With Republican politicians and conservative activists increasingly claiming in recent days that health care reform is unconstitutional, the Washington Post published a Outlook piece yesterday purporting to examine the question. Under the header "Is health-care reform constitutional," Georgetown law professor Randy Barnett offered a "guide to the possible legal challenges to a comprehensive health-care bill. " Barnett's "guide" must surely hearten Republicans: Again and again, Barnett offered arguments against the bill's constitutionality, while omitting arguments that it is constitutional.
Today, the Post hosted Barnett for an online Q&A about the constitutionality of health care reform.
Opinion columnists, of course, are free to pick and choose facts to make their arguments, within reason. And constitutional law is not arithmetic; Barnett is under no obligation to agree with other lawyers, or even court decisions. But Barnett's piece was not presented to Post readers as an argument; it was presented as a "guide to the possible legal challenges" to health care reform. And he was identified simply as a Georgetown law professor. All of that suggests that Barnett is a neutral observer, and his piece is a dispassionate, balanced assessment of the constitutionality of reform.
In fact, Barnett is a senior fellow at the Cato Institute and the Goldwater Institute, a member of the Federalist Society, and authored a paper for the Heritage Foundation arguing that health care reform is unconstitutional. The Post mentioned none of that.
And, in a reminder of the paper's recent solicitation of a column attacking liberals as condescending, it turns out that Barnett didn't have pitch his column to the Post -- he was "invited" to write it.