There was actually a fairly big story in health care policy news this week. There’s a reasonable chance you missed it, what with the Penn State issue and Rick Perry’s imploding campaign. Oh, and the fact that major media outlets basically buried the story. Short version: the DC Circuit Court of Appeals upheld the national mandate in an opinion written by a Reagan appointee that basically throws down the guantlet in making the case why even conservative jurists should find this constitutional.
First, Steve Benen on the lack of media coverage. To summarize, he’s got some nice data showing that the decisions upholding the ACA get way shorter stories, but more importantly, almost always get buried in the paper. He then takes on the possible reasons for this:
The trend, in other words, continues: conservative rulings receive more coverage, longer articles, and better placement, regardless of merit. TheWashington Post continues to be the most one-sided — the three conservative rulings were all treated as front-page news, while the five rulings in support of the law were either buried or ignored…
The better argument is that rulings upholding the law maintain the status quo, which almost by definition, makes them less noteworthy. This is not without merit, but there are implications associated with this.
The news-consuming public doesn’t necessarily follow the details of these legal developments, and Americans find important what the media tells them is important. With that in mind, it seems very likely the public has been left with the impression that the health care law is legally dubious and struggling badly in the courts because that’s what news organizations have told them to believe [emphasis mine]— rulings the right likes get trumpeted; rulings the left likes get downplayed.
But I thought the liberal media was simply carrying water for Obama! This isn’t “conservative media bias,” this is just dumb and irresponsible media bias (what most of it actually is).
Meanwhile, in Slate, Simon Lazarus explains just why this decision was so important (and therefore deserved much more coverage).
Senior Judge Laurence Silberman, a Reagan appointee writing for himself and Carter appointee Harry Edwards, directly confronted the challenge to the individual mandate, and rejected it outright. That’s a formidable statement from a conservative icon—and a warning shot to the justices of the Supreme Court.
Silberman boasts a history of service to Republican presidents and conservative causes unmatched by any member of any court, including the current Supreme Court…
His opinion is not equivocal: He openly scorns the Affordable Care Act’s opponents as unable to “find real support [for their case] in either the text of the Constitution or Supreme Court precedent.” [emphasis mine] And while Silberman’s vote for upholding the mandate took most media observers off guard, it is neither isolated nor necessarily surprising. Until the ACA neared enactment in late 2009, almost all mainstream legal conservatives had—for nearly six decades—endorsed the post-New Deal Supreme Court’s consistent deference to legislators’ judgments about how best to regulate the national economy.
Anyway, more really good stuff in there. This really was a very important opinion that received shamefully little media coverage. Of course, the media can now simply say, well, none of this matters because we know it all depends upon the Supreme Court, but Lazarus makes the case that this matters for what the Supreme Court does:
In sum, as the conservative justices brace for their turn in the health reform wars, they are receiving pointed recommendations—from their own side of the political and ideological spectrum—to leave this battlefield to politicians and voters. As Silberman notes, deflecting still another factoid often emphasized by ACA opponents, whether Americans can be required to purchase a product or service seems “a political judgment rather than a recognition of constitutional limitations.”
If Lazarus is right, the Affordable Care Act will be held up by more (and damn well should be) than just a 5-4 decision.