internal Revenue Code. That's no place to find substantive private law. I will, therefore, defer consideration of civil liability until someone raises it.
In short, the cynical GOP assholes who control the US Senate have put SCOTUS in a bind. The Court must hold that the 2017 amendment to the ACA (i) implicitly repealed the ACA, contrary to Senate rules, (ii) intentionally rendered its own law unconstitutional, contrary to its raison d'etre under Article I of the Constitution, or (iii) implicitly removed the mandate, but did not repeal the entire ACA or make it unconstitutional. That choice seems easy to me. But maybe that's just me.
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