Legal Perspective: Does repealing ACA violate International law?

UN Headquarters in Geneva, Switzerland.
2017/UN photo

Through the journalism of Dana Milbank, in a recent Washington Post column, the world became aware of a secret memo sent from the UN to the US which declared the provisions of the Affordable Care Act to be protected under international law and that repeal would violate US commitments under international agreements.

The argument is based on a 2 February 2017, five-page, confidential memo sent from the Office of the UN High Commissioner on Human Right in Geneva to the US Department of State in Washington, DC. The memo expresses “serious concerns” about the prospective loss of health insurance coverage for nearly 30 million Americans. The memo goes on to urge the US Government to take “all necessary interim measures [. . .] to prevent the alleged violations”. As if the Commission’s memo wasn’t clear enough, there is a bold threat that if the “allegations” of loss of health coverage are proved accurate, then the person(s) responsible for failing to prevent said loss are guaranteed to be held accountable.

The memo was written by Dr Dainius Puras, Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, cites three specific areas of treaty law as grounds for why repealing the ACA would constitute a violation of public international law.

First is that Article 25 of the Universal Declaration of Human Rights “establishes everyone’s right to a standard of living adequate for the health and well-being, including food, medical care and necessary social services.”

Next, Dr Puras cites Article 5(e) of the International Convention on the Elimination of All Forms of Racial Discrimination, ratified by the United States in 1994, calls on states to “guarantee the right of everyone,” including “the rights to public health, medical care, social security and social services” without regard to race or color.

Lastly, Article 12 of the International Covenant on Economic, Social and Cultural Rights, under which states have “the core obligation to ensure the right of access to health facilities, goods and services on a non-discriminatory basis, especially for vulnerable or marginalized groups.” The agreement was signed but not ratified by the US, which is still “obliged to refrain from acts that would defeat the covenant’s object or purpose, in conformity with Article 18 of the Vienna Convention on the Law of Treaties.”

When I worked in the diplomatic world, I was taught that the epithet “serious concerns” is kind of like saying “we are so f—ng angry right now that we are ready to fly in a start shooting someone!!” Couple this language with the bold threat of “guarantee the accountability of any person responsible” for the loss of health coverage and now you have a complete cease and desist demand with scathing undertones.

Making demands and threats is not good diplomacy. The UN, through the said declaration, convention, and covenant, has reiterated that the aspirational standard of living includes not only includes food and shelter, but access to medical care and social security and other social services. This is agreeable, but it is a long stretch to say health care is a universal human right.

UN Council on Human Rights Chamber.
2017/UN photo.

What are human rights? According to the UN Human Rights Office of the High Commissioner, “Human rights are rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status. We are all equally entitled to our human rights without discrimination.”

The principle of universal rights was first emphasized in the 1948 Universal Declaration on Human Rights, which lists free speech, freedom from fear and want, and the freedom to rebel against tyranny and oppression if freedoms are not protected by rule of law as values recognized the by the international community. Other core values listed are the dignity and worth of the individual human life, equality between men and women, and the promotion of better standards of life.

Within the Declaration are listed the articles, which resemble the US’ Bill of Rights and a few later amendments. They include right to due process under law, right of a speedy and fair trial, prohibition on slavery, prohibition against torture and inhuman punishment, right of privacy, right to have a nationality, right to flee persecution and seek asylum, right to movement, right to marry and have a family life, right to own property, freedom of thought, conscience and religion, freedom of expression and opinion, right to assemble and associate, right to work and seek employment, et cetera.  

In addressing Dr Puras’ Article 25 Human Rights claim, he stopped shy of reading the entire clause, which indicates that “right of a standard of living adequate for health and well-being” can mean many clean air, pure water, transparency about what is in food and drugs, adequate law enforcement, etc. However, the clause goes on to read that the right to adequate food, clothing, housing, medical care, social security in the event of circumstances beyond the individual’s control, such as disability, widowhood, old age, or sickness.

It is pretty safe to say that the Declaration on Human Rights may be broadly interpreted to suit a person’s needs, falls short in declaring universal affordable health insurance a human right. The Declaration makes clear an obligation on nations to take care of citizens who have fallen through the cracks – the disabled, sick, old, and widowed. The connecting factor between these groups is that they cannot contribute to the economic output of a nation.

Dr Puras’ memo fails to consider the notion that repealing the ACA might actually make health insurance in American more affordable and more accessible. There would have to be some tweaks to the law, but certainly allowing consumers to buy across state lines and to allow insurers to offer a la carte plans would reduce the cost.

Considering healthcare costs for the US are three times the OECD average currently (OECD health statistics 2016), the idea of affordable healthcare being only tied to insurance premiums is absurd economics.

The average self-employed Colorado family with a special needs child could expect to pay in 2016 around $50,000 in health insurance premiums. According to the US Census ACS survey, the 2015 real median household income in Colorado was just under $64,000. Assuming that family pays 20% in taxes, that leaves about $1,000 (after health insurance) for rent/mortgage, food, water, clothing, transportation, leisure activities, etc.

According to the Economist, Americans in the lowest 20% of income are 15.5% better off, whereas all other income decile are worse off by 0.3-1.1%. It seems tough to put a number to Americans being worse or better under the ACA, as there are many moving parts, such as Medicaid Expansion, which would have most certainly helped the lowest 20%.

The Economist also reported that in the first quarter of 2017, American household income reached its highest level since the 2007-08 Financial Crisis began. Considering the ACA was signed into law by Pres Obama on 23 March 2010, it is hard to say how much improvement, if any, the law made since American’s earnings ratcheted down and health care and education costs began raising prices astronomically.

Recently I visited Connect for Health Colorado, Colorado’s health insurance marketplace, after plugging in my age, and a few key health stats (note, under the ACA you cannot be turned down for a pre-existing condition, but your premium can increase) and the lowest monthly quote I received was $750! Multiplied by 12 to see a full year’s cost and the number is $9,000! In 2016-17, the penalty for not having health insurance is 2.5 percent of income or $695, whichever is greater. Economically speaking, it is cheaper to pay the penalty, and then quickly enroll in an exchange plan if my health takes a dramatic turn for the worse.

Dr Puras then uses the International Convention on the Elimination of All Forms of Racial Discrimination as grounds that repealing the ACA would unjustly discriminate against some people. Having the ACA in place unjustly discriminates against the middle class and the way the ACA targets self-employed persons is particularly disturbing. Assuming Medicaid Expansion stays in place, it is a tough argument to say that repealing the ACA is discriminatory.

The last part of Dr Puras’ legal authority is the International Covenant on Economic, Social and Cultural Rights, which the US signed, but has not ratified, thus its bindingness is persuasive only. The key argument is over “access to health facilities.” In the US, if you are injured or in need of medical attention, you will receive it at the nearest hospital, with top facilities, highly skilled doctors and nurses, and never will you be discriminated against on the basis of race, economic status, lack of health insurance, religion, sex, gender, political persuasion, et al. The reason is the adherence to the Hippocratic Oath, which is a core principle in American medicine and treatment. If you are unable to pay, the local government will pick up the tab, with reimbursements coming from the state level. This is not the preferred way of doing business and the medical provider will want to work out a payment plan, but at no point in time was access to health facilities denied before or after the ACA.

Under UN General Assembly Resolution A/67/L.36 (6 Dec 2012), affordable universal healthcare became part of the UN's Post-Millennium Development Goals. The resolution is a way to hold member states accountable if they fail to comply. The Commission on Human Rights is charged with overseeing compliance, since spending on healthcare is treated as a fundamental human right. Poorer states may rely on foreign states for financial assistance.

A major problem with basing interpretation and authority on UN General Assembly resolutions is that the United Nations doesn’t consider UNGA resolutions to be legally binding.

Further, United States courts traditionally have not considered UNGA resolutions to be authoritative sources of international law, unless the resolution merely restates legal principles that could be verified by reference to recognised sources such as customary international law, treaties, and judicial decisions.

Even as some US courts are more receptive now days to UNGA resolutions, there is a danger here, as many UNGA resolutions contradict treaties, other resolutions, member state’s constitutions, and member state’s domestic law.

Quick example: UNGA Resolutions 339 A and B - Delegations voted in favour of both resolutions which called for maintaining a UN Command on the North/South Korean border and dissolving the UN Command and remove all foreign troops from South Korea.

Only 58 out of 200+/- nations have a form of affordable universal health care hardly constitutes sufficient state practice to establish customary international law (other element required is opinion juris, which is the belief that practice is legally obliged).

Even if affordable health care is deemed a right under treaty or convention, enforcement will be a problem.

It seems that if the UN is so concerned about the domestic affairs of nations, they should fund and provide the services they are desirous of compelling.

At a time when nations are ever more sceptical of large International organisations, perhaps flaming the dissatisfaction is inimical diplomacy.

Mandatory snow-tire legislation needs re-treading

As Coloradoans there is nothing more frustrating than heading over I-70 in the winter and hearing the words “snow storm” and “Interstate closure” in the same sentence.

Colorado has a policy of keeping I-70 open, even during the most treacherous of winter storms. The reason is because of economic injury due to freight delays. According to economic assessment reports from the Department of Transportation and the Motor Carriers Association, disruption of national freight transportation systems stemming from closures of I-70 in Colorado alone is nearly $100 million per year.

I-70 near Loveland Pass / Eisenhower tunnel
Photo credit: thedenverchannel.com 2015

The “chain law” for commercial carriers traversing Colorado is very simple. At all times, from September until May, commercial carriers must carry sufficient snow chains or traction devices or face a $50 penalty.

When the Colorado Department of Transportation declares the chain law in effect, all vehicles with a gross combined weight 26,001 lbs or more are required to have 4 or more drive wheels covered with an appropriate traction device. Vehicles with less than 4 drive wheels must have all drive wheels covered with an appropriate traction device.

The penalty for non-compliance is $500 when the chain law is in effect. If the vehicle causes blockage of a travelable portion of the roadway, then a $1,000 enhanced fine is assessed on the commercial driver.

Colorado’s current non-commercial vehicle snow-tire law is divided into two categories: (1) chains or adequate snow-tires and (2) chains only. The Colorado Department of Transportation has the duty of invoking the “chain law,” which, depending on road conditions, maybe for commercial vehicles only, or all vehicles, including cars, trucks, and SUVs.

Currently, HB-1173, sponsored by Reps. Bob Rankin, R-Carbondale, and Diane Mitsch Bush, D-Steamboat Springs, which passed the Senate Transportation Committee unanimously last week, would require all motor vehicles traveling I-70 from Dotsero to Morrison to have sufficient traction in the form of a four-wheel or all-wheel drive vehicle with regular tires with at least one-eighth of an inch of tread depth, snow-tires with a tread depth of one-eighth of an inch, or carry tire-chains or adequate traction devices.

Drivers found in non-compliance would face a $100 fine. An enhanced penalty of $500 would be added if the non-commercial vehicle causes closure of any portion of the I-70.

The non-commercial version of the commercial “chain law” was designed to mirror the commercial version; however the Rankin-Mitsch Bush version doubles the fee for non-compliance and proceeds to solve no problems.

Under the proposed legislation, the most significant change would be to require non-commercial vehicles to have snow-tires or chains at all times from November 1 to May 15, rather than just when the “chain law” has been declared.

The bill is “nanny government” at its finest and presumes that citizens lack necessary common sense to function in society. Colorado already has a non-commercial snow tire law which is clear and goes into effect when CDOT deems the roads particularly hazardous.

Colo Reps Bob Rankin & Yuelin Willett visit on House floor.

The Rankin-Mitsch Bush bill is a “boy scout” measure of mandating being prepared. While the bill’s authors are at it, they should mandate that Coloradoan’s know how to put on chains, perform CPR, and to always carry a medical kit, blanket, and avalanche shovel just in case accidents happen.

Moving beyond the argument that government is trying to mandate common sense, the Colorado State Patrol would have standing probably cause to search any vehicle for compliance. Fourth Amendment gurus out there should be shivering at the unprecedented power being granted to law enforcement.

It may be easy to determine speeding from a radar gun, but how hard is it to tell if a sedan is carrying chains on a beautiful, sunny, dry road day in January?

Unlike the commercial counterpart or current law concerning non-commercial vehicles, the proposed legislation would allow the state patrol to pick and choose when to enforce the law and on which vehicles. This means even when snow-flakes aren’t flying the state patrol could use this legislation to stop a vehicle in pursuit of other offences or mere revenue generation.

The Rankin-Mitsch Bush bill undermines due process, as cars are categorically not typically equipped with four-wheel or all-wheel drive; thus, creating a strong presumption that these cars may be in violation of traversing I-70 without chains, or at least one-eighth tread, regardless of the chain law being in effect.

This author conducted a analysis of all reported closures of I-70 from February 20 to March 30, 2015 and found of the six times the interstate was closed due to automobile accidents at least four were as a result of a truck or SUV. A conclusion here is that certain drivers, even with presumed adequate tires, operate their vehicle in such a way that reflects a belief of immunity from the effects of icy roads.

Before the Senate sends this bill to the Governor, perhaps a little more tread could be added to eliminate the high risk of abuse and the discriminatory aspects of this legislation.

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M Soper, "Mandatory Snowtire legislation needs re-treading"The Daily Sentinel (Grand Junction, Colo.) 5 April 2015 pg B5 http://www.gjsentinel.com/opinion/articles/mandatory-snowtire-legislation-needs-retreading# (accessed 5 April 2015)

Courts, EPA threaten mosquito control

Delta County has verified seven live cases of West Nile. Thirty-eight states, plus the District of Columbia, have reported live cases of West Nile virus, which includes four human fatalities.

Delta, Mesa and Montrose counties have typically seen half of Colorado's recorded cases of West Nile, but their efforts to control the mosquitoes are threatened by a court ruling and EPA rules.

West Nile virus, first detected in North America in 1999, is an arthropod-borne virus spread by infected mosquitoes. The virus is a threat to human and livestock (especially equine) health and can cause febrile illness, encephalitis, or meningitis in humans.

The battle between combating West Nile infected mosquitoes and protecting their breeding grounds (stagnant puddles, muddy cattle hoof prints, or anywhere there is non-moving water and some vegetation) hinges on the passage of H.R. 935 and the definition of "navigable waters."

Under National Cotton v. EPA (6th Cir. 2009), the court held that the Environmental Protection Agency is required to issue permits for all biological and chemical pesticide applications when such applications are made "to, over, or near waters of the U.S." Jurisdiction over navigable waters, or "waters of the U.S." belongs to the federal government, rather than the states or municipalities. The National Cotton court used the Kaiser Aetna test for navigable waters to declare bodies of water smaller than lakes and rivers to constitute waters of the U.S., and thus subject to federal jurisdiction.

To comply with the court order, the EPA, under the authority of Clean Water Act of 1972, redrafted the National Pollutant Discharge Elimination System (NPDES) permit process. The new set of regulations took effect on October 31, 2011. The new NPDES is required for all ground and aerial application of biological or chemical pesticide over or near waters which affect navigable waters.

The summer of 2012 was the first time mosquito spraying operations over ditches, ponds, and stagnant aquatic zones became affected by the Clean Water Act. As a result of a burdensome NPDES process and virtually unlimited statutory liability, many mosquito spraying operations came to a halt. The result was the worst outbreak in West Nile virus cases in the past decade.

Local cases of West Nile virus are due to high numbers of irrigation ditches and storage ponds, which create boroughs of stagnation perfect for mosquito breeding.

In 2011, the Town of Orchard City in Delta County, which boasts many small farms and retirees, chose to spray 0.007 lbs. of pesticide per acre to control and eliminate the growing mosquito population. The town sprayed at dusk to avoid harming honey bees and saw a 95% mosquito larva extermination rate. Orchard City went from the worst breeding spot for mosquitoes carrying West Nile to one of the safest in Colorado.

By 2012 Orchard City ceased mosquito spraying and the results were 22 confirmed cases of West Nile, including the death of an 82-year-old man. The board of trustees for the town passed a resolution calling for Congress to reduce the burdens of federal regulation created by National Cotton. An original copy was delivered to Congressman Tipton and U.S. Senators Udall and Bennet.

Historically, farmers, municipalities, and other government entities were exempt from the auspices of the Clean Water Act's permit requirement. Those exempt had to comply with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), which provided the framework for regulating pesticides. In 2006, the EPA issued a final ruling that the NPDES permit would not be required around water if applying the pesticides directly to water to control pests, or applying the pesticides to control pests that are present over or near water where a portion of the pesticides will be deposited to target the pests. The National Cotton case was a challenge to the EPA's final ruling.

U.S. Rep. Bob Gibbs (R-Ohio) introduced H.R. 935 which seeks to reduce the regulatory burdens and associated statutory liability of National Cotton, by amending the Clean Water Act and FIFRA to prohibit the EPA from requiring a NPDES permit for authorized FIFRA pesticides, of which mosquito spray is such a pesticide. The others include storm water discharge, and industrial treatment effluent and discharges incidental to normal vessel operations.

Keeping mosquito spraying exempt makes sense, as the health and well-being of a community is an essential obligation. Employing aerial pesticide to combat West Nile virus-carrying mosquitoes is highly effective, environmentally safe, and a cost value which reflects a community's fiduciary responsibility to both public health and fiscal stewardship.

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M. Soper. 'Courts, EPA threaten mosquito control'. [opinion/letter] Delta County Independent. 28 August 2013 <http://deltacountyindependent.com/index.php/opinion/soapbox/7457-courts-epa-threaten-mosquito-control> 29 August 2013

Legislative immunity & ethics committees: Colorado Constitution needs moderizing

I have been stunned at the bizarre turn-of-events surrounding the Denver Police’s traffic stop of Rep Laura Bradford. Not only did the police lie about the use of legislative immunity, then Speaker Frank McNulty decided to proceed with an ethics committee. Since when did an “ethics committee” replace courts of law? The question for the body is did Bradford invoke the clause, the police say no. Therefore the question is moot. It is also time to question the reason for an ethics committee in the first place? So far the committee has only been used for politically motivated “public hangings”. What happened to the presumption of innocence or the right of an appeal? The committee’s power usurps these rights.

Even if the committee decides it was unwise for the Denver Police to have granted special treatment, it becomes a moot point, as the clause is written into the Colorado Constitution. It isn’t unethical to assert legal rights, even if those rights themselves are at the center of the public debate. A reasonable person would normally be ecstatic with police granting a warning, a legislator, as a person, would follow suit. Bradford actually went beyond the standard of normalcy by asking police to give her no special treatment and to consider her a regular person.

McNulty should have waited and gathered facts to see if there was a cause for action. The Denver Police should have upheld the letter law, pursued a charge of driving under the influence, if they believed they had a case against Bradford. If the police had arrested Bradford, then the worst case scenario would have been a judge chiding the police for violating the constitution.

It is time to review of the Constitutional clause of legislator immunity and the legality of the House Ethics Committee. It is abhorrent that state legislators are granted special licence plates for their motor vehicles – something which encourages police to grant immunity carte blanche. The “internal ethics court” promotes abuse of power by House leadership. If legislators are to be treated as regular citizens, then they should be subject to the same laws and courts as everyone else!