A “great debate”? Fox & Friends hosts trio of Republican AGs to bash health care bill

On Fox & Friends, Steve Doocy continued the Fox tradition of giving Republican guests softball interviews by hosting three Republican attorneys general who are filing lawsuits challenging the constitutionality of the health care reform law. Doocy failed to note that legal experts have said that the health care reform bill is constitutional.

Doocy conducts another softball interview, this time with three anti-health care attorneys general

Doocy congratulates VA attorney general for winning “round one against the administration.” On the August 3 edition of Fox News' Fox & Friends, Doocy hosted a panel of three attorneys general who are suing the federal government over the Patient Protection and Affordable Care Act (PPACA). Doocy introduced Virginia Attorney General Ken Cuccinelli by saying, “Congratulations, you won round one against the administration.” Doocy was referring to a recent decision by a federal judge in Virginia not to dismiss Cuccinelli's lawsuit challenging the health care reform law.

Doocy sets up Michigan AG Cox's criticism of health care bill. Introducing Michigan Attorney General Mike Cox, Doocy stated: “Tell me a little bit about your action and how you feel about the federal government telling people, individuals, look, you got to go out and you got to buy insurance. We know it's never been done before, but it's in the greater good.” Cox recently joined a lawsuit filed in Florida challenging the health care reform bill.

Doocy to Cox: “I know you feel that” legal challenge to AZ immigration bill is “a slap in the face” to Arizona. Later, discussing the federal government's legal challenge to Arizona's immigration bill, Doocy said to Cox: “Mike, I know you feel that what the -- what Judge Bolton did down in Arizona last week were -- put the injunction on portions of 1070 -- Senate bill 1070. That's a slap in the face of the sovereignty of the people of Arizona.”

After hosting three attorneys general who all agreed with each other, Doocy called the panel a “great debate.” At the end of the segment, in which all three attorneys general agreed on the constitutionality of health care reform and Arizona's immigration bill, Doocy ended the segment by calling the discussion a “great debate.”

In unchallenging panel, Doocy ignores legal experts' views that health care reform is constitutional

Law professor Kerr, who advised Cornyn, declares commerce clause argument against reform “weak” and “filled with so many errors.” In an October 2009 blog post, George Washington University law professor Orin Kerr, who served as Sen. John Cornyn's (R-TX) special counsel for the Sonia Sotomayor confirmation proceedings, wrote:

Once in a while I come across an op-ed filled with so many errors, misstatements, and plainly weak claims that the mere number of those becomes far more interesting than the argument of the op-ed itself. A case in point is today's Wall Street Journal op-ed by Fox News Channel senior judicial analyst Andrew P. Napolitano, which argues that President Obama's health care proposals are unconstitutional because they exceed the commerce clause power. Here's an excerpt; how many errors, misstatements, and plainly weak claims can you count?

After quoting two paragraphs from Napolitano's piece, Kerr stated: “There are also errors by omission, like the curious decision to ignore Gonzales v. Raich, but I think it's only sporting to stick to claims actually made."

Constitutional expert Chemerinsky: Constitutionality of reform proposals supported by “unbroken line of precedents stretching back 70 years.” In an October 23, 2009, Politico article responding to Townhall columnist Ken Klukowski, University of California, Irvine law professor and constitutional law expert Erwin Chemerinsky stated, “Under an unbroken line of precedents stretching back 70 years, Congress has the power to regulate activities that, taken cumulatively, have a substantial effect on interstate commerce.” Chemerinsky further stated:

Those opposing health care reform are increasingly relying on an argument that has no legal merit: that the health care reform legislation would be unconstitutional. There is, of course, much to debate about how to best reform America's health care system. But there is no doubt that bills passed by House and Senate committees are constitutional.

Some who object to the health care proposals claim that they are beyond the scope of congressional powers. Specifically, they argue that Congress lacks the authority to compel people to purchase health insurance or pay a tax or a fine.

Congress clearly could do this under its power pursuant to Article I, Section 8 of the Constitution to regulate commerce among the states. The Supreme Court has held that this includes authority to regulate activities that have a substantial effect on interstate commerce. In the area of economic activities, “substantial effect” can be found based on the cumulative impact of the activity across the country. For example, a few years ago, the Supreme Court held that Congress could use its commerce clause authority to prohibit individuals from cultivating and possessing small amounts of marijuana for personal medicinal use because marijuana is bought and sold in interstate commerce.

Yale Law professor Amar debunks arguments that reform is a “taking.” According to Slate.com's Timothy Noah, Yale Law professor Akhil Reed Amar and Fordham Law School dean William Treanor debunked conservatives' argument that the individual mandate could be considered a “taking” in violation of the Fifth Amendment:

[A]ccording to Akhil Reed Amar, who teaches constitutional law at Yale, the case law does not support [Peter] Urbanowicz and [Dennis] Smith [both formerly of the Department of Health and Human Services]. “A taking is paradigmatically singling out an individual,” Amar explains. The individual mandate (despite its name) applies to everybody. Also, “takings are paradigmatically about real property. They're about things.” The individual mandate requires citizens to fork over not their houses or their automobiles but their money. Finally, Amar points out, the individual mandate does not result in the state taking something without providing compensation. The health insurance that citizens must purchase is compensation. In exchange for paying a premium, the insurer pledges (at least in theory) to pay some or all doctor and hospital bills should the need arise for medical treatment. The individual mandate isn't a taking, Amar argues. It's a tax.

But how can it be a tax if the money is turned over not to the government but to a private insurance company? William Treanor, dean of Fordham Law School and an expert on takings, repeated much of Amar's analysis to me (like Amar, he thinks a takings-based argument would never get anywhere), but instead of a tax he compared the individual mandate to the federal law mandating a minimum wage. Congress passes a law that says employers need to pay a certain minimum amount not to the government but to any person they hire. “The beneficiaries of that are private actors,” Treanor explained. But it's allowed under the commerce clause. “Minimum wage law is constitutional.” So, too, then, is the individual mandate.

Yale Law professor Balkin debunks claim that reform violates state sovereignty. Responding to the arguments that health care reform violates the 10th Amendment -- which reserves all power not delegated to the federal government to the states or the people -- Yale law professor Jack Balkin has noted that “the safeguards of federalism are political,” not judicial, and that state governors do not have the power to nullify federal laws or “violate federal laws or interfere with federal employees.”

Doocy uncritically allows McCollum to mislead on DHS memo

Doocy allows McCollum to claim the administration is “trying to do immigration by the back door.” At the end of the segment, McCollum claimed a recent Department of Homeland Security memo on “deferred action” in dealing with immigration reform is “scary for homeland security about immigration laws where they're trying to do immigration by the back door without going through Congress.”

In fact, the memo McCollum is referring to recommends against deferred action. As Media Matters has noted, the Department of Homeland Security memo that McCollum is referencing, deferred action, defined as “an exercise of prosecutorial discretion not to pursue removal from the U.S. of a particular individual for a specific period of time,” is recommended against. The memo states:

While it is theoretically possible to grant deferred action to an unrestricted number of unlawfully present individuals, doing so would likely be controversial, not to mention expensive.


Rather than making deferred action widely available to hundreds of thousands and as a non-legislative version of “amnesty”, [U.S. Citizenship and Immigration Services] could tailor the use of this discretionary option for particular groups such as individuals who would be eligible for relief under the DREAM Act.

Gibbs: “This administration believes that the only way to deal with immigration is to do it comprehensively,” not by using “discretionary authority.” On the July 30 edition of Fox News' Fox & Friends, White House Press Secretary Robert Gibbs responded to allegations that the administration is planning on using “discretionary authority” to bypass congress and advance amnesty by saying the “administration believes that the only way to deal with immigration is to do it comprehensively,” and “with Democrats and Republicans working together.” From Fox & Friends:

GIBBS: This administration believes that the only way to deal with immigration is to do it comprehensively. To do it through congress with Democrats and Republicans working together. We've done it before with members like John McCain. Members like Lindsey Graham, working with Democrats like Barack Obama when he was in the U.S. Senate. We can do that again. We can solve this problem once and for all. We can deal with securing our borders as the president has talked about moving 1,200 national guardsmen to secure the borders and I think we can deal with this comprehensively if we'll all just take a step back to deal with the problem.

Doocy's panel is the latest in Fox & Friends' history of treating Republicans to softball interviews

Doocy tells Brown that Democrats “are really trying to gang up on you,” while Brown fundraises. Then-Republican Senate candidate Scott Brown (MA) appeared on the program January 14. During the interview, Doocy told Brown he had “Democrats panicked up there,” and asked him what he planned to do in the Senate, allowing Brown a lengthy and uninterrupted response. Doocy also asked him, “It really bugs you when people refer to that particular Senate seat as 'Ted Kennedy's Senate seat.' It's not Ted Kennedy's seat, is it?” Then, after noting several groups campaigning against Brown, Doocy said, “You can see, Scott, that the forces on the other side are really trying to gang up on you.” In response, Brown plugged his campaign website for donations.

Doocy, Perino open Fiorina interview by asking, “How did you do it?” and, “How much are you looking forward to taking on Barbara Boxer?” Republican Senate candidate Carly Fiorina (CA) appeared on the program on June 9. Doocy and guest co-host Dana Perino began the interview by asking her “how did you do it [win the GOP nomination],” and “how much are you looking forward to taking on Barbara Boxer come this November?” They also asked her whether she was going to “pool her resources” with gubernatorial candidate Meg Whitman (CA) because Democrats are “going to come at you with all the firepower that they've got,” and whether she's “willing to spend a bunch more” on the campaign. At one point, co-host Brian Kilmeade asked her how she would “answer” accusations from Boxer about her time at Hewlett Packard.

Doocy asks Haley about the “crazy allegations” made during the campaign and tells her she is “lucky” to have a Palin endorsement. Republican gubernatorial candidate Nikki Haley (SC) also appeared on the program June 9. During the interview, Doocy noted “these crazy allegations out there that you have denied,” and asked her why her opponents would “make that stuff up?” Perino stated that “the guys were quite desperate because they couldn't win on the merits,” and asked Haley what her “biggest challenges going into” the election will be. Later, Doocy stated that Haley is “lucky because Governor Sarah Palin, she selected just a handful of candidates to endorse ... you were one of them.” He asked her: “Have you spoken to her since your win? If you did, what was the conversation like?”

Kilmeade introduces Rubio as “soon to be senator, according to some.” Republican Senate candidate Marco Rubio (FL) appeared on the program February 5. During the interview, Kilmeade introduced Rubio as “one of the great upstart political stories right now in America” and “soon to be senator, according to some.”

Camerota asks DioGuardi “what's your platform,” and asks him about his American Idol daughter. Republican Senate candidate Joe DioGuardi (NY) appeared on the program March 16. Guest-host Alisyn Camerota asked him, “What's your platform? Why are you getting back into this racket?” After DioGuardi spoke at length, Kilmeade said, “You know how much work this is ... it's going to be hard, especially in New York, to be a Republican,” and asked DioGuardi what his daughter, American Idol's Kara DioGuardi, thought about his campaign. They also asked him about his daughter's appearance on American Idol, in which she made a “memorable” “mark” by wearing a bikini.

Kilmeade asks Johnson, “What role do you think the tea party has had in inspiring you?” Republican congressional candidate Ron Johnson (WI) appeared on the program June 1. Kilmeade asked him during interview, “Does this seem real to you?” and, “What role do you think the tea party has had in inspiring you and supporting you?” After Johnson replied that he was concerned with the “loss of freedom” and that “Obamacare” was a “huge assault on our freedom,” Kilmeade asked, “When that happened, instead of just complaining about it or holding court with your friends in your neighborhood, you took action?” Kilmeade also asked him “what do you plan on doing if you get in?” and what his “plan” is for winning over the tea party.

Fox & Friends hosts Vets for Freedom exec to plug 10 GOP candidates. Vets for Freedom executive director Pete Hegseth appeared on the program May 31 to promote 10 GOP congressional candidates his organization is endorsing. Guest-host Dave Briggs asked him, “Why is it of particular importance to get these vets ... elected to Congress?” and read through biographies of some of the veterans that Hegseth was “hoping win their congressional battles in 2010.”

Kilmeade ignores key question about detainee assault in promoting West candidacy, military expertise. Republican congressional candidate Lt. Col. Allen West appeared on the program February 8. During the interview, Kilmeade said West's “personal interrogation tactic ... saved a lot of lives in Iraq” and then repeatedly allowed West to criticize the Obama administration for its handling of the Northwest Airlines bombing suspect while stating that West had “dealt with Al Qaeda directly.” Kilmeade did not ask West about his reported resignation from the military after he assaulted a detainee.

Kilmeade hosts candidates from Conservative Freshman Coalition to “share” their “mission.” On April 29, Kilmeade hosted two Republican congressional candidates from the Conservative Freshman Coalition, a group that “promotes conservative values.” He asked them why it's “necessary” to run, why they were a part of the coalition, what their “take” is on Charlie Crist's run as an independent, and where they stand on illegal immigration. At the end, he thanked them for coming on to “share your mission.”

Fox & Friends plugged campaign for 90-year-old Republican candidate, who admitted Fox News' Ailes was once his manager. Republican congressional candidate John Snyder (IN) appeared on the program March 15. Kilmeade noted that Snyder had “never really felt compelled to run for Washington -- an office in Washington,” and asked him whether he really felt “things are that bad at this point, throughout your entire life, they've never been worse than now?” After Snyder noted Ailes was once his campaign manager, Doocy stated that Snyder wasn't taking donations and asked him, “You're going to just come up with all the cash yourself?” After Kilmeade said, “The top of your agenda is about spending, correct?” Doocy stated: “There are certainly a lot of people across the country who feel the same way -- they're fed up. Few have taken such drastic measures and put off retirement to run for Congress.”