Thursday, July 15, 2010

The Coming Collision Between the Doctors and the State

In my June 1, 2010 post, The Coming Collision between the Doctors and the State, I showed how a long established government power intended for one purpose is becoming an instrument of terror to force doctors into submission to government-run medicine. Government licensure is the practice of forcing millions of people in a myriad of occupations to get permission from the state in order to earn their living in the line of work of their choice. In Florida and Massachusetts, politicians are attempting to force doctors to conform to the arbitrary dictates of the state as a condition of their medical licenses.

Now we have another long established government power being brought to bear on doctors - this time in Idaho. The federal Antitrust Laws were created beginning in the 1890s for the alleged purpose of reining in the “excesses” of capitalism. But in reality, the antitrust laws are a conglomeration of unjust, contradictory statutes that amount to an economic dictatorship operating within the confines of a free society. Under antitrust, virtually any business practice can be deemed illegal at any given time. A practice found legal in one case can be found illegal in another.

Antitrust represents unconstitutional ex post facto law, and a reversal of a key American ideal – a government of laws and not of men. New York City business lawyer Robert S. Getman calls antitrust “a form of ‘legalized’ terrorism”. Duke University’s Gary Hull calls antitrust “a political cancer, clearly alien to the founding principles of this country”. The Wall Street Journal’s Holman W. Jenkins calls antitrust enforcers “leech bearers” who exhibit “not a whit of due process” and act as “prosecutor, judge and jury”.

Who created the antitrust laws? They are the brainchild of the conservative “defenders” of free markets. The first major American “trustbuster” was conservative hero and McCain idol Theodore Roosevelt. Said philosopher Ayn Rand of antitrust:

“The Antitrust laws—an unenforceable, uncompliable, unjudicable mess of contradictions—have for decades kept American businessmen under a silent, growing reign of terror. Yet these laws were created and, to this day, are upheld by the ‘conservatives,’ as a grim monument to their lack of political philosophy, of economic knowledge and of any concern with principles.”

Now, the conservatives’ antitrust laws are being leveled against the doctors in Idaho – by the thugs of socialized medicine. “Price fixing” is one of the utterly undefinable antitrust “crimes” that has the effect of abolishing all constitutional limits on the Justice Department’s prosecutorial lawyers. In an article I discovered through FIRM, S. M. Oliva reports in the Christian Science Monitor on government actions that would fit nicely into George Orwell’s 1984.

On May 31, 2010, the federal Antitrust boys, backed by the Republican State Attorney General, forced a settlement on a group of Idaho doctors accused of “price fixing”. Their penalty – accept government price controls. There were two alleged “conspiracies” involved in the charges. Oliva writes:

“In the first conspiracy, through a series of meetings and other communications, the orthopedists agreed not to treat most patients covered by workers’ compensation insurance.

“They entered into a group boycott in order to force the Idaho Industrial Commission (which sets the fee schedule) to increase the rates at which orthopedists were paid for treating injured workers.

“In the second conspiracy, all of the defendants, except [one], and other conspiring orthopedists agreed to threaten to terminate their contracts with Blue Cross of Idaho. They jointly threatened to terminate their contracts to force Blue Cross of Idaho to offer better contract terms to orthopedists.”

As in the licensure cases, a group of doctors – American citizens – endeavored to protest a government action, in this case its price control policies. They were fighting to exercise their right to set their own fees. In classic Orwellian fashion consistent with Antitrust “logic”, “the Justice Department has unambiguously stated that refusal to accept government price controls is a form of illegal 'price fixing.' ”

The article goes on to document a number of terrifying aspects to this case:

For one, it was handled by the DOJ, which has criminal prosecutorial powers, rather than the FTC, which does not.

Second, the premise was established that “Government prices are market prices.” (Now you know the true meaning behind Obama’s pro-free market lip service.)

Third, “the Antitrust Division has linked a refusal to accept government price controls with a refusal to accept a ‘private’ insurance company’s contract offer. This leaves little doubt that antitrust regulators consider insurance party contracts the equivalent of government price controls.” This confirms what I and others have been saying – ObamaCare is fascist and the insurance industry is private in name only.

Fourth, the DOJ has the extraordinary powers granted to it under the Patriot Act, another conservative Republican statist gift. Among these are the power to “seek wiretaps of physicians’ phones and computers”. “The potential exposure of your physician’s confidential records — including your medical records — is limitless.”, reports the Monitor.

And, in an update to the article, the Monitor reports on another DOJ action that is perfectly consistent with a dictatorship, “a naked censorship order that restrains the physicians” from communicating with other physicians on anything the DOJ lawyers decree as off limits to freedom of speech. Such is the nature of the awesome, arbitrary power of the Antitrust laws that is being brought to bear on the doctors. The “conspiracy” charges were brought under the 1890 Sherman Act.

Richard E. Ralston, Executive Director for Americans for Free Choice in Medicine, has a piece in the Orange County Register entitled: Feds' boot on your doctor's neck. He writes:

“In the Orwellian world of the Justice Department, if physicians decide on a price, they are engaged in a criminal conspiracy, and if the government forces a price on everyone, that is a 'market price'.

“When the clear meaning of words is replaced with government fiat in this way, all limits on arbitrary government power and its use of force are destroyed.”

As Ralston writes, Obama mouthpieces like the NY Times set the ideological table, attacking physicians as "unabashed profiteers” because they "have been complicit in driving up health care costs." How? – They "largely decide what medicine or surgical treatments are needed.”

The Times all but calls doctors Enemies of the State - for exercising their independent judgement on behalf of the patient! Under ObamaCare, according to Ralston:

“What President Obama calls health care 'reform' will, over the next few years, make it quite clear who will decide which medicine or surgical treatments you need. It will not be your physician.

“As the government becomes the exclusive authority over the cost of health care, it will inevitably become the exclusive authority over the treatments permitted in health care.”

Dr. Paul Hsieh warns in an Objective Standard article that “U.S. politicians are working feverishly to prevent doctors from upholding the Hippocratic oath” by forcing physicians to conform to government edicts instead of their own judgement.

How can this be, in a free country? Because, the building blocks of tyranny are embedded throughout our governmental structure. The Antitrust laws are one such building block.

In the totalitarian world of 1984, language is not a means of communication, but the means of destroying it:


…Trumpets the Ministry of Truth. (page 26)


…Trumpets the Antitrust Division of the Justice Department.

This is ObamaCare’s true nature. This is Antitrust’s true nature.

Freedom rests on Objective law. Tyranny rests on the opposite premise.

As reported by NJ Star-Ledger columnist Bob Braun, a recent Supreme Court decision overturned another vague law. In a rare and heartening decision, and by a unanimous 9-0 vote, the Court overturned the so-called "honest services" statute of a federal anti-corruption law. The reasons are instructive. Liberal Justice Ginsburgh called the law too "amorphous.’’
Conservative Justice Scalia concurred, asserting the statute “fails to define the conduct it prohibits [and] does not answer the question, `What is the criterion of guilt?’"

“That’s ground zero in constitutional law. The law must say what is illegal. The core of due process of law. Otherwise, anyone can be accused of anything and, if the prosecution is persuasive, anyone can be convicted”, wrote Bob Braun.

This is Antitrust in spades, and this is the kind of power the Obama government is using to bludgeon the doctors into submission to the state. The same logic the high court based that decision on applies to Antitrust. Justice is impossible under the jackboots of government lawyers wielding arbitrary powers. A law that started out targeting the alleged “robber baron” titans of big business has become a tool of the political tyrants of “healthcare reform”.

There’s a small reed of hope here, though. The Monitor’s S. M. Oliva concludes his article with this:

“Since this is an DOJ case, it is subject to final approval by a federal judge in Idaho. There’s a mandatory 60-day public comment period, after which the judge will almost certainly rubber stamp the order as being ‘in the public interest.’ Still, there’s at least an opportunity to express some serious dissent to what’s transpired here.

“It turns out the Idaho physicians hired the guy who used to run the Antitrust Division’s litigation department — and developed the government’s anti-physician antitrust rules — to represent them.”

And, there’s an opportunity for the doctors’ case to reach the Supreme Court. If it does, perhaps the court will still be in the mood to strike down non-objective law.

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