Fox's "Legal Analysts" Won't Tell You The Truth About Health Care Reform

››› ››› ADAM SHAH

On The O'Reilly Factor, Bill O'Reilly and Fox News legal analysts Lis Wiehl and Kimberly Guilfoyle all agreed that the Supreme Court would strike down the individual mandate provision in the Affordable Care Act. None of these Fox personalities saw fit to mention that the one appellate court to rule on the issue thus far has upheld the constitutionality of the mandate.

O'Reilly And His Legal Analysts "All Agree That Obamacare Will Be Overturned"

O'Reilly, Guilfoyle And Wiehl All Predicted The Supreme Court Will Overturn Part Of The Affordable Care Act. From the August 9 edition of Fox News' The O'Reilly Factor:

O'REILLY: So when do we expect them to take up this case?

WIEHL: I think they'll take it up next winter in the winter term after an appellate court has ruled finally I think that the rule is unconstitutional. The law is unconstitutional.


O'REILLY: Do you agree with me --


O'REILLY: That I think, 5-4 they are going to overturn the mandate to buy insurance?

GUILFOYLE: Yes based on the commerce clause. I do think that. And the vehicle by which they'll do it is by reviewing the Virginia case as soon as the Fourth Circuit Court of Appeals issues that opinion or the Eleventh Circuit with the 12 -- with the 26 states that also have filed against it.

O'REILLY: OK. So, you're telling me that if I was a Supreme Court justice, I would have to do all that?

GUILFOYLE: Yes. You would have to do all of that.

O'REILLY: OK. I don't want the job.

WIEHL: You'd have to work.

O'REILLY: Do you agree with Guilfoyle that --

WIEHL: I agree. I'm not sure it's going to be 5-4 because I think Kagan may have to recuse herself.

O'REILLY: I don't care. Let's not dwell on minutia.


O'REILLY: Do you agree with Guilfoyle?


O'REILLY: You do?

WIEHL: I do think that part of the law will be overruled.

O'REILLY: So all three of us agree for the first time in history.

WIEHL: Oh my goodness. I think the table just started rocking.

O'REILLY: We all agree that Obamacare is going to be overturned. [Fox News, The O'Reilly Factor, 8/9/11]

The Only Appellate Court To Decide The Issue Has Upheld The Constitutionality Of The Individual Mandate

By A 2-1 Vote, The Sixth Circuit Upholds The Constitutionality Of The Individual Mandate. In Thomas More Law Center v. Obama, the U.S. Court of Appeal for the Sixth Circuit held, by a 2-to-1 vote, that the provision of the Affordable Care Act mandating that individuals purchase health insurance does not violate the Constitution. [Thomas More Law Center v. Obama, 6/29/11]

Wiehl And Guilfoyle Both Mentioned Other Pending Cases But Avoided Mentioning Sixth Circuit Case. During the O'Reilly Factor segment, Wiehl predicted: "I think [the Supreme Court will] take it up next winter in the winter term after an appellate court has ruled finally I think that the rule is unconstitutional." Guilfoyle predicted that the Supreme Court would take the case by reviewing "the Virginia case as soon as the Fourth Circuit Court of Appeals issues that opinion or the Eleventh Circuit with the 12 -- with the 26 states that also have filed against it." Neither mentioned that the Sixth Circuit had already decided that the individual mandate contained in the Affordable Care Act was constitutional. [Fox News, The O'Reilly Factor, 8/9/11]

  • Sixth Circuit Case That Fox Ignored Is Currently Pending Before The Supreme Court. The plaintiff in the Sixth Circuit case, the Thomas More Law Center announced on July 27 that it had "filed a petition in the U. S. Supreme Court, asking the highest court in the land to review its constitutional challenge to Obamacare (the Patient Protection and Affordable Care Act)." The Supreme Court -- which is in its summer recess -- has not taken any action on Thomas More Law Center's appeal. [Thomas More Law Center, 7/27/11]

Staunch States' Rights Supporter Jeffrey Sutton Joined The Appellate Court Opinion Upholding The Individual Mandate

States' Rights Supporter Jeffrey Sutton Joined The Sixth Circuit's Majority Opinion. The majority in Thomas More Law Center v. Obama consisted of Sixth Circuit Judges Boyce Martin and Jeffrey Sutton. District Judge James Graham, acting as a Sixth Circuit judge in this case, dissented. [Thomas More Law Center v. Obama, 6/29/11]

Sutton Was Appointed To The Bench By Bush Over The Opposition Of 41 Of 48 Senate Democrats. Sutton was appointed by Bush in 2003 after a Senate vote in which 41 of the 48 Democrats in the Senate at the time opposed his nomination. [Senate vote on the nomination of Jeffrey Sutton, Vote #135, 4/29/03]

As A Lawyer, Sutton Successfully Argued That Portions Of The Violence Against Women Act, Age Discrimination In Employment Act, Americans With Disabilities Act, And Other Laws Unconstitutionally Violated States' Rights. Alliance for Justice reports that as Ohio State Solicitor, and later in private practice, Sutton filed Supreme Court briefs and participated in oral arguments in cases in which the Court struck down portions of the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Religious Freedom Restoration Act, and the Violence Against Women Act on states' rights (or federalism) grounds. He also successfully argued that Clean Water Act regulations were unconstitutional on states' rights grounds. [Alliance for Justice report opposing the nomination of Jeffrey Sutton, January 2003]

Sutton Said He Took Such Cases Because He "Really Believe[s] In This Federalism Stuff." As reported by Alliance for Justice, Sutton told the Legal Times that he became involved in these states' rights cases because, "I love these issues. I really believe in this federalism stuff." [Alliance for Justice report opposing the nomination of Jeffrey Sutton, January 2003]

Sutton Told The Federalist Society "We Ought To Find A Way To Continue To Push [Federalism] In The Direction It Is Going." As an attorney, Sutton was an officer of the conservative Federalist Society's Federalism and Separation of Powers Practice Group. While moderating a panel on Supreme Court decisions that had resurrected states' rights doctrines, Sutton said:

Since Rodriguez, all of that litigation has shifted to the state level. And in Ohio, I litigated and just lost a case on this very score. While I am not happy about it, what is good about decisions like this is that even when you lose, the problem is still resolved at the local level. The Ohio Supreme Court is going to have to come back and revisit this issue. It is going to have to tinker with it in the context of what Ohio legislators can do, and that is something the people of Ohio have a little more control over than they would if these decisions were made in Washington, D.C. That strikes me as the real value of federalism and why we ought to find a way to continue to push it in the direction it is going. [The Federalist Society, 5/1/98, emphasis added]

Legal Experts From Across The Spectrum Have Predicted The Supreme Court Will Uphold The Law

Reagan Solicitor General: While A Political Attack On The Individual Mandate Is "Quite Justified," The Legal Arguments Against The Provision "Are Utterly Without Merit." From a post on SCOTUSblog by Charles Fried, a Harvard law professor who served as solicitor general under President Ronald Reagan:

The attack on the health care mandate in the Affordable Care Act (ACA) is pure politics. In large part I think the political attack is quite justified. But the situation created by the decisions of two district courts and the drumbeat of arguments about the activity/inactivity distinction, capped by the hyperbolic claim that if the government can make us buy health insurance then "we are no longer citizens; we are subjects," frightens me. The constitutional arguments against the mandate are utterly without merit. If they succeed - indeed, if they succeed in gaining more than one vote in the Supreme Court (Justice Thomas's vote against the Act would accord quite well with his long held and often stated views on the reach of the Commerce Clause) - it would be a depressing triumph of naked partisan politics over established legal principles.

The energy behind the attack - to the extent that it is not simply the chosen symbol of an attack on President Obama's supposed push to turn the United States into a Western European style social democratic state - lies in a supposed insult to our liberties. But that is pure hysteria. The mandate is no more that than is the much more thoroughgoing governmentalization of medicine by Medicare. Indeed, if accomplished as a tax the arguments would have no traction at all. If enacted at the state level the impingement on liberty would be the same, but the attack would again fail. And then there is the irony that a single-payer or government option, which also would be beyond constitutional attack, was rejected in favor of the mandate as a way to keep the whole scheme so far as possible within the private insurance market - a choice not made either in respect to Medicare or Social Security. [SCOTUSblog, 8/1/11]

Law Professor Kerr: Sutton's Opinion Upholding Individual Mandate "Closely Match[es] What I've Been Saying." From a blog post on the libertarian Volokh Conspiracy blog by George Washington University law professor Orin Kerr:

Of all the judges tasked with assessing the constitutionality of the individual mandate, the one to watch so far has been Judge Jeffrey Sutton of the Sixth Circuit. As some readers know, Judge Sutton is a Federalist Society favorite, one of Justice Scalia's favorite former clerks, and a regular "feeder" judge to the Supreme Court. As a result, what Judge Sutton thinks about the constitutionality of the mandate actually matters a lot to the future debate over the mandate. In light of that, I think the important aspect of today's opinion from the Sixth Circuit is that Judge Sutton concluded that the mandate is constitutional.

I think Judge Sutton's separate opinion is excellent, but then it's easy for me to say: Judge Sutton's views closely match what I've been saying here and elsewhere for a long time, so maybe this just proves once again that brilliant people agree with me. [Volokh Conspiracy, 6/29/11]

  • Kerr Served As Special Counsel To Sen. John Cornyn (R-TX) During The Sonia Sotomayor Confirmation Proceedings. [George Washington University, accessed 8/9/11]

Laurence Tribe: Argument Against Health Care Law "Is A Policy Emperor Who Wears No Constitutional Clothes." From a post by Harvard law professor Laurence Tribe on SCOTUSblog:

Constitutional challenges to the individual mandate of the Affordable Care Act ("ACA") often proceed from an intuition that this law is somehow unique, that it represents a dangerous departure from constitutionally specified limits on federal power forged in the crucible of the Philadelphia Convention, and that even in an age of big government its intervention into our lives and liberty is qualitatively different from anything else witnessed in our national history. But as Judge Jeffrey Sutton concisely put the point in his careful and exhaustive concurring opinion upholding the Act in Thomas More Law Center v. Obama, "[s]ometimes an intuition is just an intuition."

Even when displayed in their best light, none of the constitutional arguments against the individual mandate - including objections rooted in the mandate's alleged failure to respect the vaunted activity/inactivity distinction - can survive rigorous analysis. What those arguments leave in their wake is a deeply felt but constitutionally ungrounded view that the mandate, and the law of which it is a part, are misguided as a matter of national policy. Even if that view were correct, the attempt to couch objections to this law in constitutional garb would remain unsustainable. This is a policy emperor who wears no constitutional clothes. [SCOTUSBlog, 8/4/11]

Law School Dean Chemerinsky: "Under Current Constitutional Law, The Federal Health Care Law Is Clearly Constitutional." From a SCOTUSBlog post by University of California, Irvine School of Law dean Erwin Chermerinsky:

Under current constitutional law, the federal health care law is clearly constitutional. It is not even a close question. The key issue is whether Congress has the authority to require that all individuals either purchase health insurance by 2014 or pay a penalty to be collected by the Internal Revenue Service. Opponents contend that the minimum coverage provision is unconstitutional as exceeding the scope of Congress's powers. But this is constitutional both under Congress's authority to regulate commerce among the states and as an exercise of congressional power to tax and spend for the general welfare. [SCOTUSBlog, 8/5/11]

Fox Promoted The Baseless Argument That Kagan May Have To Recuse Herself From The Case

Wiehl: "I Think Kagan May Have To Recuse Herself." During the O'Reilly Factor segment, after O'Reilly and Guilfoyle predicted the Supreme Court would find the individual mandate unconstitutional by a 5-4 vote, Wiehl said: "I agree. I'm not sure it's going to be 5-4 because I think Kagan may have to recuse herself." [Fox News, The O'Reilly Factor, 8/9/11]

Conservatives Have Long Claimed That Kagan Might Have To Recuse Herself From The Health Care Litigation Because She Supposedly Participated In Health Care Litigation While She Was An Obama Administration Official. For more than a year, conservatives have claimed that in her prior position as Obama administration solicitor general, Kagan was likely involved in litigation over the constitutionality of the Affordable Choices Act and therefore must recuse herself from hearing such cases. [Media Matters, 7/12/11]

But Kagan Testified That She Did Not Express An Opinion On The Legal Issues Surrounding Health Care Reform And Was Not Involved In The Litigation Over The Law. In July 2010, while her Supreme Court nomination was pending in the Senate, Republican senators sent Kagan written questions asking whether she was involved in any of the lawsuits over the health care litigation that had recently been filed. They also asked whether Kagan had given her opinion on legal issues surrounding the health care law. Kagan said she had not been asked to give her opinion on the legal issues and that she had attended no meetings "where substantive discussion of the litigation occurred." [Kagan's responses to Senators' written questions, 7/13/10]

Conservative CNS News Acknowledged That No Documents Show That Kagan Is Required To Recuse Herself. Terry Jeffrey of the conservative outlet CNS News wrote on March 29:

Did Kagan at any time as solicitor general express an "opinion concerning the merits" of the lawsuits filed against the health care law -- an act that would trigger one of the recusal standards in 28 U.S.C. 455? In the text of the emails the Justice Department provided to, Kagan does not do so. [CNS News, 3/29/11]

NRO's Severino: "I Don't See Enough Evidence To Know Whether Justice Kagan Must Recuse Herself" From Health Care Cases. National Review Online blogger Carrie Severino wrote on April 11: "From what we know so far, I don't see enough evidence to know whether Justice Kagan must recuse herself from considering the upcoming Obamacare challenges." [National Review Online, 4/11/11]

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