The Fourth Branch Amendment ...

Mark Levin has advanced the proposal that a convention of the States (as contemplated by Article V of the U.S. Constitution) is now required to return the Federal government to its legitimate functions as set forth in the Constitution.  While various States and private groups have made fragmented attempts at this project over many decades, Levin's brief but deeply researched The Liberty Amendments has added the energy of a complete rationale for the process and spurred organizing efforts in numerous State Legislatures.  In addition to making the argument for the Article V process, Levin proposed a eleven specific amendments he hopes would have the cumulative effect of restoring the Federal Government to the place defined for it in the founding and constitutive documents that legitimize all of the Federal Government's actions.  

Personally, I have no problem with any or all of the proposals advanced by Mr. Levin.  I would, however, add one more to directly address the problem of the runaway administrative state that not only increasingly eludes the control of the executive, legislative and judicial branches, but in many ways drives the policy agenda.

I would propose the 

Fourth Branch Amendment:

Section 1.  Each State Legislature shall appoint an Administration Judge to act for that State and its people as set forth herein, with the first term to begin in the year immediately following ratification of this Amendment.  If the State Legislature fails to make the appointment by the first day of January of the first year of the term, the Governor of the State shall have the power to make the appointment for that State.  Each Administration Judge appointed shall be a citizen of the United States and have attained an age of at least fifty years by the beginning of his or her term.

On the first Wednesday after the first Wednesday in January at the beginning of each term, the Administration Judges appointed by the States shall convene The Council of Judges, which will convene annually thereafter.   The Council of Judges shall elect by a plurality vote two Administration Judges who are not at that time appointed Administration Judges, each to a term with specific jurisdiction.  One Elected Administration Judge shall  have jurisdiction to exercise the Powers set forth herein over the Federal District of Columbia and the other Elected Administration Judge will have jurisdiction over the territories and Indian Nations of the United States.  

Section 2.  The Treasury of the United States shall deposit a sum of money equal to one-twentieth of one percent of all revenues from all sources collected by the Government of the United States in the previous fiscal year, excluding borrowings on the credit of the United States, equally allocated in Special Accounts on the first Tuesday after the first day in January of each year with the respective account to be solely controlled by each Administration Judge to fund the activities of the Office.  Each Administration Judge shall publish for the public a complete accounting of all expenditures at the end of each year of the term naming each entity paid and the purpose of each payment.  Any unused funds in the Special Account shall be returned to the Treasury of the United States on the date the account is funded for the next year.  

Section 3.  The term and compensation of each Administration Judge shall be governed as follows:

The term of the each appointed Administration Judge shall commence on the first day of January for the year of the appointment and shall run for four consecutive years.  The term of each Elected Administration Judge shall commence on the day of election and shall run to the end of the term of the appointed Administration Judges.

Any person appointed or elected Administration Judge may only be appointed to serve a single term in that office for the State.

Each Administration Judge shall be compensated from the Special Account at the level established by the Congress of the United States for the President of the United States.

Each State Legislature may remove and replace for the remainder of the current term the Administration Judge appointed by that State Legislature or that State's Governor for acts that constitute a breach of duty as set forth herein and reappoint a successor to fulfill the remainder of the term.  An Administration Judge shall be in breach of duty for embezzlement of funds, failure to publish an accurate accounting of the expenditures of the office, conflicts of interest that compromise the functions of the Office or failure to exercise the functions of the office with due care.

The Elected Administration Judges may be removed and replaced by a sixty percent vote of the State appointed Administration Judges at the annual meeting of the Council of Judges.

Section 4.  Powers exercised by the Administration Judge are:

Subject to the funds available in the Special Account, each Administration Judge may hire and compensate such personnel as in his or her sole discretion deems necessary to perform the functions set forth in this Article.  Such employees shall serve at the pleasure of the Administration Judge that engages them.

Any Administration Judge has the discretionary power to transfer funds from his or her Special Account to the Special Account of another Administration Judge in another jurisdiction.  

All direct employees, contractors or other persons receiving compensation or remuneration in exchange for for goods or services from appropriations of Congress or any other sources or proceeds of borrowings received by the United States, other than those employees of the United States elected by the people, electors or the Legislatures of the States, are Subject Persons to the oversight and lawful decisions of the appointed Administration Judge in the State in which they reside.  No Administration Judge may discuss the conduct of the duties of the Office with any elected employee of the United States except in an open public hearing initiated by the Administration Judge.  No elected employee of the Untied States may approach or initiate communication with an Administration Judge while serving in an elected office for the United States.  Any elected employee of the United States judged by the Council of Judges to be guilty of violating this restriction shall become a Subject Person under the jurisdiction of the Administration Judge where he or she resides.

Each Administration Judge shall have the power to conduct investigations of all Subject Persons with an independent power to subpoena information in any form from Subject Persons to support such investigations by the Office without recourse to the courts as established by Congress or this Constitution.  Any Subject Person failing to comply with a subpoena issued by the Administration Judge may be removed from office and banned from receiving any compensation from the United States from any source at the sole discretion of the Administration Judge.

Each Administration Judge may receive information about the conduct of a Subject Person from any citizen of the Untied States and at the Administration Judge's discretion, initiate inquiries based upon that information.

If an Administration Judge makes a finding that any Subject Person has abused his or her office or exceeded his or her authority in a way that violates or abridges the personal or property rights of any citizen of the United States as defined in this Constitution,  an Administration Judge may ban that Subject Person from receiving any compensation from the United States from any source, and declare such Subject Person ineligible from employment by the United States for any time period up to the end of his or her natural or legal life.  Upon making a finding that results in any penalty, The Administration Judge shall make available a public record of all of the evidence and determinations used to render the finding.

Section 5.  Any Subject Person declared ineligible for employment or compensation from the United States may appeal such a decision to the Council of Judges.  A finding by any Administration Judge may be reversed and eligibility for employment and compensation by the United States restored by a vote of sixty percent of the members of the Council of Judges.  No decision by an Administration Judge or the Council of Judges may be reviewed by any court of the United States or any State thereof, nor be subject to interference by the Congress or the President.  

I welcome any comments or suggested refinements or modifications to the proposed Fourth Branch Amendment.

Intended consequence of the indirect approach ...

I recall reading about the controversies about "Operation Moolah" announced by General Clark in April of 1953, wherein the U.S. dropped leaflets over numerous North Korean and Chinese air bases offering $50,000 in cash for any pilot who defected south with a MiG-15, and an additional $50,000 for the first defection.  I asked my father if he had been involved in the operation.

When he said he was directly involved, I was particularly curious if he considered the operation a success given that the first defection did not occur until September 21, 1953, two months after cessation of hostilities.  He had no idea that there was a debate among  historians about the issue.  

My father was quite amused by the controversy and told a version of what happened very different from anything I have seen published.  Indeed, his version is an example of Liddell Hart's indirect approach that probably belongs in the textbooks.   

To wit:

By 1952, UN troops in combat enjoyed total air supremacy in all areas where ground troops were in contact.  This was largely because the MiG-15 lacked the range to penetrate much south of the Yalu River with enough maneuver energy to engage in air combat.  The CIA learned in early 1953 that the Soviet Union was planning to remedy this by supplying the North Koreans and Chinese with drop tanks copied from those employed by the USAF F-86 aircraft.  

The point of the "Operation Moolah" plan was not to capture a MiG-15.  By that time the MiG-15 held no mysteries for the U.S.  The point was to induce the Soviet Union to withdraw the drop tanks that would extend the range of the MiG-15 and subject UN forces to attack from the air.  

According to my father, immediately after the first leaflet drop, all retro-fitting ceased, all drop tanks in China were withdrawn and no new tanks were shipped into China before the cease fire was announced.  His view was that Operation Moolah was a complete success, and the later defections after the end of the war were a side-show of little practical importance.  

So what to do about medical care: a modest proposal ...

The problem with medical care is that repeated and draconian interventions by the government have short circuited most of the market mechanisms that would normally lead to the efficient development and delivery of medical services for the consuming public.  These interventions have created powerful fiefdoms with enormous economic incentives to protect the manor houses.  Thus there is no avenue to address a secular progression that will inevitably collapse the finances of the federal and the state governments of the United States.

In addition to the complete hash the government has made, medical care is delivered in a way that intrinsically complicates the operation of market processes:  generally, the one who suffers demands a surcease of sorrow, but specific types and quantities of procedures, medicines, devices and treatments that might grant relief are specified by the patient's agent, a medical professional.  Sadly, that agent, who usually will actually want to attend to the needs of his client, is still subject to crosscurrents (whether from fear of litigation or opportunities born of reimbursement rules) that may distort his incentives to provide the most efficient and effective care.

The real fact that underpins this structural defect is that, beyond the most common maladies (common cold) or injuries (fractured arm),  the one who suffers has been left largely ignorant of how to diagnose his illness and rendered impotent in treating it.  Great systems and institutions have been erected largely to capitalize on this fact.  

Our problems are derived from the progressive impulse to step in and protect the ignorant and impotent by regulating the production of health care services, and thus necessarily restricting their supply, and then when the price goes up, subsidizing demand, and then the price goes up more, putting a lid on it an rationing the consequent shortages.

IT WOULD NEVER OCCUR TO THE PROGRESSIVE MINDS THAT LEAD OUR GOVERNMENT THAT INSTEAD OF PROTECTING THE IGNORANT AND IMPOTENT, WHY NOT ELIMINATE THE IGNORANCE AND EMPOWER THE NEWLY COMPETENT.  NO DOUBT THEY RECOGNIZE TO DO SO WOULD REDUCE THE CLIENT BASE THAT EMPOWERS THEM AND ENRICHES THEIR COMMERCIAL CRONIES.

Suppose that instead of or even in addition to the current mess, the following were done:

(1)  The NIH or a private foundation would spend, say, $100 million to develop a complete course of study and course materials that could be offered one hour per day for each year of K-12.  This course of study would be age appropriate and start with basic sanitation and microbe awareness in Kindergarten through advanced first aid in middle school through disease diagnostics, treatment and rehabilitation in high school.  Or whatever is the maximum program that knowledgeable professionals could develop.  Note that the number of hours of instruction accumulates to almost exactly the number of hours of instruction required to get a Bachelor's degree at most universities.  And all of the hours would be focused on developing practical knowledge about something truly meaningful in every person's life.  

(2)  The NIH would develop a series of qualifying tests that would ascertain the proficiency of each student at various stages of development (say at the end of the sixth, tenth and twelfth grades).  

(3)  The program of study and course materials could be offered free to all school districts and private schools in the nation, as well as online to anyone who wished to participate.  Incentives would be offered to induce the school districts and teachers' unions to enthusiastically participate.  The hour each day spent on the course of study would be in place of some other course, and no additional hours would be put into the school day.  

(4)  At each level of qualification (as determined by the standardized tests), participants in the K-12 and online programs would be able to offer their services to themselves, family, friends and even the public to treat various types of conditions.  The pharmaceutical, medical device and testing industries would be granted sanction to offer the drugs, devices and perform tests prescribed by the qualified so that they could perform the services they were qualified to perform.

(5)  The pharmaceutical, medical device and testing industries would be encouraged to develop and offer treatment programs, tests and devices commensurate with the skill levels of the newly qualified.  Private vendors could be licensed set up shop to offer access to complex diagnostic equipment and advice to those qualified to take it.

Of course, many treatments and controlled substances would remain in the purview of graduates of medical schools.  Heart and brain surgeons would do surgical procedures that use the specialized training and practice required to do heart and brain surgery, oncologists would administer their dangerous poison and  radiation therapies, ophthalmologists would treat eye diseases, and orthopedic surgeons would insert titanium rods to join bones and replace hips and knee joints.  But when the average person is trained to read and understand WebMD, knows how to do advanced first aid, and can monitor, document and track the health progress of themselves and their family and friends, much of what constitutes general/family practice could be either rendered much more efficient or offloaded to qualified self-help practitioners entirely.

The blowback will contend (indirectly, of course, because the anointed seldom say what they mean in public) that the average person cannot hope to learn and comprehend the substance of the information needed to recognize, diagnose, treat or refer people with medical problems. Such doubts must be confronted by the heroic life-saving battlefield deeds of thousands of combat medics trained by the much maligned knuckle-draggers in the Air Force, Army, Navy and (gasp!) the Marine Corps.  The anointed must deny the crucial services performed by paramedics and EMT's every day all over the country.  They must reject the competence of the American citizen in favor of their all-knowing wisdom as proven by their ability to talk.

But even suppose they are right and only twenty percent of students going through K-12 and online training can pass the qualification exams.  Then over the next thirteen years the supply of medical expertise available in society will have been increased by an order of magnitude.  The qualified will be naturally dispersed all over the nation -- roughly in proportion to where people live.  Interestingly, the qualifying tests will also identify a pool of individuals with aptitude and the equivalent of four years of practical medical training coming right out of high school or off the internet.  This could offer feedstock for accelerated training in medical schools to fill up needed specialties.  

The increase in aggregate supply will inevitably and dramatically reduce the price of medical services.  And, if done right, the marginal cost of this program would be negligible so the declining prices would reduce the strain on financing government.

Specialists can further specialize and refine their skills, existing general practitioners can organize the best and brightest of the newly qualified into an efficient business model.  The pharmaceutical, medical device and testing industry can develop more and more sophisticated (i.e., easy to use) drugs, implements and testing kits.  

And best of all, consumers will be more educated and, besides knowing better habits, can be more directly involved in their diagnosis and treatment so that the medical professional is less likely to be susceptible to conflicts of interest.  Also, each individual will be more self-sufficient and sovereign as is envisioned in the American tradition.

The problem of health care ...

From a statistical and practical point of view, the health and longevity of the citizens of the United States has dramatically improved over the past century.  Much of the improvement can be attributed to great technological changes that substituted chemical pollution for exceedingly dangerous biological pollution (i.e., automobiles that produce carbon dioxide and water instead of horses that broadcast water polluting and disease laden animal feces into the public thoroughfare and private abodes).  This has been augmented by direct local government investments in water quality, sanitation and public health efforts in pest control.  Beyond this, discoveries from medical science have added to the public health arsenal, particularly vaccination programs and a proliferation of antibiotics  Such unambiguous advances primarily served to virtually eliminate child-killing typhus, typhoid, diphtheria, polio, measles, whooping cough, tuberculosis and other now nearly forgotten diseases that harvested such a large crop of our young.

Sanitation’s success spawned a whole new set of health priorities where efforts focused on problems associated with not dying in childhood.  In particular, treatment of diseases such as cancer, diabetes, cirrhosis and heart disease that are in part causally related to the time individuals spend living indulgent or self abusive lifestyles.  

While the early achievements of technology and positive public investments served to increase longevity with amazing efficiency, the progressive public policy intrusion into the actual provision of medical care has not had such positive results in dealing with the unintended consequences of longevity.  Indeed, the progressive approach has triggered processes that are now creating a choice between the economic viability and the basic humanity of the western world.

To understand the root of the problem we face, one must understand the fundamental impulse of the progressive.  Generally, the progressive is someone who is articulate, i.e., can speak clearly and convincingly, but who cannot do much else otherwise productive.  The progressive's gifts allow the use politics to harness people who actually know how to do things in the physical world to do the progressive's will.  The progressive Zeitgeist must maintain that the common man is irretrievably ignorant because he is unable to grasp deeper truths revealed to what Sowell terms "the anointed."  In their view, only educated elites (those educated at institutions fashionable with the anointed) could hope to provide proper policy for complex social issues issues.  

Indeed, the progressive educational design attempts to insulate the ordinary citizen from things that promote, in the words of John Dewey, "pernicious individualism," that sense of personal sovereignty that is the basis for the individual initiative and innovation and that makes a person difficult to bring to the fold.  Such a system avoids inculcating the kind of knowledge and values that would make people independent and self-reliant.  The progressive education for the "masses" attempts to convince the young that achievement is somehow produced by being a docile and cooperative member of a group that will submit to the (again, Sowell's words) "vision of the anointed." 

That the vision mainly serves to provide for the individual needs of the anointed could probably go without saying.  But it comes mainly, in the form of a plethora of taxpayer funded employments filled with people who are at best 'experts in things that are mainly a matter of their opinions' -- to paraphrase Charles Shultz in "Peanuts."  

Of course since progressives are largely articulate incompetents, the only way they could approach the issue of improving health care was either to spend someone else's money on perceived or manufactured problems or to promulgate laws and regulations to control those who actually know how to promote health, cure disease or relieve pain.  

Progressive government started by directly allocating resources to benefit the health and medical care of certain classes of individuals.  Once this was in place, all of the normal public choice processes took over and the power to be gained from the discretionary allocation of vast resources to targeted groups naturally corrupted public-arena decisions.  Moreover, using government agencies to regulate the provision of services created massive opportunities for individuals to profit professionally and personally by moving between between "public service" NGO's, crony commercial interests and government agencies. 

From an economic point of view, the net result is that almost all "health care" policies promulgated by the Federal Government cumulatively involve three elements:  (1) restrictions on supply, (2)  inflation of demand, and (3) feigned surprise when prices rise.  And the rise in prices is used by the anointed as a reason for more progressive reforms.

The "Affordable Care Act (ACA)" initiative is the latest in a long string of government actions to address rising health care prices by increasing the number of people whose health care is paid for by someone else, i.e., inflating demand.  The ACA additionally restricts supply by increasing the fealty that those who know how to help people must pay to those who mainly know how to talk about it.  The ACA imposes a massive reporting burden on providers that drain existing resources.  Moreover, it interferes with efficient and effective treatment with regulations on the treatment regimes that will be reimbursed for different classes of patients.  Once more, demand is massively subsidized by wealth transfers and supply is constricted, so either price must radically increase or the anointed must step in and enforce either direct or queue rationing to, in the words of Walt Kelly's Pogo, "divide the shortages amongst the peasants."  

The consequent distress caused by the ACA now threatens to make the progressives pay a cost at least for the next election, since the incompetence of the education system designed by the progressives has left the country with a sizable number of individuals still not subjugated to the vision of the anointed.

But it is doubtful that the election outcome will offer much in the way of real solutions to the health care dilemma: To Wit: (1) massive federalization of health care finance starting with employer tax incentives, then Medicare, then Medicaid and now the ACA have centralized the economic incentives in the demand for health care; and (2) an incomprehensible regulatory morass has corrupted the development and delivery of medical technology, from drugs to diagnostic testing  to treatments available to medical devices to the very treatments prescribed and applied by medical professionals.  

Thus the normal market processes that efficiently allocate resources to continually improve products and delivery of services and drive down prices have been short circuited.  So we are left with a couple of hammers to which everything looks like nails: a Congress that can only pass bills whose effects are unknowable, or vote to repeal laws whose destructive effects have been realized but which will be vetoed by an entrenched administration that will continue in its primary quest to destroy private sector involvement in third party health care finance, leaving an apparent Hobson's choice to the hammers -- single-payer or chaos.

Our only hope is that the primary outcome of this fiasco will be to finally discredit the vision of the anointed.  This is fairly likely given that the overall progressive program has already rendered the nation insolvent.  Although the progressive program can continue to lurch forward in an insolvent nation, the bullet in the brain comes when the nation runs out of liquidity.  This happens not because the Federal Reserve can no longer create money for the Treasury, but because the money it creates is worthless.  It is likely that such a catastrophe will be endured before people can act to implement the real solutions to the problems of health care in the United States.

My next post will discuss an approach to the provision of lower cost and more effective health care that could be implemented now without material marginal government investment, but which will not be considered as long as the anointed demand control over the lives and health of the "masses" they pretend to shepherd.   

What happened AFTER Ike went to Korea ...

About two years before his death, my father, Jack Knight (1921-2004, Colonel, USAF), described the remarkable tactics President Eisenhower used to bring an end to the Korean War.

My father's account was rendered about two years before his death and came from his experiences working with the CIA in 1952-1953.  Whenever General Cabell (once Chief of Air Force Intelligence and then Deputy Director of the CIA) was in Korea, the Philippines, or Japan, my father served as his personal pilot. Moreover, my father flew numerous "special ops" missions seeding, supporting and recovering agents in Communist China.  At one point, for example, he entered Communist China in a seaplane and landed at a base hidden in a cliff wall of a river [1].  There he prepositioned canisters of weaponized anthrax for use in a plan to cause a massive kill of cattle and people in southern China with the aim of inducing chaos in the area and a consequent withdrawal of the Peoples Volunteer Army (PVA) from Korea.  This Truman Administration initiative was abandoned once Eisenhower took office.

As is well known, negotiations to settle the conflict between the UN and the PVA/KPA began in July of 1951, even as a combat meat grinder continued.  The protracted negotiations were bitter and frustrating, as changing battlefield conditions hardened or softened the positions taken by each side.  Negotiations finally concluded with a ceasefire on July 24th, 1953, six months after Eisenhower was inaugurated in January of 1953.

The question my father addressed was why the negotiations actually concluded on July 24, 1953.

After several months of a seemingly endless back and forth with the Communists, Eisenhower's strategists developed a simple plan to conclude the negotiations.

In May/June, CIA operative leaked indications that Eisenhower was considering the use of nuclear weapons against Chinese and Korean forces on both sides of the Yalu River.  In mid-July, a message was transmitted to what my father termed a “Silverplate Squadron"[2]  based at McClellen AFB, tasking its aircraft to fly to Kelly Field, near San Antonio, Texas.  The clearly top secret order was transmitted via the Army Signal Corps unit at Fort Monmouth, New Jersey, because it was known by Eisenhower to have been penetrated by Soviet spies. Kelly Field was significant, because it was (and is) adjacent to Medina Base, the Air Force depot where all operational U.S. atomic weapons were stored at that time.  When the Silverplate aircraft landed at Kelly, another message was transmitted via Fort Monmouth, tasking the Medina Base to deliver a number of atomic bombs to Kelly for upload them into the bomb bays of the Silverplate B-50's.  Upon completion of that task, another message via Fort Monmouth ordered the Squadron to Offutt AFB in Nebraska. Once they landed at Offutt, the next message via Fort Monmouth tasked them to fly to Elmendorf Field, Alaska.  The next message via Fort Monmouth ordered the fully loaded Silverplate B-50's to fly from Elmendorf to Japan (I believe my father said Misawa, but I am not totally clear on that).  Each message relayed by Fort Monmouth was in turn delivered to the Soviet embassy in Washington and then to the Soviet Union.  A final message was sent to Fort Monmouth for relay to the Secretary of Defense on July 24th, 1953, confirming that the Silverplate B-50’s had landed in Japan.  On that day, the KPA/PVA accepted the ceasefire terms, and the war was over.

As an interesting side note, my father always contended that Eisenhower shut down the Army counter-intelligence investigation of the Ft. Monmouth infiltration and turned on Senator Joe McCarthy in order to protect his disinformation channel at Ft. Monmouth for as long as it was useful.

I have never heard any other account of this sequence of events to which my father was a first-hand witness.  I would be very interested in hearing from others either involved (if any of those are still with us) or who knew anyone who was involved.

[1] In 1952-3, my family lived at Clark Field near Manilla in the Philippines.  One of the most vivid memories of my childhood was a day in 1952 when the Chaplin and Base Commander came to our door and informed my mother that my father was missing and presumed dead.  Four days later my father walked in the door saying that there was a mistake and it was another Jack Knight who had been killed.  In fact, when he was attempting to leave the cliff-wall base on the anthrax mission, the engines on his SA-16 would not start and it took his crew chief three days to get the engines running.  Because of the extreme security and radio silence, the Air Force did not know his status and notified our family when it seemed all hope was lost.

[2]  B-50 bombers then configured to carry nuclear weapons -- though the "Silverplate" code name had been dropped by 1953, he said Air Force personnel still commonly referred to the units by that designation.