Guns, Doctors, Patients, And Medical Privacy

Yesterday the Obama Administration announced some new gun control measures.  Because President Obama issued executive orders, rather than proposing legislation to be debated and approved by Congress, most of the attention was on whether the President overstepped his authority and violated the intended constitutional balance of powers between the executive and legislative branches.

I’d like to focus on a different, substantive element of the changes announced yesterday:  namely, changes to a federal law protecting the privacy of certain health information to allow reporting of individuals who would fall within the mental health prohibitions of the federal gun background check law.  Politico reports that the new rule “enables health care providers to report the names of mentally ill patients to an FBI firearms background check system.”  Diagnostic information about the nature of the mental health condition being treated, however, would still be subject to privacy restrictions.

handgun_collectionThe announcement of the new rule by the Department of Health and Human Services uses the kind of dense, acronym-filled administrative jargon that makes ordinary people scratch their heads and throw up their hands, and it is not entirely clear the extent to which it applies to doctors — although the HHS announcement acknowledges that a number of comments it received about the rule expressed concerns about how the reporting issue would affect the “patient-provider treatment relationship and individuals’ willingness to seek needed mental health care.”

This is a difficult issue, because we’ve seen, over and over again, the carnage that can ensue when a mentally disturbed person builds an arsenal and then acts out their disturbed fantasies.  We want to keep those people from buying guns.  At the same time, however, notions of doctor-patient confidentiality are important — most states have laws or rules of evidence that protect such confidentiality — and exist precisely to encourage people to see a doctor and, in this example, seek treatment for their mental health issues.  New rules, even permissive ones, that could interfere with that confidentiality raise a legitimate concern, because if people who might otherwise seek treatment understand that by doing so they risk being disclosed to a federal database as mentally unfit, they may decline to seek treatment in the first place.  And if physician reporting of information that would disqualify a patient under the gun purchase laws is permissive, and a physician chooses not to report a patient who fits such criteria and the patient then acts on their fantasies, can the physician be sued for failing to report?  And, if the answer to that question is yes, won’t reporting become routine — and therefore the prospect of discouraging people from receiving treatment in the first place become even more likely?

No one wants to see mentally unbalanced people get their hands on guns, and we’ll have to see how these new rules play out, but this is a very sensitive area.  If the new regulations have the effect of discouraging people from seeking needed mental health treatment, they may unintentionally compound the problem.

 

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Google Scholarship

Recently a friend extolled the virtues of the Google Scholar database search tool.  Among other useful functions, he said, if you’ve ever written any kind of scholarly article you can find out how often it has been cited and whether it has been the subject of favorable comment.

IMG_4209Really, I thought?  That’s interesting.  It so happens that, back in the Stone Age when I was in law school, I wrote two articles that were published in the Georgetown Law Journal.  One addressed how to distinguish between statements of fact and opinions in evaluating the protection they received under the First Amendment.  The other considered President Reagan’s use of the “pocket veto” and suggested a framework for analysis of the intersession pocket veto from a balance of powers standpoint.

Boy, just describing the subjects of those two articles is pretty riveting, isn’t it?  With such fascinating topics, you’d expect those two articles, written in the leaden prose of law journals everywhere, to be high on everyone’s reading list.

So I couldn’t resist doing the Google Scholar searches.  I’m disappointed to report that, in the 30 years (!) since the First Amendment article was published, it has been cited all of 13 times.  Of course, I rationalized, the fact that the Supreme Court clarified the law within a few years of the publication of my well-reasoned piece probably cut down on the number of citations.  Unfortunately, the other piece has been even more roundly ignored:  it’s been cited only twice since it burst like a dung bomb upon the world of legal scholarship in 1984.

It’s embarrassing, I suppose . . . but then I suspect that most law journals articles are forgotten as soon as they are published.  It’s nice to know that my two forays into scholarship also have been consigned to the ash heap of academic literature and are simply gathering dust in the stacks of law school libraries across the land.

Balance Of Powers 101

Last week’s oral arguments before the Supreme Court about the Affordable Care Act — and the questions from Justices that suggested skepticism about the law’s constitutionality — seem to have caught some people off guard and caused them to make some very odd statements about how our government works.

Today, for example, President Obama said:  “Ultimately, I am confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”  He added:  “And I’d just remind conservative commentators that, for years, what we have heard is, the biggest problem on the bench was judicial activism, or a lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law.  Well, this is a good example, and I’m pretty confident that this court will recognize that and not take that step.”

I’m confident that the President — who graduated from one of the country’s best law schools — can’t possibly believe those statements, because they reflect a profound misunderstanding of the balance of powers that exists under the Constitution.  For more than two centuries, it has been well established that the Supreme Court is the ultimate arbiter of whether a law violates the Constitution.  And, since a federal statute becomes a law only if it has passed both houses of Congress and been signed by the President, declarations of unconstitutionality necessarily will occur only after a “majority of a democratically elected Congress” — and often a “strong majority” at that — has approved the law.

Indeed, the whole idea of judicial review is that the democratically elected members of Congress and the President might be swayed by the popular passions of the day, and therefore only judges appointed for life who are removed from politics should determine whether a statute contravenes the Constitution.  To be sure, it’s not a power the Supreme Court has used routinely, but over the last two centuries the Court has not hesitated to strike down statutes that are found to be unconstitutional.  The Court’s power to do so therefore is, quite literally, not “unprecedented.”

Obviously, the President hopes the Court will rule that the Affordable Care Act is constitutional and enforceable.  However, he does our system a disservice by suggesting that the Supreme Court would be overreaching if it decided to the contrary.  If the Supreme Court takes that step, it is simply exercising one of its constitutional powers — just as President Obama and Congress did in enacting the law in the first place.  That’s how our system is supposed to work.

Newt, Or Nut?

Republicans are on pins and needles as the Iowa caucuses draw near.  They want the 2012 election to focus on President Obama and his record.  They think that if the election is about unemployment and the recession that won’t end, they’ll win.

This strategy presupposes the Republicans pick a reasonable candidate.  If they nominate somebody who seems like a nut, the focus will shift from familiar stories about the crappy economy to novel stories about the Republican’s nutty positions.  If that happens, President Obama’s chances of re-election increase dramatically.

Most people put Ron Paul and Michele Bachmann in the “nut” category.  The challenge for Newt Gingrich is to stay out of that category — but his comments about the federal judiciary aren’t helping.

Gingrich has railed against activist judges, has talked about abolishing entire courts to try to rein in the judiciary, and has even discussed sending marshals to arrest judges and bring them to testify before congressional committees.  His point seems to be that the federal judiciary is too powerful and the other two branches of government need to rein in the judges.  Regardless of whether you agree or disagree with that point, the notion of eliminating courts and haling judges before Congress is too nutty for most Americans.  It runs counter to notions of separation of powers, and respect for equal branches of government, that most Americans hold dear.  It also raises the specter of a President who might disastrously overreact in a moment of crisis.

I’m not surprised that Gingrich’s meteoric rise in the polls seems to be reversing itself.  He talks a lot — and often he seems to talk without really thinking things through.  When he does, he sounds like . . . a nut.