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.

Society must protect those who are being exploited by human trafficking

Saturday was the 150th Anniversary of Congress passing the 13th Amendment to the US Constitution abolishing slavery.

The final House vote was 119 to 56, with all Republican members voting for abolition of slavery, and 16 Democrats breaking with their party to move the resolution to the states for ratification.

Today, human trafficking is the fastest growing business of organized crime, and the third largest criminal enterprise in the world. Involuntary prostitution, forced labor, other forms of slavery, and forced harvesting of human organs are the main offences within the term human trafficking.

On Tuesday, the Republican led Congress once again took up fight to end slavery in all its forms. The House passed 12 measures aimed at ending human trafficking in the US. Unlike the vote of 1865, this year’s votes drew a little more support from the Democrat ranks.

For more information about the International effort to fight modern day slavery, please visit the UN Office of Drugs and Crime, Human Trafficking Section.

Freedom is consistently in peril, and society must protect those who are being exploited.
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M Soper, "Society must protect those who are being exploited by human trafficking," GJ Sentinel (Online) 2 Feb 2015 http://www.gjsentinel.com/opinion/articles/email-letters-february-2-2015 accessed 5 Feb 2015. 

Farrelly v. Concord: never date the police chief's daughter

The case of Farrelly v. City of Concord is a civil action before the United States District Court for the District of New Hampshire. On Tuesday, 27 November 2012 at 11:00 AM I was privy to the oral arguments before the Honorable Judge Landya McCafferty concerning a duel motion to reconsider.  The motion by defendants, the City of Concord, was to suspend an order regarding NH RSA 507-B (municipality immunity question), pending reconsideration and appellate review if necessary. The plaintiff’s motion was to have the court reconsider claims IV (malicious prosecution) and VIII (negligence), which earlier had been dismissed by a motion. The malodorous facts of Farrelly are lucid in contrast to the procedural quandary before the parties.  This essay will commence with a presentation of the facts, followed by a discussion of the motions and in-court observations of the actors, and conclude with a few personal remarks about courtroom observation and the attorney’s jibes at each other.

            The story begins when Mr Farrelly started dating Ms Corliss, who is the daughter of a 30-year veteran of the City of Concord, New Hampshire Police Department.[1] At one point, Mr Farrelly moved in with Ms Corliss and her daughter.[2] After the relationship dissolved, Mr Farrelly sent a total of three emails to Ms Corliss in February 2009, expressing his disappointment in how she treated him and her daughter.[3] The emails allegedly contained an expletive.[4] Ms Corliss responded by filing a complaint with the Concord Police, alleging harassment and inappropriate language.[5] On 21 February 2009, two police officers, one being Officer Pichler, arrived at Mr Farrelly’s apartment inquiring about the emails.[6] After several questions, Mr Farrelly admitted to sending the emails.[7] Officer Pichler then made a warrantless arrest of Mr Farrelly “because he thought he was permitted to do so by RSA 594:10, I(b), based on his belief that Farrelly had committed domestic abuse, as defined in RSA 173-B:1.”[8] Mr Farrelly informed officers of a shoulder injury.[9] Police officers negligently handled Mr Farrelly resulting in severe damage to the shoulder, hip, wrist, and arm.[10] “The charges against Farrelly were dropped [the day] before trial, due to the unconstitutionality of RSA 644:4, I(f).”[11] After the charges were dropped, the Concord District Court ordered Mr Farrelly’s arrest to be annulled and voided from the record.[12]

On 16 December 2010 Mr Farrelly launched this civil action against the City of Concord and the two police officers stating six causes of action in his complaint.[13] The complaint was later amended to add two additional causes of action.[14] The reason the United States District Court for the District of New Hampshire was able to hear the case was because one of the causes of action raised a question of federal law and jurisdiction was asserted on account of the parties residing in the district. The causes of action included: violation of due process; violation of 1st Amendment rights of speech; violation of 4th Amendment rights against unreasonable search and seizure; malicious prosecution; false imprisonment; violation of New Hampshire’s Constitution; failure to supervise; and negligence.[15]

In September 2012, Judge McCafferty ruled on a motion for summary judgment and in an 86 page opinion partially granted defendant’s motion, partially denied, and granted plaintiff’s motion to amend the complaint.[16] False imprisonment was the sole cause of action to survive summary judgment.[17] The plaintiffs were permitted to bring an amendment and try again.[18]

The day I observed the oral arguments for a duel motions to reconsidering hearing, the defense’s motion to reconsider and have the final claim dismissed by summary judgment. That claim is false imprisonment, which is a state law claim under common law intentional tort. The plaintiff’s motion to reconsider was for the court to allow two previously dismissed claims of malicious prosecution and negligence to proceed to trial. The oral arguments lasted about one hour and 40 minutes. The plaintiff was represented by Jon Meyer and the defendants were represented by Charles Bauer. Only the attorneys were present before the court.

            Mr Bauer began first. He reminded Judge McCafferty of her 86 page summary decision on the relevant issues of law in question. The defense said a majority of the complaints were dismissed under 42 U.S.C. § 1983. The defense reminded the court that malicious prosecution was one of the claims dismissed by the court. The defense continued by stating that of the original 8 claims presented, only one remains in question – the false imprisonment claim – which is a New Hampshire state law claim.  The defense then stated that the motion for reconsideration hearing was an opportunity for the court to re-hear the reasons for dismissing the false imprisonment claim as a matter of law. Mr Bauer then proceeded to lecture Judge McCafferty on how she eroded in not dismissing the false imprisonment claim and that she eroded in entertaining the plaintiff’s motion to reconsider these formerly dismissed claims of malicious prosecution and negligence.

            The basis for dismissing the false imprisonment claim was N.H. Rev. Stat. §507-B:2, which concerns Liability for Negligence. RSA 507-B:2 sets forth circumstances under which a governmental unit may be held liable for negligence.[19] The defense states that these circumstances are limited only to pertinences (eg- sidewalks, buildings, etc.) and motor vehicles (eg- cars, trucks, planes). The defense further argued that 13 out of 14 courts have not allowed a municipality to be held liable for an intentional tort, such as false imprisonment, and the one court which did allow the action to proceed involved a retired judge. The plaintiffs argue that RSA 507-B:2 does not state or imply that a governmental unit has no liability for intentional torts. The plaintiffs explained that if the legislature had wanted to exclude intentional torts, then they would have been more specific.

At this point in the oral arguments, Judge McCafferty asked if the standard of measure was an objective or subjective one. The judge explained the question of municipal immunity rested on determining if the immunity is either official immunity[20] or qualified immunity[21]? Qualified immunity with an objective standard would preclude all intentional tort claims against municipalities. A subjective standard would favor the plaintiff’s case.

The plaintiff’s argued that the defendants cite no state case law to support its proposition of official immunity, and instead rely on the federal law of qualified privilege. Federal law, the plaintiff’s argue, is inapplicable, since it is based upon decisions of the U.S. Supreme Court establishing an objective standard for qualified immunity which has no counterpart in common law privileges. In 1985, the New Hampshire Supreme Court made subjective reasonableness a constitutional requirement which would be equally applicable to official immunity.[22] Further, the plaintiffs state that official immunity does not bar an intentional torts action from proceeding to trial. The plaintiffs pointed out that no proof had been led by defendants as to why Mr Farrelly was arrested without a warrant on the basis of a statutory clause which had been declared unconstitutional three year earlier.

The Everitt v. Gen. Elec. Co., 156 N.H. 202 (2007) decision is considered precedential by both sides. The defendants argued that Everitt precludes official immunity from barring claims of intentional wrongdoing. The plaintiffs pointed out that Everitt explicitly states that municipalities are to be held to the same standard as corporations; and a corporation can be liable for an intentional tort.

Both the defendants and plaintiffs agreed that since the federal district court was acting under supplemental jurisdiction, that a certified question on the issue of immunity would be appropriate. Under the Erie Doctrine, federal courts which have questions of state and federal law should apply the substantive law of the state, in this case, New Hampshire, to the state law question(s). The Erie Doctrine requires the federal court to predict how a state court would decide the same question. A certified question on substantive law is not mandated, but if the federal court agrees and the New Hampshire Supreme Court accepts, then the highest court will be given the opportunity to rule on that question of law.

In conclusion, this was a very fascinating case to observe in-person, as had the legal counsel for the City of Concord not lectured the judge on how she eroded, there might have been much more of an opportunity to have the immunity question decided in defendants favor. When the defense counsel said that Judge McCafferty’s opinions were worthless as he would appeal to the First Circuit Court of Appeals and that court would then tell her what the law is. The counsel for the plaintiff had a funny zinger, as he made a sarcastic reference that he didn’t realize retired judge’s opinions carried less precedential weight. Judge McCafferty seemed quite keen to not make a judgment based on dicta. She wanted an actual citation for where the defense was claiming the Everett case created blanket immunity. After the hearing, the two attorneys were already discussing lunch plans and a settlement deal for other clients they represent. I found it amazing how they had just had a heated argument about a heavy question of law and then were capable of moving onto other subjects without fully collecting their papers.

---

[1] Complaint and Demand for Jury Trial at 2, Farrelly v. City of Concord, No. 10-cv-00583-LM (D. N.H. Dec. 16, 2010), ECF No. 1-3.

[2] Id.

[3] Id. at 3.

[4] Oral Arguments, Farrelly v. City of Concord, No. 10-cv-00583-LM (D. N.H. Nov. 27, 2012).

[5] Answer and Affirmative Defences at 3, Farrelly v. City of Concord, No. 10-cv-00583-LM (D. N.H. Jan. 24, 2011), ECF No. 6; see Farrelly, 2012 WL 4513888, at *3.

[6] Complaint and Demand for Jury Trial at 3, Farrelly v. City of Concord, No. 10-cv-00583-LM (D. N.H. Dec. 16, 2010).

[7] Amended Complaint and Demand for Jury Trial at 3, Farrelly v. City of Concord, No. 10-cv-00583-LM (D. N.H. Nov. 8, 2011), ECF No. 31-1.

[8] Farrelly v. City of Concord, No. 10–cv–583–LM, 2012 WL 4513888, at *9 (D. N.H. Oct. 2, 2012).

[9] Farrelly, 2012 WL 4513888, at *4.

[10] Order Denying Defendant’s Motion to Dismiss at 1, Farrelly (D. N.H. Sept. 12, 2011).

[11] Farrelly, 2012 WL 4513888, at *10.

[12] Order Denying Defendant’s Motion to Dismiss at 2, Farrelly (D. N.H. Sept. 12, 2011).

[13] Complaint and Demand for Jury Trial, Farrelly (D. N.H. Dec. 16, 2010), ECF No. 1-3.

[14] Amended Complaint and Demand for Jury Trial, Farrelly (D. N.H. Nov. 8, 2011), ECF No. 31-1.

[15] Amended Complaint and Demand for Jury Trial at 6-8, Farrelly (D. N.H. Nov. 8, 2011), ECF No. 31-1.

[16] Farrelly, 2012 WL 4513888, at *85-86.

[17] Id.

[18] Id.

[19] “A governmental unit may be held liable for damages in an action to recover for bodily injury, personal injury or property damage caused by its fault or by fault attributable to it, arising out of ownership, occupation, maintenance or operation of all motor vehicles, and all premises; provided, however, that the liability of any governmental unit with respect to its sidewalks, streets, and highways shall be limited as provided in RSA 231 and the liability of any governmental unit with respect to publicly owned airport runways and taxiways shall be limited as set forth in RSA 422.”

[20] Doctrine of official immunity protects individual government officials or employees from personal liability for discretionary actions taken by them within the course of their employment or official duties. RSA 99-D:1. “Official immunity” shields public employees against lawsuits alleging common law torts, such as negligence.

[21] Doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which reasonable person would have known. “Qualified immunity” shields public employees against lawsuits alleging constitutional violations. This is also known as “good faith” immunity, meaning it does not protect against bad faith actors. See Black’s Law Dictionary.

[22] Opinion of the Justices, 126 N.H. 554, 564 (1985); see also City of Claremont v. Truell, 126 N.H. 30, 39 (1985) (New Hampshire Supreme Court held a statute should be interpreted so as to preserve its constitutionality).

Is censorship without due process like security checks without probable cause?

Is the pursuit of safety worth relinquishing essential liberty? Civil liberties are being eroded at an alarmingly fast rate. Newspapers have been filled with examples of human rights being trampled in the name of protection and security. 

Wikipedia, Reddit, and approximately 7,000 smaller websites recently coordinated service blackouts to protest the Stop Online Piracy Act (SOPA) and PROTECT IP Act (PIPA) which were being voted on in the US Congress. The bills would have given law enforcement the ability to protect digital private property rights by blocking web content which might violate US law. The legislation would have threatened the 1^st Amendment right of free speech and allowed the federal government to censor certain websites without due process of law.

America’s government has lulled its citizens into a false sense of security. Flying is no longer merely about traveling from one city to another, but involves queuing for what feels like ages, placing all liquids of three ounces or less into quart sized bags, and stripping shoes, coats, and belts, along with all other loose objects, into a tray for scanning. This is followed next by the preverbal walk through the metal detector and/or body-scanner, and for the ‘lucky’ few – full body pat down by a Transportation Security Administration (TSA) officer. For those refusing, they get the Rand Paul treatment. Flying in the ‘free world’ has become an expo of liberty in derogation.

Al-Qaeda has single-handedly eroded our essential liberty by giving governments a tool to prey on citizens - FEAR. In the name of security and safety, our government has chosen the means by which to protect us, the people, from terrorists. Fear has led to a proliferation of the “security industrial complex”.

The rise of the military [security] industrial complex: A recent report out of the UK put the Homeland Security Industry at a global market valuation of nearly $200 billion per annum. Despite the killing of al-Qaeda CEO, Osama bin Laden, economic woes and growing national debts, aren’t holding governments back on funding counter-terror activities. People have begrudgingly said government knows best and accepted a world with security checks, surveillance systems, and restrictions on travel and personal effects.

In spite of our government’s efforts, are we safer today than we were prior to September 11, 2001? The Department of Homeland Security can cite numerous cases of would be terrorists who have been disrupted in their plot to harm Americans. The Justice Department has deported, extradited, or tried dozens of terrorists. Yet, through all these interventions and billions of dollars spent both at home and abroad, America is as much at risk today as it was eleven years ago. The 9-11 Commission Report points out measures were in place to impede such attacks; however, an ‘infallible’ bureaucracy failed to react timely to overt indications of threats.

The most important change since 9-11 has been the securing of the cockpit door to prevent turning a plane into a ‘guided missile’. Studies have shown if terrorists cannot enter the cockpit and take control of the plane, then the worst damage they can inflict is bodily harm to passengers or blowing up the plane. People who become victims have a right of self-defence and tend to react if life and limb are in imminent threat. The best example is United Airlines flight 93, where the passengers reacted to the suicide hijacking by rushing the cockpit. The most lethal weapons in the war on terror is individual people, everyday heroes, not a government willing to use fear to erode personal freedoms and liberties.

The only way to stop the proliferation of the ‘security industrial complex’ is to stop feeding it! I want a leader who isn’t afraid to admit our government has lulled us into a false sense of security. I’d rather accept the risks of freedom, and have more freedom than the protection of an overreaching, ineffective and ever centralized bureaucracy.