The Health Care Ruling Does Not Vindicate the Roberts Court

One of the early reactions I am seeing in comments to liberal blogs is that the 5-4 decision of the US Supreme Court to uphold the Affordable Care Act is some kind of reassuring sign that the conservative justices still have some respect for the legal principles that judges are supposed to operate under.

I'm far from convinced this is the case.

First:  The decision was 5-4.  The only surprising vote is that the 5th vote to uphold was from Roberts instead of say, Kennedy who is the usual "swing" vote these days (he's actually one of the top 10 most conservative justices since political scientists started tracking this in the 30s, but on the most conservative court in generations, he is the centre).  But that still means there were four justices perpared to throw out decades of Commerce Clause interpretation, and that's just on the mandate.  Were the other four prepared to declare the entire act unconstitutional?  We'll see when the rulings hit the web, but I expect so.  Remember, 19 out of 21 legal scholars contacted by Bloomberg news agreed it was Constitutional.  When you have that level of legal consensus, you should expect an 8-1 or 7-2 ruling, not a 5-4.  I'd also note here the predictions that Scalia wouldn't overturn himself from Gonzales v Raich didn't bear true.  Consistency is not a hobgoblin haunting his particular mind.

Second:  The ruling details I am seeing reported at SCOTUSBlog say that Roberts actually agrees the mandate is unconstitutional under the Commerce Clause power, but found it constitutional under Congress' taxation powers.  So in fact we do have 5 Supreme Court justices voting to overturn 75 years or so of Commerce Clause jurisprudence. 

Third:  That also means there were four justices who don't even agree that Congress can impose a $500 tax on all Americans and then allow that tax to be waived if certain conditions are met (like say, providing proof of health insurance).  This is remarkable legal hackery.  Are these justices (Kennedy, Thomas, Scalia, Alito) also prepared to find the 16th Amendment unconstitutional? 

There are various cynical ways to interpret why Roberts provided that fifth vote to uphold, and I find those much more plausible than that he suddenly found his legal conscience.  Taking this as any kind of sign that the Roberts court puts legal principles first and foremost in its decisions would be a mistake. 

More Sun News Blatant Bias

Researching the piece yesterday on Sun News Network's evident complicity in knowingly airing a false and misleading story to Canadians, I came across this, by QMI's Mark Dunn, carried by Sun News:

OTTAWA -- Finance Minister Jim Flaherty opened the door Monday to new stimulus spending to help the economy weather what many economists fear is a looming global recession.

Ok, as far as it goes.  In fact, I'd call this mild good news, Flaherty is surprisingly Keynesian and willing to eschew conservative economic nonsense in understanding that some kind of European economic collapse might necessitate further stimulus.  Go down a few paragraphs:

The official Opposition NDP did not mention the worsening economic picture during question period Monday, nor has it raised the potential loss of union jobs in Oshawa. It was more concerned with smoke stack monitoring and a budget implementation bill it opposes.

Wait, what?  This is an ostensible news piece, and by what evidence do we conclude that the NDP is "more concerned with smoke stack monitoring" than job losses or economic conditions?  Based on their questions on one day's QP?  Even the bit noting the NDP "did not mention" the economy or job losses in Oshawa is of course highly dubious.  Is it normal journalistic practice to list arbitary things that politicians or political parties don't discuss on some particular day's QP?  I bet the NDP also didn't mention that they disapprove of child pornography and slavery.  Better get on that scoop, Sun.

It should go without saying that the NDP has made a stink over the job losses in Oshawa and the poor economic conditions. Just not today.  If Sun News wants to run some kind of statistical analysis of topics the NDP raise in a long series of Question Periods, and make hay of that, that at least might indicate some legitimate preference of certain topics to others on the part of the NDP. 

But wait, there's more:

In its most recent budget, the government announced controversial changes to old age security, employment insurance and other measures to sustain the economy in the long run and prevent the kind of budget problems many European countries are experiencing.

Behold the perils of the passive voice.  Is the author stating that the controversial measures actually do sustain the economy and prevent European budget problems?  Or just noting that the government claims they do?  Hard to say, but that's where honest journalism would require a more explicit note that these are the government's claimed justifications for these things, but really this is stated as if it is fact (it's not even close to true that European debt crises are generally about pensions and employment insurance anyway, mostly it's completely about their collapsing economies not supporting sufficient tax revenue.  Spain was running government budget surpluses prior to the crisis)

It also makes a part of the paragraph above quite ridiculous, where he describes the NDP as opposing "a" budget implementation bill.  There's only one.  It's "the" budget implementation bill, and the NDP's opposition is about the controversial matters like changes to OAS he is describing in such factually glowing terms.  It's not some strange arcane matter that has journalists scratching their heads, it is in fact the sort of thing the opposition is supposed to focus on, and frankly, to oppose.

I often challenge conservatives complaining about CBC's supposed liberal bias to provide examples and they never do.  They usually get sputtering mad or feign amusement over the notion that anyone challenges such an "obvious" truth.  Well, here's a pretty good example of the reverse.  I found it just reading Sun News' front page, picking an article I found interesting for its own sake.  If that's par for the course there, I may have to revise my view of them as a pale shadow of Fox.  They seem right in the running in the competition for most egregious bias.

Bureaucrats and Media: Getting the Truth Out

I've never been in the civil service, so maybe this is well understood there, but it seems to me that the story of Sun News and the staged citizenship swearing event highlights the ability for muzzled bureaucrats to get the real story out when the government blames them for its poor behaviour or performance.  As long as a few media organizations are willing to spend the time making Access to Information Act requests, the bureaucrats just have to make sure they've emailed one another the real details of the events in question, and let the media do the rest.  I hope these employees are protected from retribution, when this sort of thing happens. 

In a government that has taken to muzzling scientists, bureaucrats, diplomats and in some cases even its own cabinet ministers, the Access to Information act provides a vital outlet for information the government doesn't want out. 

In that vein, I would look out for the goverment amending (gutting) the act.  I'm sure they could concoct some kind of cost-cutting justification for doing so, and get their loyalists all enraged about the biased liberal media engaging in costly witch-hunts.

You heard it here first. 

Will Sun News Investigate the Staged Citizenship Ceremony? Will the CRTC?

Last October, Canada's Sun News Network, filmed and broadcast a story on what was portrayed as a regular swearing in ceremony for new Canadian citizens taking their oath of Citizenship.  Turns out, the participants were all already citizens and the ceremony was a "reaffirmation" ceremony.  Worse, most of the participants were actually civil servants working for the Ministry of Citizenship and Immigration Canada.  This came out because the Canadian Press obtained emails through access to information showing the event was essentially staged for the benefit of the cameras.  At the time, Immigration Minister Jason Kenney blamed the civil servants for staging the event, and apologized to the network that had covered it, Sun News Network.  Kudos to the Canadian Press for staying with the story and requesting more documents because, well:

Kenney had criticized civil servants when it was revealed six bureaucrats reaffirmed their oath of citizenship alongside three or four bona fide new Canadians during a televised ceremony last October.

But he was striking a decidedly different tone Tuesday after The Canadian Press published the bureaucrats’ version of events — that the network was actively involved in the decision to use civil servants as stand-ins.

During the Sun News broadcast, the hosts referred to the group as new Canadians that had “finally” received their citizenship.

Now of course the minister lied both when he blamed lowly civil servants for the staged event and in claiming Sun News was unaware that the event was staged.  Also unsurprising that once again, civil servants were blamed for a political screw up.  This government has a track record of blaming staffers, underlings and bureaucrats whenever anything goes wrong.

But what about Sun News?  Back in February we were supposed to believe the Sun News didn't know the swearing event was staged.  Now we have documents credibly alleging that Sun News employees knew the event was fake and even participated in the last minute decision to throw the bureaucrats into the event when too few of the government's hand-picked participants showed up. 

It seems to me we have a prima facie case of Sun News knowingly airing "false or misleading news" in contravention of the Canadian Broadcast Act.  Will the CRTC investigate?

Even aside from that, from a simple journalistic credibility perspective, Sun blithely accepted Kenney's February apology to them for his department "misleading" them.  Will they investigate internally to find out who at Sun News knew all along?  They're not even carrying the story today.

It's pretty hard to avoid the conclusion that Sun News is just "Fox News North," operating under a still functional sort of "fairness doctrine" set of regulations up here which prevent it from going the full Murdoch, but still working in as much pro-Conservative bias as they can.  I know the substance of this event is pretty small bore in the grand scheme of things.  A citizenship swearing event staged for an ideologically friendly news network to run a soft story is hardly the most imporant issue, but at heart the issue is about truth in news and the government's ability to lie to the public without consequence.  If this sort of thing is allowed, much greater and more consequential propaganda could easily follow.  It mostly appears this one was put together by bungling amateurs in Kenney's political operation likely thinking that no one would look into such a minor event.  But letting this slide will teach other politicians what they can get away with.

It's also a good moment for uncovering what Sun News is really about.  A chance for the upstart network to show its quality.  Conservatives have been complaining for years about CBC's pre-supposed bias and poor journalism.  Yet, given the chance to show up the "state broadcaster", Sun News is hardly shining. 

And even if you want to still believe the Sun News didn't know the event was staged, that's hardly the greatest endorsement of their journalistic acumen:  A bunch of cubicle dwelling career bureaucrats managed to pull one over on the network that prides itself on "hard news."  A few quick interviews with the event participants would have quickly uncovered the lack of bona fide new citizens.  Even a better soft news outfit would have done these interviews just for the sake of having some human interest footage.  So, Sun News:  Complicit in a journalistic fraud, or merely gullible and incompetent, which are you?

Krugman v. Austerity

This BBC debate between Paul Krugman and two British austerity advocating conservatives is the best airing of the relevant issues I've yet seen on a regular TV segment.  I certainly think Krugman came out on top, as his opponents spent the entire debate avoiding his initial (factual) statements that austerity had resulted in weaker economic performance in Britain and especially mainland Europe, and had actually weakened the government budgetary situation leaving austerity without even a plausible claim to some kind of policy success.  It gets kind of darkly humourous at the end when one of his opponents ends up saying "well, austerity has some successes doesn't it?" and actually brings up Estonia as his example of austerity policy success.  The host intervenes that there isn't time to get into Estonia, but regular readers of Krugman's site know he's dealt with the Baltic states before, and well, if this is "success", I don't want to know what failure would look like:



I note of course that even the publicly funded BBC felt it was necessary to pair Krugman up against two conservatives.  Now, given that this is Krugman, it's possible this is just because he's such a towering figure that it really isn't fair to put him up against ideological opponents at a 1:1 ratio.  On the other hand, if this debate was held on US tv, Krugman would have been given an "ally" who was some DC centrist who would end up agreeing with most of the right wing position on austerity but with some trivial caveat like making the rich lose mortgage interest tax deductions on their summer homes.  So it's probably for the best that Krugman took that fight alone.  Some allies are worse than no help.

The other thing that would have happened on US tv, particularly Sunday morning shows, is that the host would not have let the debate go that long (8 whole minutes!) without intervening at a key moment (when austerians are clearly on the run) to change the subject to some trivial sideshow issue and save good Villagers from being public embarrassed.

Well worth the 8 minutes to watch.