Entries from June 2005

From Supremes, An Illusory “right”

David Frum June 21st, 2005 at 12:00 am Comments Off

Is Medicare still legal? It is one of the many curiosities of the Supreme Court’s recent decision on private health insurance that Canadians do not truly know the answer to that question.

“It is emphatically the province and duty of the judicial department to say what the law is.” So wrote U.S. Supreme Court Chief Justice John Marshall in Marbury v. Madison, the case that established judicial review in the United States 200 years ago.

So what is it? Is it OK to sell private medical insurance in Canada, or at least in Quebec? That result would seem to follow from the top court’s decision in Choualli v. Quebec — but what is logical is not necessarily true.

Despite the headlines, Choualli v. Quebec did not exactly create a new right to buy private health insurance. Instead, the judgment created a weirdly conditional (and largely useless) right: When, in the opinion of a court, the delays in Quebec’s health system grow so long that they threaten the lives and health of Quebec residents, then and only then those residents have a right under the Quebec Charter of Rights to purchase some form of private insurance.

Notice please how flimsy this “right” is. It fades in and out of existence depending on the Supreme Court’s assessment of the reasonableness of Quebec’s waiting times. If those waiting times were to be reduced, then the right might vanish again. How much would they have to be reduced? Why, that’s up to the court to decide.

As a practical matter, then, Choualli v. Quebec has created not a new right for the citizen, but a new power for the judiciary. The courts from now on will supervise waiting times in Quebec and (probably) other provinces to decide whether those waits are too long. Health care used to be a shared responsibility of the federal and provincial governments; from here on, the judiciary will have to be included as third — and senior — partner.

But as for the ordinary patient, he or she remains almost as much a non-entity as ever. Over the coming weeks, there will be a huge fuss and fury over health care reform. New resources will be pledged, changes promised. The desperate and cynical Martin government will endeavour to present itself as the champion and savior of “single-tier” medicine. At the end of it all, some entrepreneur or corporation will have to make the decision whether to offer private insurance to Canadians or Quebecers. When it does so, the whole issue will have to be re-litigated from scratch. Governments will present the courts with a long list of alterations to the system, arguing that these alterations have improved matters to the point where private insurance is no longer needed to meet constitutional muster. And the courts will … well, what will they do then?

Myself, I’m inclined to think that Globe and Mail columnist Jeffrey Simpson is right (hey — it happens) that the courts will ultimately back down. The composition of the court will alter, and the judges’ nerve will falter in the face of the campaign of demagoguery about to be waged against them by the Liberal government and the left. It’s one thing to be attacked from the socially conservative right: In the law schools, that’s a badge of honour. But to be attacked by their own constituency, by their own patrons, by their own former admirers — that will be more than I think the judges will be able to bear.

So while the future almost certainly holds considerably more health care litigation, it is unlikely that the courts can be counted on to make good on their half-promise of reform. Which means that the job will fall back upon those to whom it always properly belonged: elected leaders, the media, the citizenry.

The court’s bold bid to insert itself into health care decision-making did accomplish at least one good thing: It forever put the lie to the old propaganda about “the best health care system on earth.” No Canadian politician can any longer get away with denying that Canada’s hugely costly government health care monopoly is also dangerously, lethally, flawed — and that it is lethally flawed precisely because it is a monopoly.

Sometime soon, Paul Martin will fill the airwaves with ads urging Canadians to overlook the corruption of his government and keep him in Ottawa to “save Medicare.” The Supreme Court of Canada has written the text of the rebuttal ads:

“The evidence in this case shows that delays in the public health care system are widespread, and that, in some serious cases, patients die as a result of waiting lists for public health care.

“The evidence also demonstrates that the prohibition against private health insurance and its consequence of denying people vital health care result in physical and psychological suffering.

“It cannot be concluded … that an absolute prohibition on private insurance is necessary to protect the integrity of the public plan.”

But maybe the most scathing reply to this two-faced Prime Minister came from his own lips, during the debate on second reading of the gay marriage bill on February 16 of this year: “The Charter is a living document, the heartbeat of our Constitution. It is also a proclamation. It declares that as Canadians, we live under a progressive and inclusive set of fundamental beliefs about the value of the individual.”

The surest way to demonstrate that value will be to liberate those individuals from a health care system that their own highest court has now condemned as a threat to their health and their lives.

Eutopia Is Dead. What Now?

David Frum June 7th, 2005 at 12:00 am Comments Off

LUCCA, Italy–Don’t let the dateline fool you. I’m not on holiday. On Wednesday, Dutch voters finished off the unwieldy and absurd EU constitution. That afternoon I got a hasty phone call from the organizers of a conference here in Tuscany. I had just published an article arguing that the defeat of the constitution was in fact a good thing for both Europeans and Americans–could I please fly over the next day to repeat the message to a roomful of anxious Italian politicians and journalists?

“Don’t panic” is not a very complicated message, but it’s one that Europeans suddenly seemed to need to hear. Within hours of the Dutch vote, the European airwaves filled with noisy predictions of disaster. Without the constitution, the Euro currency would collapse, the European Union would break apart, the whole continent would soon tumble from unity into chaos.

But look: The European constitution failed because Europeans did not want it. The document was a poorly drafted mess that injured European democracy by transferring powers from national legislatures to the unelected and high-handed European Commission and the unelected and even more high-handed European Court of Justice.

By contrast, Europeans do want the Euro and the European Union. Neither is going anywhere. On the contrary, the defeat of the ill-conceived European constitution offers Europe its best chance in years to solve real problems that affect real people.

Since the early 1990s, European leaders have been consumed with the (to them) fascinating job of building European institutions. Europe now has a flag, a national anthem, a song contest, and a charter of rights. European officials set policies on issues that range far and wide from the organization’s original economic purposes. They have banned the death penalty even for countries that favor it, imposed homosexual rights on countries that oppose them, and fought a global struggle to suppress genetically modified foods.

What EU officials have by and large failed to do, however, is build effective economic policies. French unemployment has hit 11% and youth unemployment surges even higher. Five million Germans are out of work. Italy has slipped into outright recession.

France and Germany ignore the debt limits they accepted as part of the deal to create the Euro currency. Their feeble efforts to reform their out-of-control welfare states have failed: This spring, a wave of strikes forced French prime minister Jacques Raffarin to abandon his proposal to end the national paid holiday for Whit Monday, a festival English-speakers may vaguely remember from the pages of Ivanhoe.

It’s not hard to describe what Europe must do to keep pace with the United States and remain ahead of China and India.

It must invest more, and so it must cut taxes.

It must raise its skill and technology level, and so it must free its universities from state control.

It must encourage its citizens to work harder, and so it must cut back on lavish pension and unemployment systems.

It must make it easier for citizens to move to seek work, and so it must eliminate obstacles to mobility, such as Germany’s crushing taxes on the sale and purchase of housing.

This agenda is easy to describe, but hard to carry out. The EU constitution was at best a time-wasting irrelevancy to this work of reform; at worst, it would have functioned as an outright impediment.

True, some reform-minded Europeans may have held quiet hopes that the unelected European Commission might somehow force reforms from which cowardly politicians recoiled. At its best, the commission has been a force for freer trade and more rational economic policies.

But the commission has bad days as well as good days, and it seems as often interested in forcing Estonia and Slovakia to push their taxes up as in persuading France and Germany to bring their taxes down.

Europe needs broad and deep institutional changes, and no unelected commissioner aware of the limits of his or her democratic legitimacy will ever dare impose such changes. Democratic societies must be persuaded to change, not forced, and it is through democratic politics that the work of persuasion must be done.

And when societies must change, the strongest motive for encouraging change is nationalism. When Margaret Thatcher advocated reform in Britain, she did not just say that Britain was falling short of its potential and must open its markets to optimize its performance. She said that Britain was falling behind its neighbors and traditional rivals, France and Germany, and that Britain must change in order to remain truly great.

Likewise, the small Eastern European countries that have most adopted the boldest market-oriented reforms were not persuaded by purely economistic welfare-maximizing arguments. Their leaders appealed to their national pride, to the desire of newly liberated lands to catch up, to stand equal, to cease being poor and backward and marginal.

Nationalism has often been exploited to justify destructive economic policies, as Canadians know all too well. But in other places and at other times, the desire to overcome national weakness, to enhance one’s nation’s importance in the world, has prodded reluctant societies to choose wise policies over short-sighted and self-indulgent ones. People have died for France–but who would accept a higher dental co-pay for the sake of united Europe?

Last week’s vote puts an end to the bizarre fantasy of one united Eutopia–and creates an opportunity for a new generation of leaders to do what their nations need to grow and thrive.
So again: Don’t panic. Europe’s leaders have tried and failed to evade their responsibilities. Now they have no choice but to accept them–and go to work.

Marianne Unfaithful

David Frum June 1st, 2005 at 12:00 am Comments Off

French democracy has blundered its way to the right result. Most of the arguments advanced by the “non” side in Sunday’s referendum on the European Union Constitution were exaggerated, misleading, or outright falsehoods. And yet beneath those arguments was a larger truth that will likely also be recognized and acted upon by Dutch voters in their balloting today.

The French, the Dutch, and other Europeans have lost patience with political systems that seem increasingly remote and political elites that seem increasingly disdainful of the interests and values of the people they claim to represent. If the French voted “non,” because they sensed that the EU Constitution would aggravate those problems, then they voted very shrewdly. Indeed, only a political system as seemingly remote and disdainful as the EU has become could have produced a document like the EU Constitution: interminably long, confusingly organized, obscure in its effects, and in many crucial spots almost deceptive in its purposes. It seems almost too heavy-handedly symbolic that while the U.S. Constitution opens with the resounding words, “We the People of the United States,” the first words of the EU Constitution are: “His Majesty the King of the Belgians . . .”

French opponents of the EU Constitution charge that it is an “Anglo-Saxon” document that would impose a harsh “neo-liberal” free-market regime. In truth, the EU Constitution owes little or nothing to the constitutional traditions of the English-speaking world. It would establish a legislature that cannot write laws, a judiciary that can act even when no law has been broken, and an executive that is not elected by and is barely accountable to anyone or anything. As for accusations of “neo-liberalism,” they miss the point. The Constitution vastly expands the powers of the unelected and largely unaccountable European Commission and the unelected and wholly unaccountable European Court of Justice (ECJ).

It’s possible that court and commission might push unwilling countries to open markets to more competition. It’s equally possible that the newly empowered commission and court might impose burdensome rules and regulation. Or they might do a little of one and a little of the other. Who knows? The only thing we can say for sure is that large areas of decision-making have been removed from governments elected by Europe’s peoples and entrusted to bureaucracies carefully insulated from democratic control.

This “democratic deficit” is often cited by European elites as a malady to be cured. The EU Constitution adds to this democratic deficit in four major ways. First, it moves important powers away from the elected governments of the 25 member states to the Commission in Brussels. National vetoes are eliminated as areas from health care to defense are transferred from national to Union jurisdiction. Second, within that centralized EU, the constitution shifts power from the elected heads of government who together make up the European Council to the unelected bureaucrats who staff the Commission and the unelected judges of the ECJ.

Third, while the constitution speaks glowingly of the “democratic life of the Union,” in fact the Commission has been carefully protected from interference by elected officials. Although the constitution declares that the Commission is “responsible to” the European Parliament, that parliament remains in practical fact as powerless relative to the commission as ever. Unlike Congress, the parliament cannot initiate legislation. Unlike the British Parliament, it cannot ask questions of the members of the executive. Theoretically, the European Parliament can force the commission to resign, but it must do so by means that look much more like an impeachment than like a vote of non-confidence: by a vote of censure passed by a two-thirds majority.

Fourth, the constitution greatly expands the power of the only European institution even less representative than the commission: the ECJ. To call this body a “court” is really a misnomer. A court exists to adjudicate disputes between parties according to law. The ECJ has vastly larger powers, some deliberately granted, others that will arise from the imprecision and indecision of the European Constitution’s authors. For example, the court is called upon to enforce the EU’s charter of rights. But that charter is written in a strange way. Sometimes it expresses itself in ways that sound like law: “Everyone has the right of access to a free placement service.” (Art. II-89.) Almost as often, it makes sweeping declarations that seem intended as something less than law: “The Union recognizes and respects the rights of the elderly to lead a life of dignity and independence and to participate in social and cultural life.”(Art. II-85)

The constitution seems aware of this ambiguity: Art. II-107 declares that anyone suffering any violation of those “rights and freedoms guaranteed by the law of the Union” is entitled to “an effective remedy before a tribunal.” That holds open the possibility that some of the charter’s “rights and freedoms” are not guaranteed by the law of the Union–and invites future European courts to decide for themselves which rights and freedoms they would like to enforce and which they will forget.

For almost five decades, American administrations of both parties have taken it as axiomatic that ever-closer European integration is in America’s national interest. Even the Bush administration, which has overthrown so many outdated shibboleths, has not yet liberated itself from this one. The European Constitution explicitly subordinates nearly all the member states’ old obligations to NATO to their new obligations to the EU. That alone should be reason enough to disturb any Alliance-minded European or American. Yet many inside the administration keep pushing the president to support and endorse the European Constitution. Indeed, on the eve of President Bush’s February trip to Europe, sources within the National Security Council leaked to the New York Times an early draft of a speech that would, in the words of reporter Elisabeth Bumiller, “make clear that the United States welcomes the drive toward European unity.” That enthusiastic language was cut before the speech was finally delivered. But the thinking that produced the language survives inside the Bush State Department and NSC.

All can agree that a strong Europe–a secure, prosperous, and self-confident Europe–is in America’s interest. There is nobody over here who fears European strength: Indeed, the only people who see a united Europe as a rival to the U.S. are overheated Eurocrats. Americans should fear European weakness–and this constitution weakens Europe by diminishing democracy, alienating voters, and discrediting the legitimacy of necessary economic reforms.

Jeffrey Cimbalo and David Frum are members of the European Constitution study group at the American Enterprise Institute.