Your Lying Eyes

The week winds down and it’s a quiet Friday night in Hollywood, or quiet for those of us who don’t believe in Hollywood. Down the block on the Sunset Strip the new Ferraris and tricked-out Escalades are no doubt inching along, and the clubs filled with the pretty people, dressed to the nines, or however that is put these days. It’s hard to keep up. And there’s no point in keeping up, really. All those folks will get old and boring too, just like the rest of it. Let the paparazzi chase them.

Friday night for the rest of us is kicking back and considering the week that was, like in the old television show from the early sixties, This Was the Week That Was. You cannot take these things too seriously, in what passes for public discourse regarding the fate of our nation, as this week we were offered some startling evidence that what we took so seriously in the previous seven days was nonsense, or close to it.

That old television show is instructive:

The pilot featured Henry Fonda and Henry Morgan, guests Mike Nichols and Elaine May, and supporting performers including Gene Hackman. The recurring cast included Frost, Morgan, Buck Henry and Alan Alda, with Nancy Ames singing the opening song; regular contributors included Gloria Steinem, Tom Lehrer and Calvin Trillin. The announcer was Jerry Damon. Also a guest was Woody Allen, performing stand-up comedy; the guest star on the final broadcast was Steve Allen.

They covered the week that was. These days we’ll have to make do with Colbert and Stewart – no Tom Lehrer for us.

But we have our nonsense:

Fox News Channel’s competitors fired back Friday at the network over ads in three major newspapers claiming Fox alone covered last weekend’s protest in Washington, D.C.

“How Did ABC, CBS, NBC, MSNBC and CNN Miss This Story?” was the headline on the full-page ads that ran Friday. The headline is superimposed over photos of the rally that drew tens of thousands of anti-tax demonstrators and Obama administration opponents.

Fox’s taunt drew immediate reaction from the other networks, all of whom quickly offered up descriptions, transcripts of news reports and video proof of their rally coverage. Some denounced Fox for falsehoods.

Well, yeah. Everyone covered it. Who are you going to believe, Fox News or your lying eyes?

And CNN got on their high-horse:

CNN anchor Rick Sanchez put it even more bluntly in a heated, lengthy air-on retort that CNN, which competes directly with fellow cable channel Fox, showed repeatedly. Sanchez aired clips of CNN’s coverage from last Saturday, including interviews with protesters and a wide shot of the massive rally that looked like one featured in the Fox ad – a shot Sanchez said was aired repeatedly by CNN.

“Let me address the Fox News Network now perhaps the most current way that I can, by quoting somebody who recently used a very pithy phrase, two words,” Sanchez told viewers. “It’s all I need: You lie.”

What was this about? Fox News took out the ad in the Wall Street Journal and New York Post, but Rupert Murdoch owns those. That was no big deal. Running it in the Washington Post too might have been the problem.

But Michael Tammero, vice president of marketing for Fox News, shot back at Rick Sanchez in an email that was released to the world – he said it was “fair to say” that the tea party movement and all the stuff on ACORN and, specifically, the Washington march were “either ignored” or, with the march, CNN and the rest “marginalized it or misrepresented the significance of it altogether.” America was rising up to throw off its shackles, to rid itself of Obama and everything Obama stood for, and everyone but Fox News pretended that wasn’t happening, or that was the general drift of things. The response was that, well, we covered it, in depth, and it didn’t seem like that to us, although it was interesting. It just got odd. Why aren’t you covering the next American Revolution? You call that a revolution?

And you wonder why people don’t watch the news that much. Fox News says this is it – the people will take back their government, by any means necessary, as everyone in America now feels betrayed. The others maintain that while a good number of people are angry, the data show no such thing. To them this smells like a marketing trick, at their expense.

And people were pissed off at the Post:

ABC News spokesman Jeffrey Schneider said the ad was “just false” and that ABC has “a real problem with the Washington Post accepting an ad like this.”

In an e-mailed statement, the Post said it doesn’t reject an ad based on its content or sponsor unless the ad is “illegal, false, advocates illegal actions, or is not in keeping with standards of taste.”

When an ad is not contrary to those standards “we will not place limits on speech or content,” the paper said, adding that Fox was “expressing its opinion” about its competitors.

But something was false:

CBS said it had “multiple crews” at the rally and made it the lead story on the “CBS Evening News.” CBS Radio News offered hourly reports and had the story in its rotating lead throughout the day, the network said.

NBC declined comment but noted that NBC News had crews on the mall and the event led “NBC Nightly News” on Saturday and was covered on “Today” Sunday morning. MSNBC also covered the story with live reports throughout the day, the network said.

Yeah, yeah – they led with the story. But they didn’t call it a revolution. They didn’t report that America had turned on Obama and this was the beginning of the end of his presidency – they reported the public opinion polls, and didn’t report the march that Fox pretty much sponsored was more important than any polls.

Okay, now where are you going to get your news? The majors are arguing over who is lying. Trust no one. That was the week that was.

And racism was still a question. But for a black perspective, see Ta-Nehisi Coates:

But Barack Obama, bourgeois in every way that bourgeois is right and just, will not dance. He tells kids to study – and they seethe. He accepts an apology for an immature act of rudeness – and they go hysterical. He takes his wife out for a date – and their veins bulge. His humanity, his ordinary blackness, is killing them. Dig the audio of his response to Kanye Wes – the way he says, “He’s a jackass.” He sounds like one of my brothers. And that’s the point, because that’s what he is. Barack Obama refuses to be their nigger. And it’s driving them crazy.

It’s about time.

Now that is something to report.

But it gets odder, as this was the week that the Republican governor of Minnesota, Tim Pawlenty, announced that he has ordered all state agencies to “stop all state funding” of ACORN – immediately.

Steve Benen was not impressed:

That wasn’t exactly a bold decision – ACORN doesn’t get any state funding in Minnesota. Pawlenty was “stopping” something that never “started,” almost certainly to score a few cheap points with right-wing activists.

Well, he signed the certification that made Al Franken the new senator from Minnesota, and the sixtieth Democrat in the Senate, and didn’t tell the courts who ruled he must to go pound sand – so he had to do something. Stopping what wasn’t happening, and never happened, would have to do. It reminds one of what Zbigniew Brzezinski said of all the folks upset that we’ll scrap the Bush-era missile defense system planned for Europe. Brzezinski called it “a scheme that doesn’t work, against a threat that doesn’t exist, in countries that don’t want it.” You want to defend that? Fine, go ahead. Pawlenty wants to put an end to something that does exist? Fine, go ahead.

And in Louisiana, their Republican governor, young Bobby Jindal, did the same:

Louisiana Gov. Bobby Jindal issued an executive order to keep any state money from going to the controversy-wracked Association of Community Organizations for Reform Now, which has its national headquarters in New Orleans.

According to the state’s Division of Administration, no state agencies have existing contracts with ACORN.

The Louisiana Republican Party’s press release boasted that Jindal is “ending funding of ACORN.”

Where is Tom Lehrer when you need him?

And then there was Fox News legal analyst Andrew Napolitano in the Wall Street Journal, after citing a case in which the Supreme Court struck down a law that prohibited possession of guns in school zones, having at it on healthcare:

The Supreme Court finally came to its senses when it invalidated a congressional ban on illegal guns within 1,000 feet of public schools. In United States v. Lopez (1995), the Court ruled that the Commerce Clause may only be used by Congress to regulate human activity that is truly commercial at its core and that has not traditionally been regulated by the states. The movement of illegal guns from one state to another, the Court ruled, was criminal and not commercial at its core, and school safety has historically been a state function.

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.

What? Okay, friends who have taken classes from Napolitano at Seton Hall Law School say he’s cool – not as cool as the late Peter Rodino who taught there, but damned good. But this is very odd.

Out here at UCLA Law, we have the seriously and deeply conservative law blog from Eugene Volokh, and their Orin Kerr just stands back, in awe at the compressed and condensed inanity in just that second paragraph – “How many errors, misstatements, and plainly weak claims can you count?” And the readers respond:

You’re exchanging currency for a professional service. If that’s not commerce, then what is?

And another:

“In almost all instances, the delivery of medical services occurs in one place and does not move across interstate lines.” Similarly, the delivery of my Florida orange juice, Wisconsin cheese, and California raisins all occurred at my local Acme grocery store, and therefore did not move across state lines.

If you want to get in the weeds on this, see the attorney and law professor who calls himself Anonymous Liberal:

As Kerr points out, nearly every sentence in these two paragraphs is demonstrably incorrect, both with respect to the big picture and the details. First, the details. The statute invalidated by the Court in Lopez did not ban “illegal” guns from school zones. That would be redundant. It banned guns. Period. Second, it banned guns with 1000 feet of all schools, not just public ones. Third, it had nothing to do with the “movement of illegal guns from one state to another.” If it had, it clearly would have been constitutional.

As for the legal assertions, the Court in Lopez did not reject Wickard v. Filburn, as Napolitano claims; it merely distinguished it. More importantly, though, Napolitano so badly misstates the holding of Lopez that I seriously question whether he’s ever read it. He claims that “the Court ruled that the Commerce Clause may only be used by Congress to regulate human activity that is truly commercial at its core and that has not traditionally been regulated by the states.”

Um … no. The Court actually held – as we lawyers have drilled into our heads in Constitutional Law – that, pursuant to the Commerce Clause, Congress may regulate any activity that “substantially affects interstate commerce.”

And needless to say, this is a test that has traditionally been interpreted very broadly, including by this very same Supreme Court (see, e.g., Gonzales v. Raich (2005)). It is flat out false that an activity must be “commercial at its core” to be regulated by Congress. Napolitano just made that up. The same is true of his suggestion that Congress cannot regulate activity that has traditionally been regulated by the states. Just because Congress has not chosen to enter a particular field doesn’t mean it lacks the power to do so.

Moreover, it is absurd as a factual matter to claim that health care is an area that has been traditionally left to the states. Has Napolitano ever heard of Medicare or Medicaid? How about the FDA or CDC or the VA system?

But other than that Napolitano is right. And there’s this:

And on what planet is the delivery of health services (and sale of insurance!) not commercial in character? How many non-commercial activities fund armies of Washington lobbyists and spend billions on ad campaigns? Napolitano writes that “the delivery of medical services occurs in one place and does not move across state lines.” I suppose that’s true in some sense (at least most of the time). But the same is true of buying groceries or guns or just about anything else. And all of these things are clearly within the reach of the Commerce Clause.

It’s one thing to argue for a crackpot interpretation of the Constitution. Everyone is free to do that. But you can’t just blatantly misrepresent what the current state of the law is. You can’t just assert that Roe v. Wade means the opposite of what it actually means….

Of course only lawyers should read the whole thing. But it was a week for blatantly misrepresenting lots of things. Maybe it was the week it became the norm.

Of course one reader suggests it may have been Napolitano’s assumptions:

One implicit assumption is that the health care reform proposals would regulate the practice of medicine. They don’t, they regulate insurance. Maybe you could argue that the founders thought the practice of medicine wasn’t “commerce,” but you sure aren’t going to find any evidence that they didn’t regard selling insurance as “commerce.”

Another points out that his other assumption is that health care reform “has to be justified under the federal government’s limited regulatory powers” – but then the constitution grants the government a broad power to spend money for “the general welfare.” Healthcare might fit there – but not for Napolitano.

Okay – forget making sense of the news. All parties will tell you the others are lying. And forget the lawyers. All parties will tell you the others are lying about the law, and about the constitution. John Yoo was a real pioneer.

Kevin Drum says that although he’s not a lawyer, he can play in this sandbox, as he offers a rewrite of Napolitano:

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.

His comment:

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… 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.

Ah yes, but there’s a lot of that going around. It was that kind of week.


About Alan

The editor is a former systems manager for a large California-based HMO, and a former senior systems manager for Northrop, Hughes-Raytheon, Computer Sciences Corporation, Perot Systems and other such organizations. One position was managing the financial and payroll systems for a large hospital chain. And somewhere in there was a two-year stint in Canada running the systems shop at a General Motors locomotive factory - in London, Ontario. That explains Canadian matters scattered through these pages. Otherwise, think large-scale HR, payroll, financial and manufacturing systems. A résumé is available if you wish. The editor has a graduate degree in Eighteenth-Century British Literature from Duke University where he was a National Woodrow Wilson Fellow, and taught English and music in upstate New York in the seventies, and then in the early eighties moved to California and left teaching. The editor currently resides in Hollywood California, a block north of the Sunset Strip.
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1 Response to Your Lying Eyes

  1. raymond mcinnis says:

    Whew! today on your blog an impressive command of Net discussion on “why or why not” healthcare is a constitutional issue. For some, Medicare sticks in these folks craw, because its an age-limited single-payer program, but, for others — including some tea-baggers — if we heard anything in August, I bet the most frequent was “Don’t mess with my medicare!”

    Alan, your piece touches me on an important matter about “laws” and other time-framed human documents. The Bible, for one, was written long before a complex society like ours existed, but the bible-believers swear that “the bible rules” today. Likewise, our constitution — a wonderful document — but likewise time-locked.

    Back in my other life, when I also taught a research course on “American Cultural Studies”, I tried to steer some students to explore the “three-fifths clause” in the constitution, which put simply, for purposes of the census — and to placate some southern concerns to aspects of the constitution with which they objected — “slaves” counted as only “three-fifths” of the rest of us, or — in an extreme case of irony — technically, our current president can be considered only “three-fifths” of us “whites”.

    OK, this is a stretch, but, for me, only goes to prove that like all worldly documents, our constitution is locked in time, and — given that our plethora of technological advances developed since then lead to a more complicated society — as a society, the limiting aspects of tools like constitutions have to accommodate the pressures of social change.

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