When the SCOTUS decision came down, Kath and I were in a car somewhere in Pennsylvania en route to New York. Radio reception was for crap since we were in the mountains. So Kath, using her iPad, went to the website of the New York Times. Here is, from rough memory, what the paper of record had up a couple minutes after ten o’clock:
The Supreme Court has released its decision on health care. We are reading the decision and will provide a detailed report once we are confident in the accuracy of our analysis.
Meanwhile at that exact moment, both CNN and Fox were busy providing reportage about the decision that was 180 degrees wrong.
All reporters love scoops as much as anyone else, but I think television is more interested in getting news first while newspapers–at least the good ones–are more interested in getting news right.
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Yay, newspapers! (says the sports copy editor). What I love about CNN is when I come into my office at 5:30 and whatever the news of the day has “breaking news” under it. How many hours can something break?
The line about scoops is dead bang the problem (especially with yesterday’s events.) The CNN reporter jumped the gun and ran to get the report out first and missed the rest of the information on the ruling that came after the bit about the Court not backing the commerce clause argument. Fox News got it partially wrong as well, but the coverage of theirs I heard while bouncing around the channels on my XM made it sound like they were mangling it a bit because they were already trying to figure out how to spin it.
Using the CNN example, yeah, old school print media will always have better information than TV and radio because the time it takes to type everything up and print it off or post it means you’ll be getting the second, third and so on waves of news coming in and correcting first reports as you work. The Fox News model? I’ve seen hack rags and websites on the left and the right that have as little regard for the truth as most Fox News personalities. All the extra time it takes to type and print or post does is give them more time to think up spin.
It’s not about the medium, it’s about the integrity of the reporter and their discipline when it comes to waiting for the full facts VS being able to yell “FIRST!” in front of a microphone or TV camera.
Actually, I learned a long time ago NEVER to trust a news report of ANY supreme court opinion, since very few reporters are lawyers and therefore the overwhelming majority have almost zero capacity to read the fine print. The Court well may have declared the entire funding element unconstitutional (including as a tax too), but so far, in the rush to dámņ the chief justice for a “weasel,” no one sees his dragon in the weeds.
Bloomberg and AP were apparently also having a bit of a pillow fight over who actually broke the news first, too.
Which just goes to show how far the media has fallen in this country, when they care more about who got it first rather than simply caring that they got it right.
Although, the resulting “Dewey Defeats Truman” photoshop with Obama holding up an iPad of the CNN website won the internet yesterday.
The Daily Show
”The race was on! Which news organization would be the first to speak of the great decision? Who would emerge from the chaos as today’s grand champion of news firstiness!?” – Jon Stewart
http://www.thedailyshow.com/watch/thu-june-28-2012/cnn—fox-news-report-supreme-court-decision?xrs=synd_facebook
While I have many MANY issues with the 24-hour news cycle in general (not least of which is that it has killed journalism and ethics), this is kind of a flawed argument.
First: That wasn’t Print news”, that was “Internet News”. “Print News” is the newspaper you buy from the machine/hobo/have thrown in a puddle in the morning.
Second: Yeah, CNN and Fox both (to varying degrees) dropped the ball on this one. But one of the key elements of Television News is that it is “the news as it comes in”. It is not really designed for normal (sane) people and is instead for following major events or watching the recap show at night. Some people prefer to know everything as it happens (and deal with the retractions), others prefer to just check later after it is done. I was working when this idiocy happened, but I imagine the retractions were posted/stated VERY quickly afterward.
Think of it as the difference between checking the stock market in the newspaper/at the end of the day, and watching each and every up and down over the entirety of the day. If you have nothing better to do/it is your job, you are either on the trading floor or have a ticker running on your desktop. Otherwise, you wait until it is over. They serve different audiences.
That being said: Kudos for acknowledging that both CNN and Fox bûggërëd up (even if CNN bûggërëd up WAY worse).
I’d say that it’s not anything inherent in TV news. Newspapers can botch things up too, and they can’t easily turn around and say “oops.”
The whole concept of the “scoop” originally came from the print world.
It makes the networks that made the botch look bad, but it by the time most of us heard of it, they’d already corrected themselves.
I’m more appalled at how everyone blames “24 hour news” for all of journalisms ills. The 24 hour news business hasn’t existed in the US for years. Overnight news is mostly reruns of prime time programs. Weekends are dominated by pre-taped material. Extra coverage only happens if an event is already scheduled to occur, and when it is it’s covered to the point of overkill.
We live in the era of “page one, or page none” broadcast news.
If anything that print (or the internet) has an advantage over broadcast, is it has the ability to have a wider focus for those looking beyond the headlines.
Heck, even NPR screwed up slightly. I was on my way to breakfast when I turned on my radio and just caught the tail end of an announcement about the Health Care Act. I then heard Diane Rehm apologize for an earlier, erroneous report from her saying the Supreme Court had rejected the Act.
Personally, I think the Secret Service should look into the earlier reports from CNN and Fox. When you think about it, those reports were obviously trying to make Obama’s heart stop.
Great photoshop picture here: http://www.democraticunderground.com/1002869579
Y’know, the last time I screwed up that badly at work, I got fired. Why do I get the feeling none of these guys are worrying about their job security right now?
I suspect that, had they first annouced that the Health Care Act been upheld, and then they’d discovered it had been overturned, THEN heads might’ve rolled at Fox.
Really, Kim? Sorry, but that’s an inane argument with nothing to back it up whatsoever.
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As to the topic at hand, I do usually love print more than other types of media for some of the reasons stated. I’m more likely to get the steak – which is what i care about – than sizzle or endless analysis and “Breaking News” that is anything but.
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However, in this case I can forgive everyone from Fox to CNN – though they really waited a bit to realize they made a mistake – to NPR to AP for their mistake.
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Roberts’ opinion was EXTREMELY long and convoluted – some would say inane – and in fact, seems to have been written by two different people.
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In fact, “losing” the case pales in comparison to the embarrassingly shoddy jurisprudence Justice Roberts uses to bolster his opinion. And that– not the effects of the decision– is where the outrage should all be directed.
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Networks had reason to believe yesterday morning that Justice Roberts had actually acted to overrule the ACA– he gave them a WHOPPING FORTY PAGES of it (the PDF of the entire Court decision is a totally manageable 193 pages). Dividing the issue into one of the Commerce Clause and one of the Necessary and Proper Clause, Justice Roberts took the time to explain why interstate commerce has nothing to do with the individual mandate and why said legislation might be “necessary,” but not “proper.”
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He followed that up with an explanation for why forcing people to purchase certain things or behave a certain way is not only unconstitutional, but unamerican:
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To quote the Chief Justice:
“People, for reasons of their own, often fail to do things that would be good for them or good for society. Those failures– joined with the similar failures of others– can readily have a substantial effect on interstate commerce. Under the government’s logic, that authorizes Congress to use its commerce power to compel citizens to act as the Government would have them act.”
He then added: “That is not the country the Framers of our Constitution envisioned.”
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Even before explaining his reasons for why the individual mandate is unconstitutional, Justice Roberts had to explain why the suit against the government was valid. And to do that, he needed to argue for several pages that a fine on those who do not purchase insurance is not a “tax” by definition. That’s because the Anti-Injunction Act, which forces those who intend to sue on an unfair tax to pay it and receive reimbursement later, doesn’t allow for suits on taxes that aren’t yet set in motion. The Anti-Injuction Tax doesn’t apply here, Justice Roberts ardently explained, because “there is no immediate reason to think that a statute applying to ‘any tax’ would apply to a ‘penalty.’” He notes that because Congress called the fine a “penalty” and called other things in the bill a “tax,” the Court is obligated to assume that they deliberately refused to call the fine a “tax,” as precedent dictates.
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All of these arguments against the individual mandate are logical, valid, and on solid historical footing. So what happened?
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The only answer Justice Roberts gives to why the Court ultimately ruled the way it did appears somewhere on the 39th page of the ruling– a sign any high school English teacher could tell you that the student started writing his essay with a completely different thesis in mind, and shifted gears halfway. The individual mandate, Justice Roberts concludes, is a tax after all, because some people say it is.
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No, really, that’s it! I swear, it’s like he listened to those who were casting the Court ain a partisan light and just said “Fûçk it! I’m changing my mind!”
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“It is well established that if a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning that does not do so. Justice Story said 180 years ago: “No court ought, unless the terms of an act rendered it unavoidable, to give a construction to it which should involve a violation, however unintentional, of the constitution.”
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he then continues, “The question is not whether that is the most natural interpretation of the mandate, but only whether it is a ‘fairly possible’ one.””
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It is possible to twist the fine print into a pretzel and make it look like a tax, and that’s enough for Justice Roberts on Page 41, who is apparently a different person than Justice Roberts on Page 20. This Justice Roberts believes that the fine “it makes going without insurance just another thing the government taxes, like buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax.” Even more offensive to the sensibilities of any lawyer is the fact that, through it all, Justice Roberts makes clear he is aware of the discrepancy in thought. In fact, he highlights it, claiming that, because Congress chose not to use the label “tax,” it doesn’t apply for the purposes of the Anti-Injunction Act, as that choice remains up to the legislature. “That choice does not, however, control whether an exaction is within Congress’s constitutional power to tax,” he declares, for some reason.
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On its face, his point appears sensible– a tax by any other name would sting just as harshly, so what Congress decides to call it shouldn’t matter. If that were the case, however, Justice Roberts should have simply thrown out the lawsuit for violating the Anti-Injunction Act. The fine for not having insurance is either a tax or it isn’t; it is either imposed by the IRS or it is not; it either invalidates this lawsuit or it doesn’t. Justice Roberts cannot have it both ways here, whether one politically supports the ACA or doesn’t. That he thinks his statement would be enough to explain the turnaround to the average reader, perhaps assuming they would forget his stance on the matter 20 pages before, is an insult to the reader’s intelligence. That, ultimately, is the truly unseemly nature of this decision– not upholding a move by the state to tell the individual what is best for them; not that the Court almost invalidated a mandate that looks pretty much like a number of other constitutional mandates.
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Justice Roberts thinks he can get away with changing his mind in the middle of a decision after going to such lengths to write an eloquent takedown of his own position. He likely will, after embarrassing a number of media outlets in the process. In a job with infinite tenure, he has nothing to worry about. But it is he who truly deserves the deluge of outrage that will inevitably fall on legislators and the President, on pundits and doctors alike.
I’m glad Jerome got a copy of the pdf so he could point out how bad this opinion is. Because if you listened only to the analyses tossed out by people who are actual legal, well, analysts, you might get the impression that the Chief Justice had produced something that was really quite clever.
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Hm, actually, come to think of it, Jerome’s wrong. The opinion really is clever. I think someone was saying something about making an “inane argument with nothing to back it up whatever.” Well, that’s what happens when nonlawyers spend a couple hours glancing over a 193 page constitutional law opinion and pronouncing the Chief Justice’s argument to be bollucks. That would be like me popping the hood of my car and, after five minutes, commenting on how badly German engineers design things these days. Here’s a brief primer on CJ Roberts’s opinion.
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Step One: Determine whether SCOTUS can hear the case at all right now. There is something called the Anti-Injunction Act that cordons off Federal judicial review of some tax laws until they’ve been paid. I.e. you can’t get an injunction preventing the IRS from collecting most taxes. (Hence the name.) This is a departure from most standing rules (the rules that govern whether a case can be brought in court)– often the fact that someone is about to suffer an injury will get you into court as readily as having suffered it. For instance, the fact that Jonathan Vilma hasn’t lost any game checks yet won’t keep him from suing the NFL to lift its suspension. (The fact that the NFL has the legal right to suspend him, however, is rather more of a problem. Still, he has the ability to come into court now, and lose now, instead of waiting until September to lose.)
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Congress passed a specific law that says, generally, if you object to the legality of a tax you have to pay it and then sue for a refund. However, Congress can’t shoehorn everything into this exception by putting all legislation into the Tax Code (which is why Roberts brings up an old case about something called the Child Labor Tax). And this exception certainly doesn’t apply if Congress itself doesn’t even invoke it. So he sets this aside easily, and we can proceed to the next step.
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Step Two: Congress claims it has the authority to pass this under the Commerce Clause, which gives the Congress the authority to “regulate commerce.” Roberts says “no, no you don’t.” THIS IS IMPORTANT. There’s an argument to be made that it’s more important, long term, than the outcome of the case. There are 5 votes on the Supreme Court saying that a major piece of legislation exceeds Congress’s claim of authority under the Constitution. This is big. Very big. It’s why members of the conservative wing of the chattering classes have been doing victory jigs today.
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Step Three: Judicial restraint. That’s the pretzel you’ve mentioned. Roberts said in his confirmation hearing, and put into practice yesterday, that he believes policy decisions are in the hands of the political branches. In his hearings, he said that judges are “acutely aware” (if I remember the quote right) that “millions and millions” of voters voted for the political branch members, and none at all for judges. So if there is a way for the Court to let the democratically elected representatives express their policy preferences under the Constitution, the Court should adopt that interpretation of the law. And a majority on the Court held that, whether or not Congress could stretch the Commerce Clause as far as it wanted to (the dissent and Roberts say no, but the rest of the majority say yes), they could have accomplished the same thing by invoking their tax-and-spend powers under the Constitution. Congress set the individual mandate up to function more or less like a tax. So even if Congress didn’t call it a tax and invoke the Anti-Injunction Act, it can still be considered a tax. As Jerome correctly noted, whether Congress calls something a tax doesn’t always define the issue, and the Court can and will nix “taxes” that are really other things, but this one is (barely) enough of a tax to pass constitutional muster.
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Step Four: The Medicare Expansion that Everyone Forgot About While Fighting Over the Individual Mandate. The Court, in another HUGELY IMPORTANT holding, ruled that there are limits to which the Congress can condition Federal funding on State government behavior. It takes a lot for the conditions to be so coercive as to be unconstitutional, and up until now that’s really been a theoretical issue. However, spending decades building up Medicaid into a program that the states can no longer really decline to participate in, Congress can’t threaten to yank the funding if the state doesn’t do what the Feds want. (The problem here was that ACA expanded Medicaid from a response to poverty to cover people who made 133% of the poverty level, i.e. people who were definitionally not poor. Congress graciously offered to cover 100% of the expansion cost in year 1, 90% in year 2, no promises in year 3 and authorized HHS to pull ALL of the Medicaid funding if the state doesn’t play ball. Note: this part of the opinion was 7-2. Only Ginsburg and Sotomayor didn’t see a problem with this.)
Or, golly, Jerome, I might’ve been indulging in a bit of whimsy that you took WAY too seriously and then went off on a rant about the whole decision. Take a deep breath and kick back with a libation of your choice.
Hey, Jerome?
Might want to look here…
As a matter of law, Jerome’s analysis is incorrect.
Justice Roberts followed the basic rule of constitutional construction, which starts with the Oath of Office Clause and says: All who swear, as a condition of their office, to preserve, protect, and defend the Constitution, from Pelosi to Gingrich, are presumed to do so in good faith, and that is no different for any justice of the Court. A JUSTICE’S OATH IS NEITHER HIGHER NOR LOWER THAN ANY OTHER REPRESENTATIVE OR OFFICER, AND THEREFORE THE COURT MUST ASSUME, BARRING ADDITIONAL EVIDENCE, THAT THE OTHER CO-ORDINATE BRANCHES ACTED LAWFULLY AND IN ACCORDANCE WITH THEIR OATHS. This is critical, for what that requires of the Court, when it does find an APPARENT unconstitutionality, is that it REEXAMINE the statute before it to ascertain if PERHAPS Congress meant something else, which is NOT unconstitutional.
In the instant matter, Roberts started with the Act, which does not at first sight appear to be a tax law at all but, rather, a regulation of interstate commerce. Since, on its face, it appears to be a regulation of commerce, the anti-injunctiuon act does NOT apply, and the Court has JURISDICTION — the POWER to decide the issue.
HOWEVER, as a regulation of commerce, the statute fails the test of constitutionality, since punishing someone for NOT buying anything is NOT commerce and therefore CANNOT cross a state line (what I’ve been saying all along).
BUT, that cannot end the inquiry, because the Court has a legal obligation to uphold the law if there be ANY REASONABLE CONSTRUCTION which removes the constitutional infirmity. That construction was given by Justice Ginsburg, who pointed out that, had Congress chosen to create a single-payer system, then what we would have is a tax similar to Social Security. Notice that NOT ONE JUSTICE (not even Thomas) said she was wrong!
SO, at the surface at least, it does appear that the funding provision can be upheld if it’s upheld as a tax, and that’s what Roberts did, even though (as the conservative dissenters pointed out), there is little in the actual text of the Act to indicate that such is what Congress meant. To get to the conclusion of want of unconstitutionality, Roberts had to employ a very tortured construction of the Act, but this is a construction required by the inability to uphold the law any other way.
Now, for ten points, who sees the dragon, and why am I one opponent of Obamacare who is perfectly happy with the Chief Justice’s opinion?
Print is superior to electronic media?
Yeah i guess so.
OTOH:
That wasn’t a radio Harry Truman was holding up…
Nope. It was the Chicago Tribune, an ultra conservative paper. So the lesson to be learned is, conservatives are unreliable sources of information no matter which media they’re a part of.
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Sadly, even print media has suffered quite a drop in quality, whether due to staff cutbacks (proofreaders? Who needs them?) or just a need to cut corners to get it out NOW.
Newspapers were never perfect (what is) but they were careful and I can’t remember seeing such screwups even a few years ago as “…put the goalie out of his mercy (I’m fairly sure he means ‘misery’). Senators’ coach Paul MacLean pulled starting goaltender Craig Anderson and replaced him with back up goalie Craig Anderson.” Must be confusing having two goalies with the same name on the same team.
Or another one where “… was on the ice for four of Philadelphia’s seven goals against the Flyers.” Philly’s playing against itself? Who do the fans root for?
Journalists have always had tight dealines to meet and you expect them to occasionally slip up. But that’s what you have editors and proofreaders for, to catch those slips. Or, at least, you USED to have them there. Nowadays, doesn’t look like it.
Sadly, even print media has suffered quite a drop in quality, whether due to staff cutbacks (proofreaders? Who needs them?) or just a need to cut corners to get it out NOW.
Newspapers were never perfect (what is) but they were careful and I can’t remember seeing such screw ups even a few years ago as “…put the goalie out of his mercy (I’m fairly sure he means ‘misery’). Senators’ coach Paul MacLean pulled starting goaltender Craig Anderson and replaced him with back up goalie Craig Anderson.”
Or another one where “… was on the ice for four of Philadelphia’s seven goals against the Flyers.” Philly’s playing against itself? Who do the fans root for?
Journalists have always had tight deadlines to meet and you expect them to occasionally slip up. But that’s what you have editors and proofreaders for, to catch those slips. Or, at least, you USED to have them there. Nowadays, doesn’t look like it.
Yes, you have far less editors overseeing far more writers per person. Despite the fact that writers are drastically down in numbers as well. And yes, when you have renowned, experienced writers being chopped or bought out, well, yes, proofreaders and copy editors aren’t exactly going to be considered terribly important, unfortunately.
Apologies. Obviously not meant as a double entry. Now that we have the paragraph spacing problem solved, maybe work on a ‘delete’ or ‘edit’ function, pretty please?
And most of the time, they don’t even bother to correct their initial bad reportage…
Wildcat
As for the word “Obamacare”, look no further to see how badly split the country is nowadays. Half the population say “Obamacare” in praise, half as a pejorative. And, from their points of view, they are both right. I doubt very much that I’ll live long enough to see this mess sorted out. Take at least another generation or two. If ever.
Here’s the thing about the current half-and-half polling regarding the SCOTUS decision. Although I admit I haven’t done the research, it’s my suspicion that every single issue of any consequence–anything that led to social advancement–began as a minority opinion. And then, as Margaret Mead once said, a small group of dedicated people decided to do something about it, and it got changed. (And I’ll bet that when that happened, no one in that group of dedicated people was a conservative.)
I don’t have polling figures, but I suspect that when Brown vs. Board of Education came down (the 60th anniversary will be two years from now) there were plenty of people who were less than supportive of the notion. Same thing with interracial marriage, and social security. Hëll, we’ve seen a social shift in our own lifetime. Twenty years ago, issues like gay marriage and don’t ask/don’t tell were public opinion non-starters. And we’ve seen, over that time, attitudes shifting. Twenty years from now, people will wonder how it could have ever been an issue. With any luck, at that point, they’ll also be as accustomed to the health care plan as we are now to social security and Medicare.
Granted, just because you’re currently in the minority doesn’t mean your cause is righteous. I don’t believe Margaret was thinking of the Ku Klux Klan when she was talking about dedicated individuals. Then again, once upon a time, their attitudes reflected the majority opinion. It’s just that society outgrew them. Just as, sooner or later, society tends to outgrow any opinion that stems from wanting to curtail the rights of others.
Of course, in this case, there are two sets of rights: the rights of people to have health care versus the rights of people not to have to be made to pay for it. That’s why Romney’s position is so entertaining: he believes in all the benefits of Obamacare, but doesn’t feel anyone should have to pay for it. So, y’know…good luck with that.
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