As evidence for their scoffing, they pointed out how that great constitutional scholar Nancy Pelosi was incredulous at the notion that there could possibly be an issue with it, or the more honest Democrat congressman (who somehow inexplicably later lost his election) who didn’t even think that it mattered. They also pointed out the sophisticated legal argument that it must be constitutional, otherwise its proponents would have actually put forth legal arguments supporting the case:
That the law is constitutional is best illustrated by the fact that — until recently — the Obama administration expended almost no energy defending it.
Could there be a more airtight defense? Perhaps, if one had a sieve.
All of this is evidence of the media/academic cocoon in which so many of these commentators live. It is a world in which it is unimaginable that Wickard v. Filburn may have been wrongly decided, in which there may actually be limits to federal power. It is unimaginable that the great solons on the Hill — Pelosi, Reid, Dodd, Frank — could possibly write a bill which might actually be unconstitutional despite its hundreds of pages that not one person read, and that we couldn’t possibly know what was in it until they passed it.
As a specific example of how completely gobsmacked they were, read “legal analyst” Jeffrey Toobin’s reaction to the hearing:
“This law looks like it’s going to be struck down,” he said. “I’m telling you, all of the predictions including mine that the justices would not have a problem with this law were wrong.”
Shocking, Jeffrey, we know. Just shocking.
Shocking, that is, to anyone completely unfamiliar with the founding document and the intent of the Founders. Sadly, this includes most people in the traditional media, on which too many continue to rely for their analysis. The White House could have avoided, or at least mitigated, this disaster by hiring the smartest opponents of the law to come in and do a moot court exercise against them, in order to prepare their advocate in advance. But, whether due to arrogance, incompetence, or both, it did not.
This week’s events at the Supreme Court should be a torpedo below the waterline to the credibility of those who have been telling us about the Constitution, and those who determine the constitutionality of the swill that is generated in Congress. A media organization that wanted to survive the coming tsunami of fact-checking from those in the know, who with social media are increasingly becoming more known, might want to hire a “red team” to give them the bitter truths they need to survive.
But because both they, and the administration that they protect, remain cocooned, it may take another few hits.