Welcome to the Fact Free Zone

I'm constantly amazed by the complete and total absence of any editorial standards at the Wall Street Journal. It's not just that they publish crazy reactionary nonsense on a daily basis, it's that even within that nonsense, there is no attempt whatsoever to even get the relatively insignificant facts right. Does the paper even employ editors?

Orin Kerr points mockingly at this op-ed the other day from Fox News contributor Andrew Napolitano, and to this passage in particular:

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.

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?

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. The reality is that if Napolitano's interpretation of Lopez was correct, virtually the entire post World War II regulatory state would be unconstitutional. If he was correct, Medicare and Medicaid would be unconstitutional. Needless to say, the Supreme Court never intended to suggest anything of the sort in Lopez.

The suggestion that the health care reforms currently being considered are unconstitutional is laughable. Maybe in some parallel universe that might be true. But not in this one.

UPDATE: To be clear, I realize that the editorial page is distinct from the news division at the Wall Street Journal. I'm sure the news division actually employs editors and fact-checkers. But still, the anything-goes contempt for facts on display daily on the editorial page diminishes the entire brand.