Truthers, Birthers, Tenthers

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Fox News legal analyst Andrew Napolitano, after citing a case in which the Supreme Court struck down a law that prohibited possession of guns in school zones, has this to say:

Applying these principles to President Barack Obama’s health-care proposal, it’s clear that his plan is unconstitutional at its core. The practice of medicine consists of the delivery of intimate services to the human body. In almost all instances, the delivery of medical services occurs in one place and does not move across interstate lines. One goes to a physician not to engage in commercial activity, as the Framers of the Constitution understood, but to improve one’s health. And the practice of medicine, much like public school safety, has been regulated by states for the past century.

Orin Kerr, not exactly a screaming lefty, is fascinated by the sheer volume of obvious inanity in just this one paragraph.  “How many errors, misstatements, and plainly weak claims can you count?” he asks?

Sadly, I’m not a lawyer, so I can’t really play.  But let’s rewrite this a bit:

Applying these principles to President Johnson’s civil rights proposal, it’s clear that his plan is unconstitutional at its core. Running a restaurant consists of the delivery of vital nutrients to the human body. In almost all instances, the delivery of food occurs in one place and does not move across interstate lines. One goes to a restaurant not to engage in commercial activity, as the Framers of the Constitution understood, but to eat. And the licensing of eating establishments, much like public school safety, has been regulated by states for the past century.

To the dismay of people like George Wallace and Robert Welch, that didn’t fly back in 1965 and it won’t fly today.  Taking money for the delivery of services, intimate or not, is plainly commerce.  (In the case of medical services, about $2 trillion worth of commerce every year.)  Virtually everything in a doctor’s office has crossed state lines to get there.  Thousands of insurance companies, medical groups, hospital chains, and medical suppliers are nationwide corporations.  The federal government has regulated the sale and distribution of pharmaceuticals for over 70 years.  Doctors are routinely employed by out-of-state corporations.  If the medical industry isn’t interstate commerce, then nothing is.

Napolitano’s reasoning wouldn’t pass muster in a first-year con law class.  Like all the other “tenthers” trying to claim that Congress has no constitutional authority to regulate healthcare, he may really, really wish that his arguments were true.  But they aren’t.  The guy’s a clown.

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THE BIG PICTURE

You expect the big picture, and it's our job at Mother Jones to give it to you. And right now, so many of the troubles we face are the making not of a virus, but of the quest for profit, political or economic (and not just from the man in the White House who could have offered leadership and comfort but instead gave us bleach).

In "News Is Just Like Waste Management," we unpack what the coronavirus crisis has meant for journalism, including Mother Jones’, and how we can rise to the challenge. If you're able to, this is a critical moment to support our nonprofit journalism with a donation: We've scoured our budget and made the cuts we can without impairing our mission, and we hope to raise $400,000 from our community of online readers to help keep our big reporting projects going because this extraordinary pandemic-plus-election year is no time to pull back.

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