Fox's Losing Battle To Declare Health Care Reform Unconstitutional

The debate about the constitutionality of health care reform went from the fringes of legal and political opinion to the mainstream, culminating in the Supreme Court's decision to uphold the law. During this time, Fox News was at the forefront, challenging the constitutionality of health care reform and the individual mandate. Media Matters takes a look back at Fox's efforts.

16 Fox News Hosts And Analysts Declare Health Care Reform Unconstitutional

Bill O'Reilly (Host): “I'm Going To Go On Record As Saying Now This Is Unconstitutional. The Federal Government Cannot Force You To Do Or Buy Anything.” [Fox News, The O'Reilly Factor, 8/25/09]

Mike Huckabee (Host): Government Is “Forcing People Into An Unconstitutional System ... It's The Equivalent Of A Poll Tax.

HUCKABEE: That's what's going on in the health care world, where we're trying to make sure that we've redistributed health care, taking it from people who have it, taking from them, giving it to people who may not even desire to have it, and forcing people into an unconstitutional system where they're going to have to virtually pay into a private marketplace in order to get full rights of citizenship. It's the equivalent of a poll tax. [Fox News, On The Record with Greta Van Susteren, 11/16/09]

Glenn Beck (Then-Host): “Nowhere In The Constitution Can You Find Any Of This.” [Fox News, Glenn Beck, 11/19/09]

Andrew Napolitano (Fox News Senior Judicial Analyst): “The Government Has No Legitimate Authority Under The Constitution Or Under The Natural Law To Force Us To Purchase Health Insurance Or To Punish Us When We Don't.” [Fox News, Glenn Beck, 12/18/09, via Nexis]

Gregg Jarrett (Anchor): “I Happen To Agree” That Health Care Bill Is Unconstitutional. During a January 2010 broadcast of America's Newsroom -- one of Fox's purported “news” hours -- substitute anchor Gregg Jarrett agreed with former Republican official Ken Blackwell's criticism that the health care bill is unconstitutional. Jarrett began the segment by stating that Blackwell is laying out the case that “Congress doesn't have the constitutional power” to require people to buy health insurance. After questioning Blackwell, Jarrett concluded the segment by telling Blackwell that his arguments are “great arguments, and I happen to agree with them. I just couldn't resist challenging you on them.” [Fox News, America's Newsroom, 1/4/10]

Peter Johnson Jr. (Fox News Legal Analyst): “It Is Unconstitutional.”

JOHNSON JR.: We're talking about redistributed change. We're talking about redistributing wealth. We're talking about higher premiums, based on a Price Waterhouse Coopers study. We're talking about higher taxes: higher excise taxes, higher Medicare taxes, taxes on Medicare and investment, excise taxes, taxes on medical advice -- devices, taxes on people making $200,000 a year. You're fined if you don't buy it. This is the first time we're going to order Americans to buy a product.

HANNITY: That's unconstitutional.

JOHNSON JR.: It is unconstitutional. [Fox News, Hannity, 3/11/10, via Nexis]

Sarah Palin (Fox News Contributor): “This Is Unconstitutional.”

PALIN: Well, everybody who opposes “Obama care,” that takeover of one sixth of our economy, needs to say kudos to these AGs who want to sue and have good standing, too, as they say. No, this is unconstitutional. Not only was a lot of the process crooked to get people to vote for “Obama care” in Congress, but these mandates that I believe are unconstitutional on our state -- forcing constituents in each state to purchase something from the private sector? This is against the commerce clause. It's against so much of what has built this country into the greatness that it is. I'm thankful for these attorney generals, and I would hope that more attorneys general would participate in this. [Fox News, On the Record with Greta Van Susteren, 3/26/10, via Nexis]

Sean Hannity (Host): “States Are Uniting Against The Unconstitutional Overhaul.”

HANNITY: Now from coast-to-coast, states are uniting against the unconstitutional overhaul that was rammed through Congress by the Democrats. And it just so happens that tonight we are in a state where the attorney general is, well, contemplating filing an additional suit over the law. And here to tell us all about it is the man himself, Utah attorney general, Mark Shurtleff. [Fox News, Hannity, 3/31/10, via Nexis]

Angela McGlowan (Fox News Contributor): “Obamacare Is Unconstitutional.” McGlowan stated: “The bottom line is this, even when I was running for Congress Obamacare is unconstitutional. We need to start over again and roll it back because it is costing more money, and we don't have that money to spend.” [Fox Business, America's Nightly Scoreboard, 9/8/10, via Nexis]

Marc Siegel (Fox News Medical Contributor): “It's Unconstitutional.”

SIEGEL: Of course, we should not be forced to buy a product or be penalized. It's unconstitutional. But here is another angle. It is not public health. When did insurance become public health? If the government wants to decide everybody needs to be vaccinated against an emerging disease, you could make an argument for that. [Fox Business, America's Nightly Scoreboard, 11/3/10, via Nexis]

Steve Doocy (Host): “We've Argued On This Program” That The Individual Mandate Is “Against The Law.” [Fox News, Fox & Friends, 2/1/11]

David Asman (Host): “Obamacare Is Unconstitutional.”

ASMAN: All right, well, it is this rejection of unlimited federal powers that is at the core of Judge Vinson's rejection of Obamacare and the tough no-nonsense punch of his decision all, but guarantees that the Supreme Court will decide whether Obamacare is unconstitutional or not.

We believe Obamacare is unconstitutional. We also believe that the early effects of Obamacare show exactly why it is an affront to the founding principles of the constitution. That folks in government would always be tempted to grab more power they already have.

And the more powers the government takes, the less democratic we all become. Already Obamacare is proving this to be so. Just look at the huge number of Obamacare exemptions, over 700 at last count, a bunch of well- connected unions and businesses received special exemptions from Obamacare that the rest of us don't have.

In this kind of arbitrary, unequal application of justice based on favoritism that was reviled by our founders and is now reviled by our electorate. You can't have a government picking winners or losers. This is exactly what repulse all of us about the bailouts where the well- connected are favored over everybody else.

This is what happens when you stray too far from the constitution. The more you try to impose the will of the government over the free will of the individual, the further you stray from freedom and from the tenants of the constitution. [Fox Business, America's Nightly Scoreboard, 2/1/11, via Nexis]

Kimberly Guilfoyle (Fox News Legal Analyst): “This Is Something That Is Unconstitutional.”

LAURA INGRAHAM (GUEST HOST): Kimberly, look, this was a Friday night drop. A couple of big court cases that came out Friday. Late Friday night this thing broke. And this is going to the court. This is going to be considered by the court undoubtedly in the upcoming Supreme Court term. What does this mean? Does this mean election issue? Obama is going to have to get back in the talking about health care? Which I think frankly is not where he wants to be.

GUILFOYLE: No, it's not his strong suit and is he going to be compelled to talk about health care just like he is trying to compel millions of Americans to buy an expensive product from the minute they are born to the day they die.

This is something that is unconstitutional, I believe. It will go to the Supreme Court. It should be expedited. There should be a strong argument to do so. Because how can you have this conflict between the different states? How can companies and businesses prepare their budget if they don't know what their expenses are going to be? [Fox News, The O'Reilly Factor, 8/16/11, via Nexis]

Eric Bolling (Host): “If You Are A Regular Fiver, You Know How I Feel About President Obama's Socialist Agenda. He Shredded The Constitution With Obamacare.” [Fox News, The Five, 2/10/12, via Nexis]

Michelle Malkin (Fox News Contributor): Health Care Reform Is A “Wholly Unconstitutional Mother Of All Unconstitutional Mandates.” [Fox News, Fox & Friends, 3/22/12]

Monica Crowley (Fox News Contributor): “This Was Not About Health Care. This Was About Government Seizing More Liberties From You.”

CROWLEY: Yes, I do -- I do believe that they're going to strike it down. Look, it all gets to the basic essence of what Obama care really is. And this is why they are in this constitutional box right now. Obama care was never about health care. It was always about government power and control and that's why you now have these constitutional issues.

O'REILLY: I don't believe that I don't believe that for a second. I believe that Barack Obama and the liberal left the Democratic Party's liberal left wants the government to basically give people free health care. That is the essence of the nanny state.

CROWLEY: But -- but that gets to the essence of the bigger point that I just made to you, Bill. This was not about health care. This was about government seizing more liberties from you. [Fox News, The O'Reilly Factor, 3/27/12, via Nexis]

Fox Promoted Protests Against “Unconstitutional” Health Care Reform

Bachmann's Protest Of “Unconstitutional” Bill Begins On Hannity. Rep. Michele Bachmann (R-MN) appeared on Hannity in October 2009 and said: “This is unconstitutional, this bill, because you cannot force Americans to purchase a product or service against their will.” Bachmann then promoted her protest, stating: “You can go to for more information and we can walk together through Cannon, Longworth, Rayburn, walk through the capital, sit in the gallery.” Hannity replied: “Maybe I'll have to show up and observe this so our cameras can see democracy in action.” Bachmann later said the protests “began” on “Hannity's show.” [Fox News, Hannity, 10/30/09, via Media Matters and Nexis; Media Matters, 11/5/09]

Hannity Was Later Caught Misleadingly Switching Video Of Rally. As highlighted by Jon Stewart, Hannity misleadingly aired video from the 9-12 March on Washington while discussing Bachmann's much smaller November 5 anti-health care reform rally to claim that “twenty-thousand plus” people showed up to Bachmann's protest. [Media Matters, 11/11/09]

Napolitano: Bachmann Is Fighting “The Constitutionality” Of Health Care Reform And “Wants Your Help.” Guest hosting for Glenn Beck on November 4, 2009, Andrew Napolitano stated that Bachmann is “fighting Democrats on the constitutionality of a national takeover of health care, and she wants your help in the fight.” Napolitano hosted Bachmann to promote the protest and said, “Tell us what's going on outside the Capitol building tomorrow to try and bring some sense to these big government types that want to regulate health care from Washington, DC.” [Fox News, Glenn Beck, 11/4/09]

Beck Endorsed Rep. King's Call To Rally Against Bill. During the March 18, 2010, edition of his Fox News show, Beck hosted Rep. Steve King (R-IA), who said: “We need tens of thousands of Americans to come here to defend our liberty and say to the people that are walking in and out of the Capitol, 'Vote NO on the bill, don't steal my liberty, let me manage my own health care. You have no constitutional right to do this.'” Beck endorsed King's call at the conclusion of the interview: “I have to tell ya, I hope people show up on Saturday at noon there at the Capitol and uh, and plan on just staying there. I mean, ya know, camp out if you have to.” [Fox News, Glenn Beck, 3/18/10]

To see more of Fox's efforts to “kill the bill,” click here.

Fox Featured Imbalanced Coverage Of State Attorneys General Claiming Law Is Unconstitutional

Van Susteren Gave Imbalanced Treatment Of Health Care Reform Constitutionality. Between March 21 and April 6, 2010, Fox News' On the Record with Greta Van Susteren hosted 15 guests who claimed the bill is “unconstitutional,” including many attorneys general who were planning to sue over the bill, compared to only one guest who argued the bill is “constitutional”; Van Susteren also hosted one attorney general who is involved with the legal challenges, but said only that the legislation was “unprecedented” without taking a position on its constitutionality. [Media Matters, 4/7/10]

“Great Debate”? Fox & Friends Hosted Trio Of Republican AGs To Bash Health Care Bill. In August 2010, Fox & Friends hosted three Republican attorneys general who were filing lawsuits challenging the constitutionality of the health care reform law. At the end of the segment, in which all three attorneys general agreed on the constitutionality of health care reform, co-host Steve Doocy ended the segment by calling the discussion a “great debate.” [Media Matters, 8/3/10]

Fox Repeatedly Celebrated Lower Court Rulings Against Reform Law

Judge Hudson Ruling. In December 2010, Virginia federal district court Judge Henry Hudson struck down the individual mandate portion of the Affordable Care Act. [, 12/13/10]

  • O'Reilly: “Judge Hudson Agrees With Me” That The Individual Mandate “Is Unconstitutional.” [Fox News, The O'Reilly Factor, 12/13/10, accessed via Nexis]
  • Hannity: Judge's Findings “Phenomenal,” “An Exciting Victory For All Opponents Of Health Care With Potential Far-Reaching Impact On Its Future Implementation.” [Fox News, Hannity, 12/13/10, accessed via Nexis]
  • Johnson Jr.: “People Have To Read This [Opinion]. It's The Dream Of The Tea Party” And “Americans Who Say 'The Constitution Means Something.'” [Fox News, Fox & Friends, 12/14/10]

Judge Vinson Ruling. In January 2011, Florida federal district court Judge Roger Vinson struck down the individual mandate portion of the Affordable Care Act. [Reuters, 1/31/11]

  • Fox Hosts A Bevy Of Health Care Reform Opponents To Celebrate. 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. [Media Matters, 2/1/11]
  • O'Reilly Agrees With Ruling. From The O'Reilly Factor:
    O'REILLY: If the feds can force you to insure your health, they can also extend that mandate and compel other purchases in pursuit of social justice. That's what this is all about, and the Constitution limits the government from interfering with individual decision-making. It will be fascinating to see how the left, which worships at the altar of government-run health care, reacts to Judge Vinson's ruling. I predict it will not be pretty. [Fox News, The O'Reilly Factor, 1/31/11]
  • Asman Praises Decision. During his Fox Business program, Asman stated: “Judge Vinson's decision got to the heart not only of ObamaCare, but to the reason why so many of us in this nation are worried about the fact we are in danger of being kicked off our foundations.” [Fox Business, America's Nightly Scoreboard, 2/1/11, via Nexis]
  • Napolitano: Vinson “Upheld The Constitution.” From Fox Business' Freedom Watch:
    NAPOLITANO: Two federal judges, one in Virginia and one in Florida, have invalidated the individual mandate aspect of Obamacare. Florida's judge, Roger Vinson, throughout the entire law ruling that since the government acknowledges that the individual mandate, the obligation to buy health insurance or be fined by the feds for not doing so is the backbone of this law.

    Without its backbone, he ruled, the entire statute is invalid. Some have called this judicial activism, but they're wrong. These judges simply have upheld the constitution because it doesn't authorize Congress to force Americans to buy health insurance or any other product, for that matter. [Fox Business, Freedom Watch, 2/4/11, via Nexis]

  • Dr. Manny Alvarez, Senior Managing Editor For Health News, Praises Vinson Ruling. Alvarez wrote on “I hope that Judge Vinson's ruling will awaken the dialogue for better alternatives to ObamaCare, so that we can finally have a health care bill crafted with liberty and justice for all.” [, 2/1/11]

Fox And Other Major News Outlets Overwhelmingly Focused On Rulings Against HCR Constitutionality

Special Report Overwhelmingly Focused On Rulings Against Constitutionality. A majority of federal rulings on the substance of President Obama's health care reform law have found it to be constitutional, including the law's mandate that individuals purchase health insurance. But a Media Matters review of the five largest newspapers and the flagship CNN, Fox News, ABC, CBS, and NBC evening news programs finds that the media overwhelmingly focused on rulings that struck down the law in whole or in part -- 84 percent of segments on the broadcast and cable programs reviewed and 59 percent of newspaper articles that reported on such rulings -- while largely ignoring rulings that found it constitutional or dismissed the case. Fox News' Special Report aired 10 segments about court rulings where the law was ruled unconstitutional; one where it was upheld; and one where it was dismissed. [Media Matters, 6/22/12]

Objections To Individual Mandate Went From The Fringes To Mainstream

Ezra Klein: Legal Argument Against Mandate Went From Fringe To Mainstream. In a New Yorker article, Ezra Klein quoted law professor Orin Kerr -- who clerked for Justice Anthony Kennedy -- and Yale law professor Jack Balkin noting that the conservative media helped Republicans make the case against the mandate:

Orin Kerr says that, in the two years since he gave the individual mandate only a one-per-cent chance of being overturned, three key things have happened. First, congressional Republicans made the argument against the mandate a Republican position. Then it became a standard conservative-media position. “That legitimized the argument in a way we haven't really seen before,” Kerr said. “We haven't seen the media pick up a legal argument and make the argument mainstream by virtue of media coverage.” Finally, he says, “there were two conservative district judges who agreed with the argument, largely echoing the Republican position and the media coverage. And, once you had all that, it really became a ballgame.”

Jack Balkin, a Yale law professor, agrees. “Once Republican politicians say this is unconstitutional, it gets repeated endlessly in the partisan media that's friendly to the Republican Party” -- Fox News, conservative talk radio, and the like -- “and, because this is now the Republican Party's position, the mainstream media needs to repeatedly explain the claims to their readers. That further moves the arguments from off the wall to on the wall, because, if you're reading articles in the Times describing the case against the mandate, you assume this is a live controversy.” Of course, Balkin says, “if the courts didn't buy this, it wouldn't get anywhere.”


What is notable about the conservative response to the individual mandate is not only the speed with which a legal argument that was considered fringe in 2010 had become mainstream by 2012; it's the implication that the Republicans spent two decades pushing legislation that was in clear violation of the nation's founding document. Political parties do go through occasional, painful cleansings, in which they emerge with different leaders who hold different positions. This was true of Democrats in the nineteen-nineties, when Bill Clinton passed free trade, deficit reduction, and welfare reform, despite the furious objections of liberals. But in this case the mandate's supporters simply became its opponents. [New Yorker, 6/25/12]