Aaron E. Carroll's Blog, page 146

Get clear on what you think about the rule of law

The Trump campaign and the first weeks of the Trump presidency have raised concerns about his indifference to the norms of American government. Trump shows no concern for conflicts of interest and disregards norms of truth telling. Perhaps most troubling is his attitude towards the law. When a judge issued a hold on the President’s executive order on immigration, Trump tweeted:

The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!

— Donald J. Trump (@realDonaldTrump) February 4, 2017

Many conservative and progressive critics have worried whether Trump understands the rule of law and accepts that his decisions may be subject to judicial review.

When it looks like the rule of law is in jeopardy, it’s easy to affirm your commitment to that principle. But this shouldn’t be easy. In this post, I want people to understand what commitment to the rule of law requires.

So what do we mean by ‘rule of law’? Jeremy Waldron writes that:

The most important demand of the Rule of Law is that people in positions of authority should exercise their power within a constraining framework of well-established public norms rather than in an arbitrary, ad hoc, or purely discretionary manner on the basis of their own preferences or ideology… the Rule of Law is not just about government. It requires also that citizens should respect and comply with legal norms, even when they disagree with them. When their interests conflict with others’ they should accept legal determinations of what their rights and duties are.

The rule of law seems foundational. The alternative is authoritarianism. But there are two questions you should ask yourself before you pledge an absolute commitment to the rule of law.

The first question is, am I willing to constrain myself to respect norms of legal process even when my party is in power?

Nicholas makes this point beautifully in Vox. First, he argues that whether Trump respects the rule of law could have profound implications for health care. Trump could, for example, decide not to enforce key provisions of the ACA. But Nicholas points out that President Obama also selectively enforced the ACA when that suited his policy interests.

At key points, President Barack Obama delayed aspects of the ACA in an effort to put health reform on a sound footing. The delays were classic examples of executive overreach; they never should have happened.

Nicholas said so on this blog at the time, making him one of the few consistent progressive defenders of the rule of law. This is the cost of commitment to the rule of law: you need to be ready to put your own goals in jeopardy.

Many people will look at the first question and reason that only a hypocrite and cynic would set aside her commitment to the rule of law when it was in her advantage to do so. But it’s not that easy. The second question about the rule of law is, am I willing to respect norms of legal process even at the expense of other substantive moral commitments I hold?

Try to imagine yourself in a situation where the government and its laws uphold a deeply unjust policy. Go reread Martin Luther King’s Letter from the Birmingham Jail. King wrote the letter to criticize moderates who opposed his tactics of non-violent resistance.

You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court’s decision of 1954 outlawing segregation in the public schools, it is rather strange and paradoxical to find us consciously breaking laws. One may well ask, “How can you advocate breaking some laws and obeying others?” The answer is found in the fact that there are two types of laws: there are just laws, and there are unjust laws. I would agree with St. Augustine that “An unjust law is no law at all.”

King’s commitment to racial justice led him to select which laws he would respect and which he would not. For him, the hypocrites were those who would not make this choice.

I have almost reached the regrettable conclusion that the Negro’s great stumbling block in the stride toward freedom is not the… Ku Klux Klanner but the white moderate who is more devoted to order than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice; who constantly says, “I agree with you in the goal you seek, but I can’t agree with your methods of direct action…”

Right now, you may not believe that you have to face a choice between devotion to order and devotion to justice. You may be confident that, for example, Trump will lose in court on his executive orders. This confidence is foolish. For at least the next two years, the Republicans can pass laws as they see fit. They will fill many open judgeships with conservative jurists. Trump will hire lawyers who are competent to draft his executive orders. Like King, you may have to choose between what judges say the law is and what you think is just.

Get clear now on what you think about the rule of law. You may have substantive views about justice that are more important to you than your commitment to “well-established norms” of legal process. If so, you are not an absolutist for the rule of law. Your commitment is limited and you should clarify those limits: here is where I follow the law, and here is where I go to jail.

@Bill_Gardner

This is how you study supplements. Then you accept the results.

I spend a lot of time knocking supplements for not having research behind them. It’s important therefore to highlight when such research is done. From JAMA Internal Medicine, “Effect of Fish Oil Supplementation and Aspirin Use on Arteriovenous Fistula Failure in Patients Requiring Hemodialysis: A Randomized Clinical Trial“:

Importance: Vascular access dysfunction is a leading cause of morbidity and mortality in patients requiring hemodialysis. Arteriovenous fistulae are preferred over synthetic grafts and central venous catheters due to superior long-term outcomes and lower health care costs, but increasing their use is limited by early thrombosis and maturation failure. ω-3 Polyunsaturated fatty acids (fish oils) have pleiotropic effects on vascular biology and inflammation and aspirin impairs platelet aggregation, which may reduce access failure.

Objective: To determine whether fish oil supplementation (primary objective) or aspirin use (secondary objective) is effective in reducing arteriovenous fistula failure.

Design, Setting, and Participants: The Omega-3 Fatty Acids (Fish Oils) and Aspirin in Vascular Access Outcomes in Renal Disease (FAVOURED) study was a randomized, double-blind, controlled clinical trial that recruited participants with stage 4 or 5 chronic kidney disease from 2008 to 2014 at 35 dialysis centers in Australia, Malaysia, New Zealand, and the United Kingdom. Participants were observed for 12 months after arteriovenous fistula creation.

Interventions: Participants were randomly allocated to receive fish oil (4 g/d) or matching placebo. A subset (n = 406) was also randomized to receive aspirin (100 mg/d) or matching placebo. Treatment started 1 day prior to surgery and continued for 12 weeks.

Main Outcomes and Measures: The primary outcome was fistula failure, a composite of fistula thrombosis and/or abandonment and/or cannulation failure, at 12 months. Secondary outcomes included the individual components of the primary outcome.

People who require hemodialysis need to have their blood cycles regularly. This often requires a permanent means for vascular access. Unfortunately, such access carries with it the risk of morbidity and mortality.

There are a number of ways to achieve permanent vascular access. In general, arteriovenous fistulae are preferred to synthetic arteriovenous grafts or central venous catheters. AVFs take longer to mature before use and have a much greater risk of early failure.

Some have theorized that omega-3 fatty acids (fish oil) can help “not only inhibiting platelet aggregation1 but also decreasing blood viscosity, improving red blood cell flexibility, promoting vasodilation, inhibiting smooth muscle cell proliferation, and reducing inflammation.” Others theorize that aspirin might do similar things.

This trial wanted to see if either of these things were true. Researchers ran a double-blinded, randomized controlled trial of participants with stage 4 or 5 kidney disease at 35 dialysis centers in Australia, Malaysia, New Zealand, and the UK. Participants were randomized to get fish oil, placebo, both, or neither. Those that could not take aspirin or who couldn’t take aspirin were excluded from the randomization for aspirin, of course. The primary outcome of interest was failure of their fistula or a failure to use the fistula.

This wasn’t a small study. Of the 1415 deemed eligible over the study period, 567 were randomized and included in the trial. Of these, 406 were randomized to get aspirin or placebo as well.

Let’s talk about fish oil first. The failure rate in both arms (intervention and placebo) was 47%. No difference at all. Fish oil didn’t reduce fistula thrombosis or cannulation failures either.

Aspirin didn’t work either. The rate of failure was 45% in the aspirin arm and 43% in the placebo arm.

I grant you that this is a pretty focused trial, for a pretty specific cause. But we should respect the process and acknowledge the efforts. Fish oil and aspirin don’t seem to percent failures of arteriovenous fistulas in the year after surgery. Own it. Consider changing your practice.

 

@aaronecarroll

Healthcare Triage: Rising Pet Care Costs Might Tell Us Something about Human Health Care Costs

In almost every year since the 1960s, health care spending has grown at least as fast as the overall economy, and often much faster. Health economists have long debated why.

Strange as it may sound, how we care for our pets offers some answers. That’s the topic of this week’s Healthcare Triage.

This episode was adapted from a column Austin wrote for the Upshot. Links to resources and further reading can be found there.

@aaronecarroll

Is 3.49 more than 3?

Apparently Trump’s HHS doesn’t think so. From Jonathan Cohn at the Huffington Post:

HHS has already submitted a proposal of new rules to OMB. [Under the proposal,] insurers would have more leeway to vary prices by age, so that premiums for the oldest customers could be 3.49 times as large as those for younger customers. Today, premiums for the old can be only three times as high as premiums for the young, which is what the Affordable Care Act stipulates. According to sources privy to HHS discussions with insurers, officials would argue that since 3.49 “rounds down” to three, the change would still comply with the statute.

This is kinda dumb. It’s also not so legal. The ACA says that “the rates” for health plans “shall not vary by more than 3 to 1 for adults.” The statute couldn’t be clearer. As I said to Jonathan: ”If I told you not to sell something for more than $3.00, and you went ahead and sold it for $3.49, then you’ve disregarded my instruction. It doesn’t matter if it rounds to $3.00. It’s more than $3.00.”

Under Chevron, agencies have lots of room to interpret ambiguous statutes. But there’s no ambiguity here. The statute says no more than 3, period. As Monty Python might say, 3.49 is right out. (Here’s where I insert the standard caveat that the administration hasn’t offered a legal argument—or any public comment, for that matter—and it’s possible I’m missing something. Also, the rule could easily be amended during OMB review.)

Look, as a policy matter, I don’t have a dog on this fight. More restrictive age bands reduce the price of coverage for older people but inflate the price for younger folk. Less restrictive age bands do the opposite. It’s a distributional question; what you think is fair depends on value judgments that don’t have crisp answers.

But the fact that older people would be hurt by the change means that loads of people will have standing to sue. You think for one minute that AARP’s going to stand for this? And, if a lawsuit is brought, there’s a trivial chance—it rounds to zero—that HHS will win.

That’s why I’m flummoxed. The goal of this proposal is to stabilize the individual insurance market. If the rule gets mired in a lawsuit, that’ll only contribute to the uncertainty that Trump’s victory has created. For the sake of stability—not to mention its own credibility—HHS should forget that 3.49 ever happened.

@nicholas_bagley

AcademyHealth: Some lessons about opioids

A NEJM paper last year by Nora Volkow and A. Thomas McLellan offers several important lessons about opioids. My latest AcademyHealth post covers some of them.

@afrakt