So, a federal judge ruled that the Affordable Care Act is Constitutional. I had to dig down the Post and Times websites to find the article on it. It probably won’t merit more than a 3o second mention on evening newscasts. That is understable to a degree, it’s certainly much bigger news when major federal laws are held Unconstitutional. Yet, as Ezra Klein points out, the cumulative effect of reporting on the issue is sure to lead to significant misunderstanding among the American public:
I’m not alleging bias here: A judge upholding the status quo is not as newsworthy as a judge radically altering it. But the reality is that the public is seeing a lot of coverage of the rulings against the Affordable Care Act and almost no coverage of the rulings — which are substantially more numerous, particularly if you include the many cases that have been thrown out of court — in the law’s favor. That’s quite a gift to the opponents of the legislation. A typical consumer of news probably does not realize that the balance of the courts, at this point, have ruled the law constitutional.
What also won’t be reported, is how much smarter and persuasive this ruling is than the two striking it down. Jon Cohn gives a nice run-down. First, the judge eviscerates the economic activity/inactivity distinction:
As to the argument, put forward by the plaintiffs, that the mandate is unconstitutional because it purports to regulate “inactivity,” she dismisses that argument as “semantics.”
this Court finds the distinction, which Plaintiffs rely on heavily, to be of little significance. It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not “acting,” especially given the serious economic and health-related consequences to every individual of that choice. Making a choice is an affirmative action, whether one decides to do something or not do something. They are two sides of the same coin. To pretend otherwise is to ignore reality.
I think she does an even better job of going after the “if health care is Constitutional, the government can make you buy broccoli non-sense”
If the government can make you pay for health care, the critics say, then why can’t it make you buy broccoli? Or a GM car? Or anything else?
This second aspect of the health care market distinguishes the ACA from Plaintiffs’ hypothetical scenario in which Congress enacts a law requiring individuals to purchase automobiles in an attempt to regulate the transportation market. Even assuming that all individuals require transportation in the same sense that all individuals require medical services, automobile manufacturers are not required by law to give cars to people who show up at their door in need of transportation but without the money to pay for it. Similarly, food and lodging are basic necessities, but the Court is not aware of any law requiring restaurants or hotels to provide either free of charge.
It should be emphasized that this distinction is not merely a useful limiting principle on Congress’s Commerce Clause power. Rather, it is a basic, relevant fact about the operation of the health care market which is critical to understanding the ACA’s efforts to reform the health care system. The requirement placed upon medical providers by federal law to care for the sick and injured without recompense is part of the cost-shifting problem that Congress sought to redress by enacting the ACA. When a supplier is obligated by law to produce goods or services for free, there is bound to be a substantial effect on market prices if consumers’ behavior results in that obligation’s frequent invocation.
Doesn’t to take a law degree to know that that’s good legal reasoning and puts the opinions of Hudson and Vinson to shame. Of course, you’re not actually going to hear about that in any mainstream news articles. Maybe we can get Sarah Palin to tweet about it.