Score one for legitimate scholarship! Jonathan Adler at the Volokh Conspiracy has a great takedown of one of Politifact’s recent “fact checks.”
Briefly, Politifact claimed that the statement “operating an Obamacare exchange would be illegal under [several states' state law]” is “false, because federal law supersedes state law.” As Adler points out, even though the Constitution makes federal law supersede state law, the Supreme Court has long held that the federal government is forbidden from commandeering noncompliant state law to achieve federal ends. So, the federal government can create the exchanges itself, but it cannot force unwilling states to create them.
At least where I go to law school, this “anti-commandeering principle” is part of the introductory first-year curriculum. Of course, the people at Politifact are not lawyers and can be excused for not understanding it. But that being the case, then why is it that they claim the authority to label the opinions of actual legal scholars as “false?”
What really grinds my gears about the whole fact-checking trend is that it tends to subsume all different types of knowledge into the narrow category of true-false statements, where many of them do not belong. Legal analysis is a good case in point. Part of the reason that lawyers are in such high demand is because law is inherently incomplete and ambiguous; it is impossible to create a legal code that can cover every conceivable type of interpersonal interaction. So a big part of a lawyer’s job is to apply the existing body of general law to the always-differing circumstances of a specific case—an undertaking that in many cases will depend much more on analogical reasoning, common sense, or the logical extension of established principles than it does on the rote recitation of “facts.”
The same is true when we consider what essentially amounts to speculation about the logical outcome of present policies. Take, for instance, Sarah Palin’s “death panel” remark, which Politifact roundly excoriated. If taken as a statement of what’s actually in the healthcare law, then her remark is false. But if we understand it as a prediction of the law’s likely outcome, then the issue is much less clear. It’s certainly no novel conclusion that, as the number of insured people and people eligible for Medicare increases, fewer resources will be available for each person and, absent a relatively free price system to equilibrate supply of medical services with their demand, the government will have to ration services, which in many cases will include rationing life-saving treatments. One might agree or disagree with that argument. But if you disagree, you miss the point if you simply reply, as Politifact did, “Nuh uh, that’s not what the law says!” The Obamacare opponents’ point is that law is powerless to override economic reality and that, sooner or later, reality will sink in. To address that argument requires you to delve into a level of abstract reasoning that Politifact’s silly and superficial “just the facts, ma’am” mentality woefully overlooks.