No, really. Bill O'Reilly tried to pass himself off as a Constitutional Law expert in this segment, insisting that the Supreme Court will overturn the individual mandate along purely partisan lines, 5-4. Here is the gist of his argument, loaded with unwarranted certitude:
It is as simple as that. The Federal government has no right to tell individual states that their citizens have to buy anything. That is a state decision to be applied mostly in public safety situations.
See? Simple as that. Billo has decreed that it must be so, therefore it must be, right? Well, he did bring on a guest, Caroline Fredrickson, president of -- wait for it -- the American Constitution Society.
Not that Billo let Ms. Fredrickson get a word in edgewise, but still, she managed to get the gist of her argument out there about why he was oh, so wrong. The wonkish among you can read the entire position paper here, but here are the toplines:
- The federal government exists and is empowered to address objectives that states acting individually lack, in the words of the Framers, the “competence” to handle on their own.
In very recent times, the same understanding has been articulated by the late Chief Justice William H. Rehnquist as the difference between matters that are “truly national” and those that are “truly local.”
As Justice Anthony Kennedy expressed the principle: “Congress can regulate on the assumption that we have a single market and a unified purpose to build a stable national economy.”
- To tackle those “truly national” problems, the federal government has the flexibility to pick solutions that are the most “competent” in practice. In the words of Justice Antonin Scalia, the national government “possesses every power needed to make [its solution] effective.”
- The democratic branches, not the judiciary, have the principal constitutional writ to shape economic policy, and, accordingly, the courts are to defer to Congress and give it the running room necessary to target objectives and craft effective solutions.
Now I went and looked at Ms. Fredrickson's bio to see what her background is. It's impressive.
Caroline graduated summa cum laude from Yale University with a Bachelor of Arts in Russian and East European Studies in 1986 and from Columbia University School of Law with a J.D. in 1992. In law school, she was a Harlan Fiske Stone scholar, served on the Columbia Law Review and co-founded the Columbia Journal of Gender and Law. She has been widely published and appears frequently in the media on topics including labor law, anti-discrimination law, and human and civil rights issues. She currently is a member of Law Students for Reproductive Justice's Advisory Board.
Then I went and checked Billo's bio to make sure I hadn't missed the part where he had graduated from law school with special focus on constitutional issues. Nope. A Master's in Public Administration does not a Constitutional scholar make. But to listen to him, you'd think he was either calling a horse race or else lining himself up to be the next Supreme Court nominee.
It was so much fun to watch Billo fuss and fume every time she told him he was wrong. When he thought he had her nailed on the question of whether the federal government had ever forced citizens to buy anything, she was right there with the Militia Act of 1792, which required citizens to buy muskets and powder, exempting only those who had religious objections. Whether or not that particular act (repealed and replaced in 1795) applies or has parallels to this situation is a determination above my pay scale, but she answered his question, and he didn't much like it, particularly because he didn't know anything about it!
Here's the real reason I wanted to post this. I want a record, a very, very public record of this promise:
O'REILLY: I appreciate you coming on, but this is absolutely a mandate, it's absolutely forced, it's absolutely police powers from the federal government, and it's going to be 5-4. --
FREDRICKSON: We'll see about that.
O'REILLY: And if I'm wrong, I will play your clip and I will apologize for being an idiot.
You heard it right from his own mouth. He'll apologize for being an idiot. I wouldn't hold your breath waiting if the outcome goes against him. He has a way of "forgetting" promises like this.
I'll wait, and I'm happy to remind him.