Following federal Judge Roger Vinson's ruling that the individual mandate makes health care reform unconstitutional, Fox & Friends hosted an unbroken string of health care opponents to cheer the ruling and attack the overall health care reform bill. However, many legal experts found Judge Vinson's ruling to be flawed.
In Wake Of Florida Ruling, Fox Hosts A Bevy Of Health Care Reform Opponents To Celebrate
Former Florida Attorney General Bill McCollum: “I'm Very Pleased” By The Outcome. During the February 1 broadcast of Fox News' Fox & Friends, former Florida Attorney General Bill McCollum reacted to Vinson's ruling by saying, “I'm not surprised [by the outcome]. I'm very pleased.” Co-host Brian Kilmeade introduced McCollum as the man who “filed the original law suit on behalf of 13 states, and that number grew.” [Fox News, Fox & Friends, 2/1/2011]
Gov. Scott: “It's Great That The Judge Made That Decision.” Later, the co-hosts invited Republican Florida Governor Rick Scott on the show to discuss the ruling. Scott praised the judge's decision, saying:
It's great that the judge made that decision. More importantly than holding the mandate unconstitutional, he says if the mandate is unconstitutional, the whole bill is unconstitutional. So, you know, we need to go back to give us our own rights. Let us as citizens decide what we want, and in particular, Florida, we want to decide what we want to do about health care. We don't need the federal government telling us. [Fox News, Fox & Friends, 2/1/2011]
Ingraham: “It Was A Pretty Devastating Opinion” For The Health Care Bill. Fox & Friends also hosted Fox News contributor Laura Ingraham, who claimed the ruling “was a pretty devastating opinion.” Ingraham agreed with Doocy's assertion that it is “against the law” for the “federal government...to tell somebody to go buy something,” adding that Vinson took a “fascinating walk down history lane” in his decision by comparing the individual mandate to the original Boston tea party. Ingraham said, “Those are our roots, to throw off the shackles of repression from Britain, that were compelling us, you know, to engage in this commerce. How could we now go back to that?” [Fox News, Fox & Friends, 2/1/2011]
Fox & Friends Hosts Governor Nikki Haley To Praise Vinson's “Great Ruling.” Later on Fox & Friends, Kilmeade interviewed Gov. Nikki Haley (R-SC) about her thoughts on the health care ruling in Florida. Haley stated, “I think people need to understand that constitutionally, the federal government can't dictate to the states what to do any more than the states can dictate to individuals what they can do. That's what makes this country great. What we're going to do is we're going to acknowledge the fact that they did make a great ruling yesterday and say that it was unconstitutional.” Haley further claimed “the reason” the health care reform bill “doesn't work is that ... it addresses health care services, it doesn't address health.” She later added, “It's just not a win in any way for any of the people in this state or for anybody across this country.” [Fox News, Fox & Friends, 2/1/2011]
Johnson Ignores Dissenting Federal Cases To Accuse Dem Senators Of “Intimidat[ing]” “Marginaliz[ing]” And “Undermin[ing]” The Federal Judiciary. Later on Fox & Friends, Fox News legal analyst Peter Johnson, Jr. claimed that an effort by Sens. Dick Durbin (D-IL) and Patrick Leahy (D-VT) to hold a hearing on the constitutionality of health care reform is an effort to “A, intimidate, B, marginalize, and C, undermine the federal judiciary.” Johnson failed to note that in two cases, federal judges have upheld the constitutionality of the health care bill. He concluded by asking, “Does the federal government go ahead with what Judge Vinson has said, in an 80 page or so opinion, [is] an unconstitutional law?” [Fox News, Fox & Friends, 02/01/11]
Yet Numerous Legal Experts Point Out Flaws In Vinson's Ruling
Kerr: “Judge Vinson's Argument On The Necessary And Proper Clause Is Not Persuasive.” Former advisor to Sen. John Cornyn (R-TX) and George Washington University Law Professor Orin Kerr reacted to Vinson's ruling by noting that “Judge Vinson's argument on the Necessary and Proper Clause is not persuasive.” Kerr explained:
The words of the relevant Supreme Court cases point to an extremely broad power, and Judge Vinson is supposed to be bound by those words. But Judge Vinson concludes that these words can't be taken at face value because “to uphold [the mandate] via application of the Necessary and Proper Clause would [be to] . . . effectively remove all limits on federal power.”
This might work as a Supreme Court opinion that can disagree with precedent. But Judge Vinson is just a District Court judge. And if you pair Justice Thomas's dissent in Raich with Judge Vinson's opinion today, you realize the problem: Judge Vinson is reasoning that existing law must be a particular way because he thinks it should be that way as a matter of first principles, not because the relevant Supreme Court doctrine actually points that way. [The Volokh Conspiracy, 01/31/11]
Balkin: “It Is Hard To See Judge Vinson's Opinion...As Entirely Unaffected By Partisan Considerations.” On his blog, Yale Law Professor Jack Balkin compared Vinson's ruling on the health care reform bill to his Per Curiam opinion in Bush v. Gore, and pointed out:
It is hard to see Judge Vinson's opinion on the question of severability as entirely unaffected by partisan considerations, just as it is hard to reach the same conclusion about the 5-4 decision on the remedy in Bush v. Gore. When a judge informs you that a particular decision is unique, and unlikely ever to be repeated again--a ticket good for this day only--one begins to suspect that something other than the dispassionate application of the rule of law is going on.
I never thought I'd say this, but compared to Judge Vinson, Judge Hudson is starting to look like an apostle of judicial restraint. [Balkinization, 01/31/11]
Metzger: Vinson's Ruling Is “A Remarkable Assertion Of Judicial Power Fundamentally At Odds With Supreme Court Precedent.” Columbia Law School professor Gillian Metzger noted:
Judge Vinson's decision declaring the entire Affordable Care Act unconstitutional represents a remarkable assertion of judicial power fundamentally at odds with Supreme Court precedent. The Court has made clear that Congress has broad power to regulate economic activity comprehensively under the Commerce and Necessary and Proper Clauses. That is what Congress did here: it comprehensively regulated the activity of accessing healthcare, in the process imposing on the insured the obligation to purchase health insurance to pay for the estimated $43 billion in uncompensated health care services they use annually. [Wall Street Journal, 01/31/11]
Hall: “We Still Await A Convincing Explanation Of Why Rejecting The 'Necessary And Proper' Defense Is Consistent With Recent Supreme Court Opinions.” Wake Forest law professor Mark Hall noted:
[I]t's fair enough to conclude, absent controlling precedent, that being uninsured might not constitute interstate commerce. What's harder to swallow is the judge's rejection of the Necessary and Proper Clause. In refusing to sever the individual mandate, he not only concedes the mandate “is indisputably necessary to the Act's insurance market reforms, which are, in turn, indisputably necessary to . . . what Congress was ultimately seeking to accomplish,” he astonishingly devotes about ten pages (63-74) to hammering home the mandate's necessity...
My full rebuttal is here, but in brief: none of this is consistent with Comstock, which allows the federal government to commit mentally ill former prisoners to civil treatment, despite the clear absence of any general federal civil commitment power. And this is inconsistent with Lopez and with Justice Scalia's concurrence in Raich, which note that regulation, otherwise forbidden, of local noneconomic activities, can be justified when this is “an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.” Thus, we still await a convincing explanation of why rejecting the “necessary and proper” defense is consistent with recent Supreme Court opinions, authored or joined by most of the conservative justices. [Concurring Opinions, 01/31/11]
Lazarus Argues That Vinson's Ruling Violates Previous Opinions By Conservative Justices. Simon Lazarus, Public Policy Counsel for the National Senior Citizens Law Center, pointed out:
Today's decision in Florida federal district court striking down the Affordable Care Act in its entirety would effectively shred the Constitution as it has been interpreted, applied, and endorsed across a broad ideological spectrum for the last three-quarters of a century - since the New Deal - and, actually, dating back to Chief Justice John Marshall's expansive interpretations of the constitutional provisions directly at issue here.
Among those who have joined in rejecting the century-old, long-defunct decisions on which Judge Roger Vinson's decision rests, are Justices Scalia, Kennedy, and Chief Justice Roberts. They will have to twist their prior decisions and statements into pretzels in order to rule the individual mandate or other ACA provisions unconstitutional. [American Constitution Society, 01/31/11]
Fox Has A Long History Of Unbalanced Health Care Reform Reporting
Fox Previously Hosted 63 Opponents To Only 10 Supporters Over The Course Of Two Days. As Media Matters previously reported, during the two-day period between August 10 and 11, 2009, Fox hosted 63 guests who voiced opposition to health care reform, while only hosting 10 who supported it. [Media Matters, 08/12/09]
Fox's Coverage Of Health Care Tea Parties Amplified Opponents Of Reform. During the week of August 24, 2009, Fox News aired 22 clips of town hall meeting attendees expressing an opinion or asking a question that opposed health care reform efforts, but aired no clips of town hall attendees who supported reform. [Media Matters, 09/08/09]
Fox Hosts Republican Attorneys General To Argue Against HCR. Fox News and Fox Business Network have hosted at least nine interviews with Republican state attorneys general, giving them a platform to promote their efforts to overturn that legislation through the courts. [Media Matters, 3/24/10]
Fox & Friends Holds “Great Debate” Over Health Care Between Three Republican Attorneys General. On the August 3, 2010 edition of Fox & Friends, co-host Steve Doocy hosted three Republican attorneys general who were filing lawsuits challenging the constitutionality of the health care reform bill. After hosting the three opponents to the bill, Doocy described the segment as a “great debate.” [Fox News, Fox & Friends, 08/03/10]
Fox Kicks Off GOP GOTV Efforts By Almost Exclusively Hosting Republicans. Fox kicked off the final week before the midterm elections by almost exclusively hosting Republican candidates. Fox hosted seven* Republican candidates in the course of 24 hours, and RNC chairman Michael Steele twice, while hosting just one Democratic official, DNC chair Tim Kaine. [Media Matters, 10/27/2010]
Fox News Figures Openly Opposed Reform. As Media Matters has noted, Fox News openly advocated against the Democrats' efforts to reform the health care system. Numerous Fox employees from both the “news” and “opinion” sides expressed opposition to the health care reform bill. [Media Matters, 03/22/10]