The National Law Journal had a story yesterday that is all too typical of the “opinion-article-cum-amicus-brief genre,” a genre that Carrie has already skillfully written about, and I have elaborated upon. Last week’s difficult oral arguments for supporters of the health-care law make it all the more likely that these attempts to influence the narrative will continue. As such, I want to use the NLJ’s story to expose three typical framing devices used by Obamacare’s supporters in these stories.
The NLJ’s story quotes eight sources. Of these, at least five are clearly liberal sources, four of whom are Democrat donors, three of whom donated to President Obama. The two conservative sources are law professor Orin Kerr, a Republican blogger who believes that the individual mandate is constitutional, and Michael Greve, who opposes the 26 states’ constitutional challenge to the Medicaid expansion.
This lack of balance is an egregious error that obscures the serious nature of the Obamacare lawsuit. Even the Washington Post believes that the “Solicitor General Donald B. Verrilli Jr. had his hands full defending the mandate . . . because it’s not an easy question,” and although “the government’s argument is strong enough to carry the day . . . it is not . . . a slam-dunk.” The Post “wouldn’t assume anyone who disagrees [with the government] is a hack.” If the Washington Post admits this, the NLJ could have at least found a single, full-fledged supporter of the Obamacare litigation to quote. If they needed help, I could have thought of a few sources, and they could have also referred to the unprecedented number of amicus briefs. This bias is remarkable, at least if you believe that the NLJ was trying to present a balanced account of the difficult decision facing the Court.
A misleading account of judicial activism
The NLJ attempts to frame a decision striking down Obamacare as judicial activism because the Court would be striking down consequential legislation, while refusing to defer to Congress. For example, Obama donor Neil Siegel argues that “you would have to go back to FDR’s confrontation with the Supreme Court to find a law so consequential being invalidated.”
This characterization of the Obamacare litigation is seen far too often. I’ve already written about this some here, but it’s worth elaborating on further. The litigation is not, by any definition, the work of activists making up legal doctrine just to strike down a politically unpopular law. Whatever the definition of “activist,” it is not “activist” to enforce pre-existing, reasonable limits on the Commerce Clause, and a lawsuit does not become “activist” because it invalidates a law. What good is a constitution if it never polices legislation or defines the boundaries of the acceptable exercise of federal power? Formal, categorical limitations on federal power are essential to maintaining our system of enumerated federal powers and structural checks and balances. This might be difficult, but it is not a task that the Court should avoid.
Even if Professor Siegel is right that striking down all or part of Obamacare would be unprecedented since the New Deal, this conveniently ignores why the Court would strike down such legislation; the mandate itself is unprecedented. As JCN points out in one of our amicus curiae briefs in this litigation, both the Congressional Research Service and the Congressional Budget Office found that Congress has never used its Commerce Clause power to mandate the purchase of a particular good or service as a residency requirement.
Appeals to “legacy” and the “legitimacy” of the Supreme Court
Finally, the NLJ quotes Bruce Murphy, echoing another typical talking point, arguing that Justice Kennedy “appears more concerned about his, and his Court’s, public image and legacy than many of his colleagues,” questioning if Justice Kennedy would “want to be remembered for having prevented some 35 million people from getting adequate health care insurance.”
This distortion assumes that Congress has no other way to increase access to health care, which is questionable, as Ross Douthat’s column on Sunday demonstrates by pointing to some alternatives to the mandate. This also ignores the mandate’s cost: giving the government the power to override the economic decisions of millions of Americans, and, as Justice Kennedy put it last Tuesday, “changing the relation of the individual to the government.” If anything, it is the justification of an intrusive national encroachment into millions of Americans’ lives that represents the great cost to society.
If the Court strikes down all or part of Obamacare, President Obama and the Democrat-controlled Congress that passed the legislation will be the ones to blame for violating our Constitution, not the Supreme Court for enforcing it.