RUTHFULLY YOURS

President Trump is criticized for things he has done and for things he has left undone. What is unreasonable is the additional arbitrary standard to which he, like all modern presidents, is held liable: what he has accomplished, and failed to, in his first hundred days in office.

Why is the figure of 100 days so important? As though Franklin D. Roosevelt doesn’t have enough to answer for, here is another of his legacies.

FDR spoke of “the hundred days which had been devoted to the starting of the wheels of the New Deal” in his fireside chat of July 24, 1933—142 days after his March 4 inauguration. He was referring to “the historical special session of the Congress” he had convened, which opened March 9 and adjourned June 16. That is, the Hundred Days were legislative days, not executive days.

Today’s Congress commonly leaves Washington three days a week. If you wanted to apply Roosevelt’s implicit criterion of 100 congressional days, you’d be counting not to April 30, but into July or August—or even September or later, since Congress is in recess the whole month of August.

It’s true that in 1933 Roosevelt put the 73rd Congress through its paces. But the reason, or excuse, for the rush of legislation was an economic emergency, signaled by the steadily worsening bank panic. To get the closed banks open again was the aim of the first piece of legislation submitted, the Emergency Banking Act—introduced on March 9 at 12:37 p.m., and on its way to the president at 7:23.

Absent the bank panic, the Hundred Days would not have started with such a bang. Without a similar emergency, why should we expect a president’s (or Congress’s) first hundred days to have anything like the same urgency and focus?

Congress did enact leading elements of the New Deal during the Hundred Days. But within two years the Supreme Court had gutted the National Industrial Recovery Act. The administration never attempted to revive it. In 1936 the same fate befell the Agricultural Adjustment Act, though in less sweeping fashion. Haste makes waste. Perhaps the most famous piece of legislation associated with the New Deal, the Social Security Act of 1935, had nothing to do with the Hundred Days.

Former President Obama suggested he will focus his post-presidency on redistributing wealth, emptying prisons, and sabotaging the economy with carbon-emission controls, during his televised return to the national stage yesterday.

Obama reiterated the politically tone-deaf radical policy priorities of his presidency in a speech at the Reva and David Logan Center for the Arts at the University of Chicago. (A transcript of Obama’s relatively brief oration is available here.)

In a statement preceding a roundtable discussion with students, Obama said:

The one thing that I’m absolutely convinced of is that yes, we confront a whole range of challenges from economic inequality and lack of opportunity to a criminal justice system that too often is skewed in ways that are unproductive to climate change to, you know, issues related to violence. All those problems are serious. They’re daunting. But they’re not insolvable.

“What is preventing us from tackling them and making more progress really has to do with our politics and our civic life,” Obama said. “It has to do with the fact that because of things like political gerrymandering our parties have moved further and further apart and it’s harder and harder to find common ground. Because of money and politics.”

Of course, in blaming “political gerrymandering” – an irrelevancy – he got to leave out the social polarization and ethno-cultural balkanization he encouraged while president, along with his crusade to inject more and more money into politics while pretending to do the opposite.

So what Obama failed to mention was just as interesting as what he did get around to saying.

If I set out to accomplish a task, I have to start with the basics. What is the job? What steps are involved? The list goes on. The same concept applies to ObamaCare. It’s broken. Whether we repeal it or fix it, we have to start with foundations. In other words, as Herman Cain notes, we have to ask the Right Questions.

Paul Ryan didn’t ask any of the right questions. And the very first one is simple: “What is our objective? Do we want to make health insurance affordable, or do we want to make health care affordable?” Put differently, do we want to guarantee a subsidy for the health insurance companies, or will we put patients first?

Health insurance is a subsidy to health insurance companies, because it has preferred status in the tax code. Taxpayers get a tax break for supplying health insurance companies with profits. That means that insurance companies will spend breathtaking amounts of money to support legislators who protect their profits. Legislators will respond by creating bigger tax incentives to buy health insurance, and the cycle will continue. Health insurance is a classic example of the Law of Subsidy in action.

The Law of Subsidy: Every time you subsidize something, you get more of it, and it gets more expensive.

Nobody asked, “Does health insurance improve health?” Had they asked, they would have learned that for the general population, health insurance does not improve health. The Oregon Health Insurance Experiment showed that:

“Medicaid coverage resulted in significantly more outpatient visits, hospitalizations, prescription medications, and emergency department visits. Coverage significantly lowered medical debt, and virtually eliminated the likelihood of having a catastrophic medical expenditure. Medicaid substantially reduced the prevalence of depression, but had no statistically significant effects on blood pressure, cholesterol, or cardiovascular risk. Medicaid coverage also had no statistically significant effect on employment status or earnings.”

Notice that there was essentially zero overall effect on health. Insurance did reduce individual financial risk, and that’s what insurance is supposed to do. But because of a 20 percent increase in use of medical resources, it substantially increased overall cost, suggesting that there may be better ways to protect individual finances.

Where did that excess money go? Providers! Insurance is a subsidy to the health care industry. Since this was Medicaid, it took taxpayers’ hard-earned money and gave it to insurance companies, doctors, and hospitals. We didn’t get to decide whether to use (and pay for) their services. The money was taken from us and given to them. And it did no good for poor patients.

The case of a Bible verse on a desk is not the same as prohibition of head gear. In my view if you permit a yarmulke, then you have to permit a turban, and a hijab and Rastafarian dreadlocks …it is a slippery slope. rsk

Should Americans be prohibited from practicing their faith while serving in the military? The Supreme Court ought to take up Sterling v. U.S., which presents exactly that question. Around 2013, the plaintiff, Lance Cpl. Monifa Sterling, had displayed a Bible verse above her desk. It was a message from Isaiah: “No weapon formed against me shall prosper.” That small act of religious devotion mattered to her, but the military considered it inappropriate. Her superiors ordered her to take it down. When she refused, the quotation was removed by a superior. Lance Cpl. Sterling was court-martialed and discharged from the Marines, in part for her refusal to remove the biblical message.

Her story bears a striking resemblance to a lawsuit that I took to the Supreme Court in 1986. Several years earlier I had joined the U.S. Air Force, intending to serve my country while continuing to practice my Orthodox Jewish faith. As part of that faith, I always covered my head with a yarmulke. I did so for many years while in uniform, and without complaint.

That is, until I encountered a vindictive military lawyer in 1981 who disliked an element of my expert testimony at a military hearing. He made a formal complaint about my wearing a yarmulke while in uniform. My commander subsequently ordered me to remove it. When I refused, I was threatened with a court-martial. Whether my commander was motivated by personal animus, bigotry or simple narrow-mindedness, I cannot say. He outranked me and would not tolerate any longer my minority religious practice.

I filed a lawsuit, Goldman v. Weinberger , and took it to the highest court in the land. But the Supreme Court ruled against me, 5-4, and deferred to the military’s stated interest in uniformity. Four justices dissented, arguing that the military had no good reason to quash the religious freedom of a serviceman who wanted to follow both his God and his country. I thereafter decided to leave the military.

In 1993 Congress enacted the Religious Freedom Restoration Act, or RFRA, to protect believers like me. The law guarantees that men and women in uniform can exercise their faith freely except in the rarest of cases: when the military can prove that a compelling interest is being pursued in as narrow a way as possible. CONTINUE AT SITE

Plaintiffs lawyers have a business model built around litigation tourism, suing in state courts known for friendly verdicts and big jury awards. The Supreme Court hears a pair of cases Tuesday that could upend this violation of federalism and due process.

In Bristol Meyers Squibb v. Superior Court of California, the Justices will consider whether some 600 plaintiffs who live outside California can sue the New York-based company in the Golden State by joining 86 local plaintiffs. The plaintiffs, who allege injuries related to the drug Plavix, sued in California because of its plaintiff-friendly reputation. (The other case, BNSF Railway v. Tyrell, concerns a similar play in Montana.)

The Constitution’s Due Process Clause says no person shall “be deprived of life, liberty, or property, without due process of law,” which protects defendants from being dragged into courts for improper claims. In Tuesday’s cases the claims filed have no connection to the state court exercising jurisdiction, a practice the High Court has already rejected.

In 2014 the Justices ruled in Daimler v. Bauman that for a court to have jurisdiction a lawsuit must be filed where a company is headquartered or uses as its main place of business. The same year in Walden v. Fiore, the Court held unanimously that “[f]or a State to exercise jurisdiction consistent with due process, the defendant’s suit-related conduct must create a substantial connection with the forum State.”

Yet the California Supreme Court ruled 4-3 in 2016 that California courts had jurisdiction over the Plavix lawsuits though the alleged injuries didn’t occur there, the company isn’t incorporated there and Plavix isn’t made there. The California judges, in willful disregard of the U.S. Supreme Court, said the state had jurisdiction because the company did a lot of business there. By that standard nearly any business could sue in California.

Justice Kathryn Werdegar noted in dissent that allowing a lawsuit with such a tenuous connection to the state “threatens to subject companies to the jurisdiction of California courts to an extent unpredictable from their business activities in California” and extends jurisdiction over liability claims “well beyond our state’s legitimate regulatory interest.” This violates a basic tenet of federalism. Justice Werdegar offers the High Court a road map to enforce its precedents and rein in the trial bar.