Washington Post ‘Fact Check’ Of Obama’s Judicial Activism Statement Could Also Validate Birtherism

In a thinly argued “fact check” of President Obama’s recent criticism of judicial activism, the Washington Post concludes that Obama’s remarks were not entirely accurate in large part because “[s]ome would say that invalidating an economic regulation isn’t extraordinary at all.” Of course, “some” would also say that they were personally abducted by UFOs, or that water fluoridation is a communist plot, or that President Obama was born in Kenya. Normally, however, reliable media sources do not treat “some” people’s objections as a primary basis for a political fact check.

The Post would have been wise to follow that practice here, as its attacks on Obama range from minor nitpicks to complete misrepresentations of the law. Although the “fact check” meanders around some minor criticisms of the president — whether, for example, it was fair for Obama to say that a law that passed by a supermajority in the Senate and a narrow majority in the House enjoyed “a strong majority of a democratically elected Congress” — the meat of the Post‘s critique rests on Obama’s unambiguously true statement that it would be an “extraordinary step” for the Supreme Court to strike down economic legislation such as the Affordable Care Act.

To build the case against Obama, the Post spoke to two conservative attorneys. One of these sources was forced to resign from the Bush Administration after he made toxic comments questioning the loyalty of certain law firms, the other is an extremist law professor who wants Social Security, Medicare and national child labor laws to be unconstitutional. As a result, the Post was able to identify exactly three cases which it claims undermines Obama’s statement that invalidating economic regulation is “extraordinary”:

Cully Stimson, a senior legal fellow with the conservative Heritage Foundation, pointed out that the government lost two such cases during the Bill Clinton years. It argued unsuccessfully in U.S. v. Lopez (1995) that possession of a firearm at school constituted economic activity, and in U.S. v. Morrison (2000) that violence against women affected interstate commerce.

Those cases dealt with economic matters, right? Not technically. The Supreme Court determined that the laws didn’t involve commerce at all — that’s why Congress failed in defending them under the Commerce Clause.

The challenge against the Affordable Care Act is different. It relates to how rather than whether a law regulates commerce.

We found another case, Printz v. United States (1997), that determined Congress could not force state officials to conduct background checks for firearm sales. This is clearly an economic issue, but the Obama administration argues that it doesn’t count because it dealt with federalism as well. The health law’s controversial insurance mandate would be enforced at the national level, so it’s not a federalist issue.

As the Post seems to concede, two of these cases did not deal with economic regulation at all. There is no market for simply bringing a firearm near a school; nor, thankfully, do people generally buy and sell domestic violence. So Lopez and Morrison are hardly precedents indicating that the Supreme Court can second guess Congress’ economic policy decisions.

Which leaves Printz, an unusual case where the federal government ordered state government officials to take certain actions in order to promote gun safety. The Supreme Court struck this unusual requirement down because “the Framers explicitly chose a Constitution that confers upon Congress the power to regulate individuals, not States.” Nothing in the Affordable Care Act requires a state to do anything, so Printz simply has nothing to do with whether health reform is constitutional.

So the Post‘s entire argument boils down to a single case that applied an unusual rule that is not even plausibly relevant to the fate of health reform. Beyond that, the case against Obama consists of the statement of “some” right-wing lawyers who oppose the Affordable Care Act. And yet the Post ends its argument with the following conclusion: “the president earns two Pinocchios—which means creating ‘a false, misleading impression by playing with words and using legalistic language that means little to ordinary people’—for his comments about the pending Supreme Court decision.”

Simply put, nothing in the Washington Post‘s “fact check” manages to distinguish the legal case against the Affordable Care Act from birtherism. Just like health reform’s opponents, birthers can produce “some” people who agree with them. Just like birtherism, there are exactly zero Supreme Court cases supporting the case against the Affordable Care Act. And, just like supporters of health reform, opponents of birtherism sometimes resort to “legalistic language” to rebut the birthers’ most arcane claims.