House of Eratosthenes

The people at Zoll Medical Corporation saw a ray of hope in January when Scott Brown was elected senator from Massachusetts. Located in Chelmsford, 30 miles outside Boston, Zoll is the nation’s leading manufacturer of heart defibrillators, which save thousands of heart attack victims each year. Back in January, as the Senate race was raging, both House and Senate Democrats wanted to impose a crippling new tax on the makers of medical devices, Zoll included, to help pay for Obamacare.

The total tax on the industry would be about $2 billion a year, or $20 billion over the next decade. Companies watched nervously as lawmakers pushed ahead, first the House and then the Senate. But then Brown was elected on the promise to be the crucial Republican vote to stop health care reform. For Zoll, things were looking up.

Not anymore. The bill passed by the House Sunday night contains a particularly damaging version of the $20 billion hit for the medical device industry, meaning Zoll and other medical device makers could well be headed for hard times.

“We believe that the tax will cost us somewhere between $5 million and $10 million a year,” says Richard Packer, Zoll’s chairman and chief executive officer. “Our profit in 2009 was $9.5 million.”

My letter to my senators, on a different subject which was the S&L bailouts Fannie/Freddie mess, politely inquired if the motto for the 111th Congress was “Our approach to any given problem is to make sure no one can earn any money providing a solution to it.” Now, I think I have my answer.

A somewhat less thoughtful deliberation takes place here:

Should We, The People try to strike the law down? Charles Krauthammer is not optimistic:

Neo-Neocon (hat tip to Gerard once again) provides a much needed sanity check:

I hear this defeatist attitude nearly everywhere. I could understand it if the nay-saying came from Democrats as a taunt, but it comes from Republicans as a lament. I disagree with the idea. One thing’s for sure, though—if most conservatives and Republicans have the same attitude as Krauthammer, it certainly won’t be repealed.

So I think this sort of talk needs to stop. Remember, there is no precedent for this bill and how it was passed against the will of the people, and we should not imagine that any precedent about not repealing entitlements would hold, either. As I’ve said several times, we are in uncharted waters. Let’s try not to lose our compass—and we may need our celestial navigation, as well.

Kruathammer and NN could both be right here. This is the flaw with American constitutional government; it is based on a theory that doesn’t really work. What happens if Congress passes a blatantly unconstitutional bill and then the President signs it? The theory is that it is eventually appealed, all the way up to the Supreme Court and SCOTUS will have the final word. All the stars in the heavens could line up for the unconstitutional law, The People could want it like the dickens, all the politicians who know where the bodies are buried want it…but the Constitution is not compatible with it, so out it goes.

Trouble is, this supposed “power” within our third branch of government to say so, has always been wielded out of political expediency. It was born that way, you know; Marbury vs. Madison. Chief Justice John Marshall found, in 1803, a perfectly wonderful excuse not to act.

So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.

Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law.

This doctrine would subvert the very foundation of all written Constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that, if the Legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the Legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.

My point is that as brilliant and sound as the logic may be, the resulting power has never really been brandished to comfort the afflicted or afflict the comfortable. Perhaps during that string of decisions in the 1930’s, it got as close as it’ll ever come. But in 1937 we had the disaster with “The Switch in Time That Saved Nine,” in which the Supremes fell more properly in line with Roosevelt’s agenda to save their own necks, in deference to the political realities.

It is logically unsustainable, in my view, to declare in 1935 that the AAA lacks compatibility with the Constitution, and in 1937, that the NLRA somehow has it. There never has been any logical basis for this famous Switch-In-Time. It was all politics, and always has been; our judicial branch follows the Constitution, logic, common sense, reason — when it can afford to, and no more often than that. Krauthammer does have a point.

But Neo has a point too. Where politics matter, popularity also matters; and Roosevelt’s alphabet-soup nonsense was much, much more popular than Obama’s new health care framework.

It’s like a lottery ticket: Can’t guarantee you’ll win if ya buy one, but I can guarantee you won’t if you don’t. And besides, in logic, in spirit, the law is unconstitutional. Congress is making us buy something? To simply exist as a living thing, and therefore to be susceptible to illness, is “interstate commerce”?

If repealing it or striking it down is too complicated to even try to do, then I daresay the same must be said of anything that can be done by anyone in this country. What’s the point of any of it?

Update: You who are looking for hope, would be well-served by looking here I think.

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How ObamaCare Hits Industry and Threatens JobsTuesday, March 23rd, 2010

How ObamaCare Hits Industry and Threatens Jobs
Tuesday, March 23rd, 2010