Wednesday, February 23, 2011

the dog that didn't bark

three federal courts have now upheld the affordable care act, two federal courts have struck it down. it's interesting how only the ones ruling against the health reform law get a lot of media attention.

previously, when the score was 2 to 2, i attributed the much greater attention paid to the two anti-ACA decisions to the timing of the decisions and the bias in reporting towards a change in the status quo as opposed to upholding the status quo. the two decisions upholding the ACA came first. while that is news, it's not a big deal for the courts to find an act of congress to be constitutional. so at the time they came out they were not contradicting any other court opinion about the law. but then the two subsequent rulings the other way (with the first of the two striking down only the individual mandate and the second ruling against the entire ACA) could be viewed as bigger news because they were rulings that (assuming they prevailed in the end) would change the status quo and because they came to a different conclusion than the earlier rulings.

but by that logic this fifth ruling should also be really newsworthy because it contradicts the last two rulings against the ACA and because (if this fifth decision is the one that ultimately prevails) it would change the status quo away from the now viewed as more viable unconstitutional argument. and yet, i'm not seeing a big splash. the article i linked to above appears on page A14 of the print edition of the NYT. by comparison, the last two rulings against the ACA both appeared on the front page (and the first two cases upholding the act appeared on pages A15 and A25).

the tally among federal court rulings now stands at 3-2 in favor of obama's health reform act and i bet a substantial portion of the country thinks that courts have only found it to be unconstitutional.