Discussing the utterly implausible main character of Charles
Dickens’ The Old Curiosity Shop, Oscar Wilde famously
quipped, “One would have to have a heart of stone to read the death
of little Nell without dissolving into tears… of laughter.” It is
similarly difficult to choke back the chuckles while reading
ostensibly serious attempts by progressive pundits and bloggers to
portray ObamaCare as alive and well despite being ruled
unconstitutional by U.S. District Judge Roger Vinson. For nearly a
year these people have been writing smug opinion pieces and snide
blog posts about Florida’s “frivolous” lawsuit, assuring their
readers that such a ruling was a virtual impossibility. Now, their
attempts to explain away the obvious implications of Judge Vinson’s
decision manifestly fail to pass the laugh test.
The most hilarious of these involves the “musket mandate.”
In their frantic search for some legal precedent that would
contradict Vinson’s assertion that Congress can’t “compel an
otherwise passive individual into a commercial transaction,” the
imminent scholars at the Daily Kos, Salon, the
Huffington Post, and more than a few mainstream “news”
outlets have exhumed the Militia Act of 1792. This was a law passed
by the 2nd Congress enabling the
President to call up militias if the country “shall be invaded, or
be in imminent danger of invasion from any foreign nation.” Because
the act also required each militia member to “provide himself with
a good musket or firelock,” these brilliant legal minds have
pronounced it the perfect precedent for the ObamaCare’s requirement
that every American buy health insurance.
Because that requirement was the primary target of
Vinson’s ruling, the mandate’s advocates have peddled the 1792 law
as proof that the government can indeed order citizens to buy
things. Unfortunately for ObamaCare apologists, this same argument
was raised shortly after Judge Henry Hudson struck down the mandate
in a separate lawsuit filed in Virginia. And it failed to pass
muster. Jeremy Singer-Vine at Slate, hardly a hive of Tea
Party types, disposed of it thus: “How good of a
defense, really, is the Militia Act for the insurance mandate? It’s
pretty flimsy.” Why? Because the ObamaCare mandate is based on the
Constitution’s commerce clause, while the Militia Act is
grounded (oddly enough) in its militia clauses. Any
attorney dumb enough to raise this argument before an actual judge
would be laughed out of court
Only slightly less entertaining than the “musket mandate”
is the claim that Vinson’s decision was a judicial anomaly that
won’t be taken seriously by the higher courts. The Washington
Post’s Ezra Klein provides an amusing twist on that widely
disseminated fiction. Klein
advises us that “a conservative legal scholar and friend” wrote
him to say, “There remains a very good chance that this will not
end up before the Supreme Court.… I’d wager just a little bit that
these lower court decisions will be reversed and the matter will
end there.” Setting aside curious similarities between Klein’s
writing style and that of his friend, it is odd that a conservative
would adhere so closely to the progressive party line. Klein’s
nameless correspondent even uses the term “outlier,” which comes
straight from the White House
talking points on the ruling.
Not everyone has been able to appreciate the comedic value
of Klein’s anonymous confidant. Jennifer Rubin, an attorney who
spent many years practicing law and whose knowledge of the Supreme
Court is considerable, was clearly not amused. In fact, she makes
it pretty
obvious that she doubts the authenticity of Klein’s
conservative friend: “Ezra Klein finds a ‘conservative legal
scholar’ to opine on whether the Supreme Court will take the
ObamaCare case. Unlike every law professor and advocate whom I have
talked to in the last two years on this case, Ezra’s gal or guy
says the court won’t bite.” Rubin doesn’t actually call Klein a
liar, but she does go on to point out that
“unlike politicians, virtually every ‘conservative legal
scholar’ is more than happy to go on the record, so I find it
especially odd that this one does not.”
The vain hope that the high court will refuse to hear the
Florida case has caused many of ObamaCare’s media apologists to
grasp at another judicial straw as well. This one involves an
obscure case, Alderman v. United States, which the Supreme
Court recently declined to hear. The case involves whether a
convicted felon can own body armor. What has this got to do with
ObamaCare? Well, the lower court held that the government could
legitimately forbid the crook from owning the body armor because it
crossed over state lines and is therefore covered by the interstate
commerce clause. Because the Court turned down the case, in effect
refusing to overturn this broad interpretation of the commerce
clause, ObamaCare’s media supporters hope that the Court might also
refuse to hear the Florida case.
Although such an obscure decision wouldn’t normally
attract the attention of the mainstream media, stories about this
case have appeared in dozens of major outlets including
Time, Salon, the Atlantic, the New
York Times and who knows how many blogs. Ironically, the
primary effect of this oddly pervasive coverage is to demonstrate
that ObamaCare’s media advocates still don’t get what the Florida
lawsuit is about. Alderman v. United States was about
regulating an activity (i.e. the purchase of body armor by
a violent criminal) while State of Florida v. U.S. Department
Health and Human Services is about regulating
inactivity (i.e. the failure to purchase insurance). As
Judge Vinson put it, “It would be a radical departure from existing
case law to hold that Congress can regulate inactivity under the
Commerce Clause.”
It would also be a “radical departure” from current
journalistic practice for ObamaCare’s media apologists to learn the
basic facts concerning the court challenges about which they write
opinion pieces. One such fact about the Florida lawsuit is that
it’s headed for the Supreme Court. Facing such realities and
reporting them honestly would certainly be easier and less risible
than dredging up irrelevant 18th century laws, inventing imaginary
conservatives, and parroting the latest listserv talking points
about hopelessly obscure court decisions. But such is absurdity of
advocacy journalism. Presumably, they believe it’s all for a good
cause. To paraphrase Wilde, all bad journalism springs from genuine
feeling.
