Taking the Constitution's limits on federal power seriously is just, well, backwards to liberal journalists. Take Ari Melber of The Nation. Sitting on the panel on the March 26 edition of Now with Alex Wagner, the MSNBC contributor dismissed as "retrograde" the notion that the ObamaCare individual mandate -- the provision forcing Americans to buy private health insurance or else pay a fine to the federal government -- violates the letter and spirit of the Constitution.
Melber, a former John Kerry presidential campaign staffer, made the remark in the midst of comments wherein he suggested the Obama administration could see a stunning victory before the high court, despite the conservative nature of the tribunal:
MELBER: I think it is very likely that this court is going to have a lopsided vote in favor of upholding this law. I think Chief Justice Roberts, if he sees that the Court is likely to uphold it, may join the majority in order to assign the opinion, perhaps write the opinion and perhaps dictate the opinion in a way that reaches other goals.
And that's the last thing I'll say about this. There is an ongoing fight in the Court about how national Congress can legislate. And a lot of that relates to commerce. We've seen statutes like the Violence Against Women Act knocked down for being too national and not tied enough to commerce. But even by that sort of somewhat retrograde view, health insurance, the health care market, this is commerce this is big-time, money spending --
ALEX WAGNER, host: Yes it is!
MELBER: --commerce. And so the idea that you're going to get a commerce clause narrowing on this case, I think, and what do I know, because I'm not on the Court, and I'm not a clerk on the Court and I'm not in the room.
WAGNER: But you're talking. [laughs]
MELBER: But I'm talking.
[laughter by Wagner]
Perhaps in context Melber would argue that it was "retrograde" for the Court to have found a provision of the Violence Against Women Act (VAWA) unconstitutional, as it did in May 2000 in U.S. v. Morrison. In that case, Chief Justice Rehnquist wrote that the Court "reject[s] the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce." Of course, most of VAWA was left standing and is still on the books today.
What's more, Melber's argument distorted the facts by suggesting to the MSNBC audience that if Congress cannot force Americans to buy health insurance that it can't substantially regulate the multi-billion-dollar insurance industry. Unless the Supreme Court were to overturn the 1944 case U.S. v. South-Eastern Underwriters Association -- which held that Congress can regulate interstate insurance companies -- that is just not going to happen.
What's more, both supporters and opponents of the mandate agree that the individual mandate is an unprecedented and novel interpretation/use of the commerce clause. The Court drawing a boundary on the commerce clause to forestall individual purchases mandates would not roll back any commerce clause case law, it would just overturn ObamaCare's mandate and more firmly establish the "outer limits" of the clause that the Court has hinted at in cases like Morrison and U.S. v. Lopez.
But the defense of ObamaCare continued beyond Melber's spin. After Melber finished his spiel, Wagner cited recent polling data showing 51 percent of Americans believe the individual mandate is unconstitutional. Even though the panel generally agreed the Court may uphold ObamaCare in part out of a concern to not appear too partisan, Wagner and the other panelists dismissed the average American's opinion as either misinformed, irrelevant, or both (emphases mine):
WAGNER: A Kaiser Family Foundation poll released this month asking the American public as far as the individual mandate, should the Supreme Court, how should the Supreme Court rule? Fifty-one percent of the country says its unconstitutional, 28 percent said it's constitutional.
Now I, personally am not confident, at all, that the American public really knows what's in the health care law, nor how contingent it is on the individual mandate.
JOHN HEILEMANN, New York magazine: Nor do they know what's in the U.S. Constitution, but that's another issue.
[WAGNER flashes a smile]
PATRICIA MURPHY, Citizen Jane Politics: Well, and also, 24 percent of people think that this has already been overturned by the Supreme Court, so I think there's just a vast amount of misunderstanding, due in part to the messaging of the Democrats when they were trying to get this through...
Murphy was mistaken, it's only 14 percent of Americans in a recent Kaiser survey who believe ObamaCare was overturned by the Supreme Court.
Curiously, Wagner ignored a recent Gallup poll that shows a much larger share (72 percent) of Americans believe the ObamaCare individual mandate is unconstitutional. Indeed, even 56 percent of Democrats agree that it's unconstitutional.
Part of the divergence in the numbers may be explained by the wording of the question.
In the Gallup poll, the question posed to respondents noted that ObamaCare requires that (emphasis mine) "every American must buy health insurance or pay a fine" and then asked if "this requirements is constitutional or unconstitutional."
By contrast, in the Kaiser poll, the question posed was whether the Court "should rule that it is constitutional or
unconstitutional for the federal government to require all Americans to have health insurance, or do you not know enough to say?"
Conspicuously absent from the Kaiser question is anything about the fine assessed if you elect to not buy insurance.