Truthers, Birthers, Tenthers

Fight disinformation. Get a daily recap of the facts that matter. Sign up for the free Mother Jones newsletter.

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.

HERE ARE THE FACTS:

Our fall fundraising drive is off to a rough start, and we very much need to raise $250,000 in the next couple of weeks. If you value the journalism you get from Mother Jones, please help us do it with a donation today.

As we wrote over the summer, traffic has been down at Mother Jones and a lot of sites with many people thinking news is less important now that Donald Trump is no longer president. But if you're reading this, you're not one of those people, and we're hoping we can rally support from folks like you who really get why our reporting matters right now. And that's how it's always worked: For 45 years now, a relatively small group of readers (compared to everyone we reach) who pitch in from time to time has allowed Mother Jones to do the type of journalism the moment demands and keep it free for everyone else.

Please pitch in with a donation during our fall fundraising drive if you can. We can't afford to come up short, and there's still a long way to go by November 5.

payment methods

ONE MORE QUICK THING:

Our fall fundraising drive is off to a rough start, and we very much need to raise $250,000 in the next couple of weeks. If you value the journalism you get from Mother Jones, please help us do it with a donation today.

As we wrote over the summer, traffic has been down at Mother Jones and a lot of sites with many people thinking news is less important now that Donald Trump is no longer president. But if you're reading this, you're not one of those people, and we're hoping we can rally support from folks like you who really get why our reporting matters right now. And that's how it's always worked: For 45 years now, a relatively small group of readers (compared to everyone we reach) who pitch in from time to time has allowed Mother Jones to do the type of journalism the moment demands and keep it free for everyone else.

Please pitch in with a donation during our fall fundraising drive if you can. We can't afford to come up short, and there's still a long way to go by November 5.

payment methods

We Recommend

Latest

Sign up for our free newsletter

Subscribe to the Mother Jones Daily to have our top stories delivered directly to your inbox.

Get our award-winning magazine

Save big on a full year of investigations, ideas, and insights.

Subscribe

Support our journalism

Help Mother Jones' reporters dig deep with a tax-deductible donation.

Donate