Tuesday, September 29, 2009

How To Bury Acorn

At long last, it has become public knowledge that Association of Community Organizations for Reform Now (“ACORN”) is liberal-protected, taxpayer-money grubbing, insidiously destructive of democracy, and a tool of the worst political elements in America--and has friends in very high places.

The chutzpa shown by this corrupt tax-exempt organization almost defies comprehension, including most recently its “how can this have happened?” reaction to the fearless “pimp/prostitute” undercover reporting by James E. O’Keefe, III and Hannah Giles.

A further measure of how out of touch with reality ACORN is, and apparently its advisors as well, is the ill-conceived, indeed potentially suicidal, lawsuit commenced last week by the organization in a Maryland court against O’Keefe and Giles (and Andrew Breitbart).

If the defendants play their cards right, they can not only successfully defend the case, but in the process dig deep into ACORN’s bowels and expose not only the corruption that’s long been there but also all those who have aided and abetted it.

The defendants must do two things, but not do two others.

First, within their legal defense structure they must set up a “discovery team” whose sole task will be to obtain as much open-source factual data about ACORN and on the basis of that information employ the three “discovery” tools provided by Maryland law: (1) notices/subpoena’s to produce documents and other materials, (2) depositions, and (3) requests for admissions. That team should consist of lawyers not responsible for other aspects of the case.

Obtainable by (1) is virtually everything in ACORN’s possession or under its control. All the defendants have to do is ask for it, and then the burden shifts to ACORN to convince a judge to issue a “protective” order as to some of what has been sought. This is not easy.

As to (2), depositions can be taken of not just the plaintiffs (ACORN, the organization, and the two employees who were filmed), but of anyone else, and need not be limited to obtaining actual evidence. Depositions may be sought in aid of obtaining information which, in turn, might lead to actual evidence.

Upon receipt of requests for admissions, the plaintiffs can (a) admit, (b) deny, or (c) claim they lack sufficient information to do either. No matter what they do, the result is to further lock in facts.

Second, the defendants must counterclaim—not simply defend. They must make the litigation a two-way street, rather than leave it as a one-way street. If they do the latter, ACORN cannot lose—all they can do is not win, which is not the same thing as losing (spending money on losing is not losing; ACORN has plenty of money). In other words, the defendants through a counterclaim must give ACORN something to lose beyond the disclosures the former can obtain if they simply defend. Such counterclaims are available, though I will not mention them here.

As important as these two tactics are, equally important are the two things the defendants should not do.

First, even though the Maryland statutes under which ACORN has sued are not applicable to what O’Keefe and Giles did, the defendants should not move to dismiss the case either for failure to state a claim or, too soon, because they are entitled to summary judgment—even though prevailing on either motion would end the case in the defendants' favor. The object should be to keep ACORN in court as long as possible, and to obtain as much discovery as the law allows.

Second, for the same reason, the defendants should not invoke the Maryland “SLAPP” statute (for an explanation, Google "Maryland" and "SLAPP"). Also, that statute is largely untested and lacks clarity as written.

ACORN has handed not just the three defendants, but the entire American public, a golden opportunity to pull back the curtain which until now has hidden that organization’s malevolent plot to usurp taxpayer money, move forward the leftwing agenda, and in the process undermine our democracy.

That gift should not be squandered by cold feet or a mishandled defense.

Sunday, September 20, 2009

I Was Asked If The Questioner Has "A Constitutional Right To Life, Liberty And The Pursuit Of Happiness"

The following is my abbreviated email answer.

The Declaration of Independence is not part of the Constitution, no matter how the former’s principles may have influenced the latter. (Jefferson’s explicit reference to a/the “Creator” was understandable, though unfortunate.)

The Constitution delegates power from “We the People” to the federal government.

Unfortunately, it is not a perfect document.

Its flaws included recognition of slavery, conscription—and, per the objections of many at the time, no explicit recognition of rights.

The latter problem was mostly rectified in the Bill of Rights.

Then came John Marshall in Marbury v. Madison, establishing judicial review, by itself not a bad thing. (Like pasta is by itself not a bad thing, unless you eat too much.)

Then came two things, especially in the Twentieth Century: (1) Roosevelt’s New Deal, and (2) the “Living Constitution” philosophy—each rooted in Ayn Rand’s trilogy of altruism-statism-collectivism.

Now I get to my answer to your original question, “Do I [you] Have A Constitutional Right To Life, Liberty And The Pursuit Of Happiness?”

For openers, a government (i.e., an organized group of people holding a monopoly on the use of physical force) can only do two things regarding “rights”—recognize them or violate them.

Thus, the Constitution delegates power to the federal government, the first nine amendments seek to restrain that power by recognizing rights (enumerated 1-8 and unenumerated 9), and acknowledges that the powers not delegated to the federal government are reserved to the states or the people (10).

Unfortunately, the courts, especially the Supreme Court of the United States, has perverted much of this arrangement because most of the justices have been altruists-collectivists-statists, and thus validated that sort of legislation coming out of Congress and that sort of conduct coming out of the executive branch.

Thus, in my earlier answer to your question, I distinguished between power and right. I said that the federal government today has the power (e.g. Roe, TARP—and on and on), as do the states (e.g., marriage, divorce—and on and on) but not the right. My use of the word “power” should not have been construed by you as approval, only as a recognition that that’s how it is. Government’s possession and exercise of its mostly appropriately delegated powers should not be confused with its usurped, judicially-approved powers—virtually all of which violate rights.

So, I have not said, as you say I did, that “the Constitution gives the Federal Government power over my life, liberty and pursuit of happiness,” though today’s government does, but not because of the Constitution. Indeed, thanks to Congress and the courts, in spite of the Constitution.

You say that your “copy of the Constitution may not contain the latest additions and revisions.” That’s correct, but you’re looking in the wrong place. You should look at the judicial annotations.



[See www.henrymarkholzer.com for further elaboration]

Wednesday, September 16, 2009

John Galt Snatches Another Former Victim

The author of the following essay, a psychiatrist, was a flight surgeon for a NASA space shuttle crew. The italics, capital letters and bold face appear in the original.



A number of emailers have written wondering why I haven't commented on Obama's health care plans for America.

Doug Ross highlights an ad/op-ed piece by Nicolas Kristof, part of the massive PR campaign in the Age of Obama to make socialized medicine palatable to the American public. Kristof calls people like me "scaremongers;" and defiantly says, "This time we won't scare." But he doesn't have to worry.

I'm done.

My entire professional life as a physician and psychiatrist I have been exceptionally vocal about the prospect of government medicine here in the US. I have given impassioned speeches (when I was younger); written essays in medical journals and elsewhere; and talked until I am blue in the face to anyone and everyone about the horrors of socialized medicine and government interference in the health care system of this country. Once it would have seemed impossible that I would ever want to quit medicine; to stop practicing psychiatry.

I have watched with dismay as every year we have inched closer and closer to the Democrats and the left's goals; goals which I firmly believe will completely destroy American medicine. I have watched up close and personal the utter soul-destroying consequences to both patients and doctors alike, of the pervasive cultural collectivist and looter thinking in my specialty. Every time this madness is killed, it just doesn't stay dead. Like some kind of putrefying zombie, the left just keeps resurrecting it. Logic doesn't matter. Facts don't matter.

Let's face it. To the zombies of the left, reality doesn't matter. With President Postmodern in office, aided and abetted by zombie hordes in Congress; why should I pretend anymore that it does?

This time around, I JUST DON'T CARE ANYMORE. If that's what people want, so be it.

I'm done. If Congress passes Obama's destructive zombie health plan in any form, I quit.

I will simply not practice medicine anymore. I will take my psychiatry books and my years of experience and do something else. I used to wait tables when I was in college. It's an honest living and Obama isn't interested for the time being in nationalizing restaurants--yet.

Let me be clear. I don't believe that people have a "right" to health care; because, what advocating such a "right" basically means is that you believe you have a "right" to my mind; you have a "right" to my professional competence; i.e., you have a "right" to enslave me.

Having chosen to work primarily in the public sector most of my life, I have watched this entitlement and victimhood mentality grow to incredible proportions in parallel with number of laws, regulations, administrators, and oversight agencies. I have watched the decline of personal responsibility and the rise of endless demands and impossible clinical and psychosocial conundrums that I am expected to solve, even if my patient has no desire to change. I have been demoted to the near-mindless activity of pushing pills to the point that I understand why my collegues see every clinical situation as a biological malfunction--the old adage that says, to a hammer everything looks like a nail, comes to mind. Psychiatrists are the mental health profession's hammer; and drugs are the nail. And, the same powers that tell me to prescribe drugs, warn me against the evil of working too closely with any of the drug companies, for fear I might be corrupted, God forbid, by the dastardly profit motive.

I have watched as the quality of care has inevitably deteriorated even as spending went up. I have watched the system abuse patients and doctors alike--to the point that the frustration level just keeps going up and is simply not worth it anymore.

I quit my memberships in the AMA and APA some years back when I realized that they were not really in it to make things better for doctors or patients. Perhaps at one time they were real advocates for both, but now they are like most of those supposedly "capitalist" businesses--like AIG and all the others-- who willingly feed at the government trough and can't get enough of that yummy government pork. They sold themselves long ago--in both areas of clinical and research medicine-- in order to have a place at Big Government's table.

So, that is my answer to the emails; and why I don't intend to write anything further on the subject. We will all see what happens when and if the zombies take over health care in this country and make it all like Medicare and Medicaid....and GM and Fannie Mae and etc. etc. I expect a Zombie Health Czar (Barney Frank would be perfect) will be appointed any day now. Someone who will have control over doctors' compensation and drug company profits. Someone who won't have to answer to the public who can control implementation of any aspect of the zombie plan that needs to bypass intelligent scrutiny.

UPDATE: Can you imagine the over-the-top leftist hysteria and lunatic rantings about fascism if the Bush Administration had done something like this? Guess their biggest fear was that Bush would beat them to implementing a fascist state.Can't wait to see what exciting plans they have for Republican or conservative physicians in the new Obamatopia.

UPDATE II: It just keeps getting worse and worse; more and more unbelievable. Now we know who the Obama Administration considers the real terrorists, don't we? How long before it's a criminal offense to oppose the One? As Andy McCarthy notes, ". . . pretty scary arrogance down there at the White House, no?"

Sunday, September 6, 2009

The Faces Of Rationed Medical Care

Alida Valli and Rossano Brazzi

In this essay the living (Barack Obama), the dead (Ayn Rand) and two fictional characters (Kira Argounova and Leo Kovalensky) come together to reveal the faces of government-controlled, necessarily rationed medical care.

There is no longer any doubt that the health care “reform” being promoted by Obama and his Democrat Party acolytes amounts to an eventual government monopolization of American medicine, with inevitable rationing of medications, procedures and operations which will fall most heavily on the elderly. Indeed, Pat Buchanan recently made the powerful case that simply on the basis of population statistics, even with a lighter hand of government on the medical care valve than is currently proposed, elder care will be heavily triaged in favor of the young.(http://townhall.com/columnists/PatBuchanan/2009/08/21/sarah_and_the_death_panels).

In her recent article “Ayn Rand and Socialized Medicine” (http://www.theatlasphere.com/columns/090820-holzer-rand-socialized-medicine.php), Erika Holzer argues that fiction is a powerful, albeit underutilized weapon in ideological battles: “The Ayn Rand novel so powerfully written that it causes the reader to ‘personally experience’ the horrors of bureaucrat-controlled health care is her first novel, We the Living. Whether or not you’ve ever read We the Living — first published in 1936 — I urge you to read (or re-read) it now. Better yet, read the book and [then] view the restored English-subtitled Italian-made movie of the same name.”

So far, the battle over Obamacare has been limited to non-fiction and editorial cartoons.

Fiction, let alone film, has not been deployed on the battlefield. Now, with the release of Ayn Rand’s We the Living on DVD, it can, and should, be. (For information about how to order the new DVD and a documentary about the film, see http://www.wethelivingmovie.com/.)

The jacket copy of Random House’s sixth printing of We the Living describes Rand’s novel as a portrayal of “the impact of the Russian Revolution on three human beings who tried to shape their own destinies: Kira, who wanted to be a builder, and the two men who loved her—Leo, an aristocrat, and Andrei, a Communist. But she was living in a totalitarian state.”

The doctor asked: “Are you his wife?”

Kira hesitated, then answered: “No.”

The doctor said: “I see.” Then, he added: “Well, I suppose you have a right to know it. Citizen Kovalensky is in a very bad condition. We call it incipient tuberculosis. It can be stopped—now. In a few weeks, it will be too late.”

“In a few weeks—he’ll have—tuberculosis?”

“Tuberculosis is a serious disease, citizen. In Soviet Russia—it is a fatal disease. It is strongly advisable to prevent it. If you let it start—you will not be likely to stop it.”

“What . . . does he need?”

“Rest. Plenty of it. Sunshine. Fresh Air. Food. Human food. He needs a sanatorium for this coming winter. One more winter in Petrograd would be as certain as a firing squad. You’ll have to send him south.”

She did not answer; but the doctor smiled ironically, for he heard the answer without words and he looked at the patches on her shoes.
“If that young man is dear to you,” he said, “send him south. If you have a human possibility—or an inhuman one—send him south.”

To save the life of the man she loved, Kira began her quest to obtain medical treatment for Leo.

In the first State hospital she visited, the official in charge told her: “A place in a sanatorium in the Crimea? He's not a member of the Party? And he's not a member of a Trade Union? And he's not a State employee? You're joking, citizen.”

In the second hospital, the official said: “We have hundreds on our waiting list, citizen. Trade Union members. Advanced cases.... No, we cannot even register him."

In the third hospital, the official refused to see her.

There were lines to wait in, ghastly lines of deformed creatures, of scars, and slings, and crutches, and open sores, and green, mucous patches of eyes, and grunts, and groans, and—over a line of the living—the smell of the morgue.

There were State Medical headquarters to visit, long hours of waiting in dim, damp corridors that smelt of carbolic acid and soiled linen. There were secretaries who forgot appointments, and assistants who said: “So sorry, citizen. Next, please”; there were young executives who were in a hurry, and attendants who groaned: “I tell you he’s gone, it's after office hours, we gotta close, you can't sit here all night.”

At the end of the first two weeks she learned, as firmly as if it were some mystic absolute, that if one had consumption one had to be a member of a Trade Union and get a Trade Union despatchment [referral] to a Trade Union Sanatorium.

There were officials to be seen, names mentioned, letters of recommendation offered, begging for an exception. There were Trade Union heads to visit, who listened to her plea with startled, ironic glances. Some laughed; some shrugged; some called their secretaries to escort the visitor out; one said he could and he would, but he named a sum she could not earn in a year.

She was firm, erect, and her voice did not tremble, and she was not afraid to beg. It was her mission, her quest, her crusade.

She wondered sometimes why the words: “But he's going to die,” meant so little to them, and the words: “But he's not a registered worker,” meant so little to her, and why it seemed so hard to explain.

She made Leo do his share of inquiries. He obeyed without arguing, without complaining, without hope.

She tried everything she could. She asked Victor for help. Victor said with dignity: “My dear cousin, I want you to realize that my Party membership is a sacred trust not to be used for purposes of personal advantage.”

She asked Marisha. Marisha laughed. “With all our sanatoriums stuffed like herring-barrels, and waiting lists till the next generation, and comrades workers rotting alive waiting—-and here he's not even sick yet! You don't realize reality, Citizen Argounova.”

This “reality”—of government monopolization of medical care, of its favored allies receiving preferential treatment, of the disfavored being shunted aside, of the unconnected left to perish—is what Obamacare will inevitably lead to in the United States of America.

But, ironically, a possibility for Leo to survive did exist under the Soviet system, at least in theory, which will probably not be available under Obamacare.

It took a month, but at the end of a month, she was convinced that the door of the State sanatoriums was locked to Leo and that she could not unlock it.

There were private sanatoriums in the Crimea. Private sanitoriums cost money.

I will not give away Rand’s resolution of this part of the plot line, but instead simply note that informed opinion in the United States today believes that Obama’s ultimate plan is to monopolize entirely all medicine and pharmaceuticals under government control. Which is to say, monopolize entirely under government control the power to decide who lives and, especially, who dies: criminals, the elderly, Down syndrome fetuses, “three generations of imbeciles” (see http://henrymarkholzer.blogspot.com/2009/08/yesterday-imbeciles-today-elderly.html).

In the scenes quoted above from her novel, Rand has written eloquently of what such monopolization did to Kira Argounova’s quest to save her lover’s life—words which can, and should, be used in the ideological/political battle that we’re now fighting.

But there is an even stronger tool available.

As Erika Holzer mentioned (http://www.theatlasphere.com/columns/090820-holzer-rand-socialized-medicine.php), We the Living is also a motion picture. In that film the scenes quoted above, and a similar one which precedes it, are depicted with heart-wrenching dramatic effect. They can be viewed at We the Living-Depictions of state-run health care.

Those who would fight Obamacare and all that it necessitates and implies—and do so with maximum effectiveness through the use of powerful moving images—should assist all of us in promptly disseminating this video throughout the Internet.