For sheer brio, nothing beats the conservative message machine. Ever since federal judge Henry Hudson ruled Monday in Virginia that a key plank in the health care reform law didn’t pass constitutional muster, the usual right-wing media suspects have been spinning the event as a seminal ideological victory. This morning, The New York Post described the decision as “stunning.” Yesterday, a Fox News analyst called it “a ringing proclamation here in America.” On Monday, the Republican National Committee announced, “ObamaCare Declared Unconstitutional.” The overall impression was that health reform itself had been stopped in its tracks.But anyone who relied exclusively on those infauxtainment sources would never have known the following facts:1. Two other federal judges have already ruled that the key provision – requiring all Americans to purchase health insurance – is indeed constitutional.2. Twelve legal challenges to the health reform law have already been dismissed in other federal venues.3. Hudson’s decision was hardly “stunning,” given the fact that he owns stock in a Republican political strategy firm that lists, among its clients, Virginia attorney general Ken Cuccinelli – the conservative rising star who brought the lawsuit to Hudson’s court in the first place. Plus the fact that Hudson boasts of his partisan pedigree; as he wrote in his ’07 memoir, “Campaigning for a federal judgeship is almost as challenging as running for political office…That is where 20 years of active service to the Republican party, and helping the campaigns of each senator (who sponsored him), paid dividends and gave me the edge.”4. Hudson confined his ruling to the mandate issue alone. He didn’t throw out the whole law, nor did he block its implementation.In the realm of political messaging, however, such trifling nuances are irrelevant; what matters is that conservatives now have a new rhetorical weapon in the ongoing war over health reform. They’ll use this ruling to stoke enthusiasm and build momentum for the impending congressional battles, notably the new House GOP majority’s plans to whack away at the law – in the hopes of ensuring that America remains the only western democracy with a massive uninsured citizenry.It’s a tad ironic, of course, that conservatives are so lavishly hailing Hudson’s decision, considering the fact that they typically rail about the “tyranny” of “unelected judges,” but, hey, these folks don’t do irony. They just move relentlessly forward, forever forcing their opponents to play defense.And that’s no surprise, because, in the messaging contest, the Obama White House and the Democrats are notoriously lead-footed. I certainly don’t recall any publicity blitz from the reform camp when those two earlier federal judges ruled that the insurance mandate was constitutional. A mere 15 days ago, for instance, Judge Norman Moon (based in Virginia’s western federal district; Hudson is in the eastern district) stated unequivocally that the mandate is in sync with the Commerce Clause.This dispute is all about the Commerce Clause. As I’ve noted here previously, that broad constitutional provision permits Congress to regulate economic activity among the states. But Hudson argued on Monday that Congress has no power to regulate inactivity; in his view, anyone who opts to live without health insurance should be free to do so. Requiring such a purchase would be an “unbridled exercise of federal police powers.”Yet Judge Moon, in his Nov. 30 decision, stated the obvious: Those who refuse to buy health insurance are simply dumping the economic burden on everybody else – and driving up premiums for everybody else. In Moon’s ill-publicized words: “Far from ‘inactivity,’ by choosing to forgo insurance, (abstainers) are making an economic decision to try to pay for health care services later, put of pocket, rather than now, through the purchase of insurance. As Congress found, the total incidence of these economic decisions has a substantial impact on the national market for health care by collectively shifting billions of dollars onto other market participants, and driving up the price of insurance policies.” In colloquial parlance, economic inactivity is just another form of economic activity.Moon is a Democratic appointee; so is the federal judge who ruled in Michigan, nine weeks ago, that “the decision whether to purchase insurance, or to attempt to pay for health care out of pocket, is plainly economic” and therefore well within Congress’ commerce powers. My point is that there are actually two sides in this dispute; as I’ve just shown, the Democrats have ample legal ammunition of their own.The big hitch, however, is that they are predictably slow off the mark to frame the debate to their advantage. The mandate issue ultimately will be resolved by the Supremes, but, in the meantime, this is a battle to shape public opinion during the prelude to the ’12 campaign. And, as evidenced by this week’s half-truth spin blitz, only one side has sufficiently suited up.
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