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.