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November 2: The Malpractice Tsunami

Another article by Jay Gaskill from The Policy Think Site: http://www.jaygaskill.com    
As Posted on The Out-Lawyer’s Blog: http://www.jaygaskill.com/blog1   
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In the normal course of our personal affairs, the professionals on whose expertise and special knowledge we rely, among them our lawyers, doctors and accountants, are held by law to a particular performance standard that includes a degree of faith and allegiance, as well as the avoidance of negligence.  When that standard is not upheld and we are damaged as a result, we are entitled to sue our lawyer, doctor, accountant or other professional for monetary damages.


On 10-27- 2009, in a piece titled, “Legislative Malpractice, the Whores’ Rule”, I introduced the notion that the Congress is guilty of massive malpractice.  That piece, which focused on the Health Care debacle, is reproduced it in its entirety below with an additional comment at the very end of today’s piece.



Suing Congress?


The Congress of the United State consists of professional politicians.  Here, in outline, are just two of several hypothetical malpractice charges:




In re Citizens of the United States, PETITIONERS, vs. the Congress and President of the United States, RESPONDENTS


This is a Petition for the direct exercise of this Court’s jurisdiction, based on Article Three, Section Two of the US Constitution:


“The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States [and] ... to Controversies to which the United States shall be a Party.”


Petitioners submit that the power of this Court, in Law and Equity, includes the authority to redress profound harm suffered by the Citizens of the United States when that harm results from the violation of the solemn oaths of office by culpable members of Congress and the President, as provided in Article Six of the Constitution:


“I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.” 


Article Aix: “The Senators and Representatives...and all executive and judicial Officers ... of the United States ... shall be bound by Oath or Affirmation, to support this Constitution.”  [Emphasis added.]


Petitioners submit that the purpose and effect of the Oath of Office was to impose a duty of loyalty and care on all Senators, Representatives and the Chief Executive to all the citizens of the United States.  We submit that in words and effect the Oath establishes a fiduciary duty of loyalty and the exercise of due care.  Petitioners further submit that whenever breaches of those duties are violated by certain extreme conduct, such as fraud, dereliction of duty, culpable negligence or a reckless disregard for the consent of the governed, this Honorable Court retains jurisdiction to fashion appropriate remedies.


Therefore We the People of the United States of America, Petitioners, hereby allege:






Politically motivated coercion was exerted by Respondents via allied legislative and regulatory measures on large US lending institutions to make residential mortgage loans to borrowers who were otherwise unqualified for those loans, and unlikely to be able to pay them back.  Two quasi-public lending institutions, commonly known as Fanny Mae and Freddie Mac, were systematically underfunded, then taken over by the federal government at taxpayer expense when, inevitably, they failed.    


“Taxpayer money continues to flow to ailing mortgage giants, Fannie Mae and Freddie Mac. Despite having already spent $160 billion bailing out Fannie and Freddie, we are on the hook for much, much more; some current estimates of our total exposure relating to Fannie and Freddie run as high as $1 trillion.”


“The Federal government will provide an unlimited guarantee to the troubled firms through 2012, and all this without requiring Congress to pass any further embarrassing bailouts of Fannie Mae and Freddie Mac.


“The very concept of an unlimited guarantee from the Federal government, without a vote by Congress, is shocking and unwise. But that explains the timing: It’s an old Washington trick to drop news you’d like to see buried on the Friday before a three-day weekend or a day when few people are paying attention--like Christmas Eve.”


Forbes July 10, 2010


The foregoing policies caused the entire US Banking system to be infected with over-valued residential real estate, leading to a liquidity crisis and default cascade in 2007-2008, that in turn triggered massive federal government bailouts and takeovers.  While the overvalued US real estate inventory was partly the result of private market decisions, incompetent federal policies and negligent oversight amplified the severity of that problem ten fold. Government negligence turned what could have been a temporary, but manageable correction into a massive economic crisis, an intractable recession and the expenditure of at least two trillion dollars in public funds.








In March 2010, President Barak Obama insisted on rushing through a massive heath care reform package, hereafter Health Care Reform.  The Democratic Congressional leaders chose to bypass the public hearing and review process, then employed parliamentary maneuvers to truncate and even shut down robust debate. When Congress delivered Health Care Reform to the White House for the President’s signature, the bill had not been fully evaluated by the Congressional budge Office, let alone studied in appropriate detail by members of Congress or the President, yet it set in motion a truly massive set of changes representing the most complete and detailed restructuring of the US Heath Care delivery system in history. 


Neither the President of the United States nor the overwhelming majority of House and Senate members who voted for this reform package had actually read this document.


This legislation was presented to the public (Petitioners) by making false representations; these false misrepresentations by Congressional leaders and the President included assertions that:

  • No one would be forced to his or her current physician,
  • nor health case provider,
  • nor insurance provider.
  • That health insurance costs would not be increased;
  • that the measure would not raise taxes nor increase the deficit;
  • and that access to needed medical treatment would not be impaired. 


In spite of the dereliction of duty by Congress in failing to study, let alone carefully read the legislation, all of the key leaders who supported it knew that case for enactment just outlined was not based in fact. Moreover, the leading members of congress and the President knew that it was false and deliberately misleading.  The evidence will show that the President, the congressional leadership and many democratic members clearly understood that the measure was designed to drive private health case providers out of business, leaving a government-run, single payer model the only remaining option. 








Sadly, common citizens do not get to sue our federal government, no matter what it does to us –without its consent.  This is known as the doctrine of sovereign immunity, which is partly based on language from the 11th Amendment to the Constitution (“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”)  I note that the quoted language from the 11th Amendment only addresses using federal courts for lawsuits between citizens and state governments.  Standing alone, the 11th Amendment would not bar something like this hypothetical lawsuit.  In the real world, the prospects of US citizens being allowed to sue POTUS and/or the Congress are so complicated by the statutes that govern the jurisdiction of the federal courts, and by separation of powers considerations, that this hypothetical lawsuit goes nowhere. Just think of the magnitude of the enforcement issues.  SCOTUS is never likely to have nine jurists willing to suffer the consequences of such a decision. 


So, have we have suffered colossal political malpractice without a remedy? 


The real remedy for legislative malpractice is termination of employment. 


And the first opportunity for that to take place will be November 2, 2010.


This is an historic, stark conflict between the current reigning political elites and a working majority of the American people over major issues during a huge financial crisis. 


I was amused by reports that immediately following the “Great Firing” of 2010, the President intends to leave town for a spell.


Here are excerpts from my earlier piece, posted before the Health Care bill passed, followed by some concluding points.




It is now clear that the Senate heath care bill, while still shrouded in verbal fog, will do at least three things: (1) It will spend more than American’s can afford.  (2) It will accomplish less than promised. (3) Overall, most Americans, especially those on Medicare and working for small businesses, will be forced into inferior medical care over time in order to pay for the whole thing.


The Hippocratic Oath enjoins physicians, “First:  Do no harm.”  The congress is not bound by that wise injunction.  Nor will our elected officials be accountable in other ways.


Consider the malpractice laws:


A physician in the OR sews up a patient, negligently leaving a metal clip inside the body cavity.  A lawsuit ensues and the physician is ordered to pay the patient damages.


A lawyer misses a critical filing deadline for a client and an unjustified seizure of the client’s bank accounts follows, resulting in the loss of the client’s livelihood.  A lawsuit is brought and the lawyer is ordered to compensate the former client.


YOU run a red light and collide with a school bus, injuring six children.  You are sued and ordered to pay them compensation for your negligence.


The first two cases are classic professional malpractice cases, resulting in the award of compensatory damages for the failure of a professional to keep up the standards of the profession.  The third is a case of ordinary negligence (lay malpractice is you will) in which YOU failed to maintain the standards expected of an ordinary motorist, causing damages to others because of your negligence.


In these examples, every negligent actor is accountable under the law, and can be held liable to pay for his or her damage-causing errors.


Hundreds of our elected representatives vote to enact a law that destroys businesses, causes the fatal delay or full-on denial of medical care to millions of Americans.  At least three hundred and fifty of these elected officials did not even read the provisions of the legislation for which they voted, then (after community protests) expressed “surprise” that “many constituents were hurt” (potentially, if the legislation becomes law and immediately, by the attempt to railroad through an execrable piece of Beltway social engineering without debate).   The potential monetary damages from this legislative malpractice are in the hundreds of million dollars, possibly several times that when the collateral effects are taken into account.


A revised version of this legislative atrocity has been burped out of the US Senate, but the embedded poison pills (such as trashing or burdening intelligent & creative health care payment solutions like tax protected savings plans coupled with inexpensive catastrophic care insurance) are still in the mix. 


This remains a stealth plan to destroy private health care coverage by burdening it beyond capacity while selectively favoring public plans (disguised as “optional”) via subsidies that depend on magic “savings” that will never be realized. 

All of this sleight of hand is taking place against the backdrop of an unprecedented public opinion consensus:


We (the taxpayers) just don’t trust the legislative process right now because we have already been mislead; we were almost rolled this summer; and we now favor limited, transparent reform, carefully targeted. 


We may be naïve, but we still believe that our elected representatives are still morally bound by the Hippocratic injunction, “First, do no harm.”


Not one of the negligent elected is held liable.


Some would claim that this is because of a doctrine called “sovereign immunity”.  But the real governing doctrine is “whores’rule ”.  This doctrine focuses on the standards to which our professional politicians are held.  Where whores are concerned, it’s just a matter of whether you got screwed, not how well.....


It now comes down to this:  Do the blue dog democrats have the spine to stand up to their out-of-control congressional leadership?







History has answered my last question:  The Blue Dogs did not have enough spine.


Blue Dog democrats got their name when the left wing movers and shakers who still run the Democratic Party froze them out of all of the real power discussions.  They stayed in the cold so long that they turned blue.  Many in the current crop of putative Blue Dogs were so grateful to be readmitted to the center of power that they lost the will to resist the leadership.


Of the Blue Dog democrats who voted against the original House version of Health Care Reform package (I’m thinking particularly of Congressman Stupak who led the fight then caved), a sufficient number later folded under pressure so that the measure passed by a margin of seven votes (219-212). 


The 34 democrats who ultimately voted against Health Care Reform were given a pass by Speaker Pelosi.  Had she needed more votes, any reasonably astute observer of politics should be forgiven for a degree of cynicism:  More of these Blue Puppies could have been bought.


There will be a price to pay.


‘”The Blue Dogs are vulnerable,’ said Carol Cassel, a political scientist at the University of Alabama. ‘They're not in safe Democratic seats at all. ... Some of the voters who helped sweep them in won’t be at the polls.’”


“Why would voters punish even the Blue Dogs who held out?” ...Because these members voted for Speaker Pelosi on arrival in congress and remain committed to vote for Speaker Pelosi if they are reelected. 


The point of this analysis is to remind everyone that the Democratic Congressional incumbents are not facing some loosely organized protest of easily manipulated discontents, or some right wing stunt.  Republicans could easily experience the same wrath.


We are witnessing an authentic instance of a self-coordinated populist movement by a very large group of highly motivated voters with access to the internet.  This is a uniquely American populist revolt. The underlying reality will become evident soon enough:


The productive elements in our polity are rising up against the manipulative elements inside the Beltway. 


This is the best informed populist uprising in US history and it is in its beginning stages. For now, the political class must face a MALPRACTICE TSUNAMI.  And, yes, there will probably be “innocent” casualties.  


The new crop of Republicans should remember the reason for their pending victories.  When the smoke clears in January, all members of the Congress will be on probation...every one.  This group of exercised citizens will not go to sleep at the switch while the country hangs on the edge of financial ruin.  And the next crop of blue Dog Democrats (and, yes, the country needs them, too) need to return to the table with more spine than whine.




Jay B Gaskill is a California lawyer who served as the Alameda County Public defender before her left his “life of crime” to devote full time to writing.  His profile is posted at www.jaygaskill.com/Profile.pdf .




Other Fiction by Jay B Gaskill is currently available for purchase on-line:
The Lost Souls Coffee Shop (mind bending stories)
The Stranded Ones (a thriller)
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