Topic: Media Research Center
In a June 5 NewsBusters post, the Media REsearch Center's Tim Graham grumbled that a statement in a courtroom argument by Solicitor General Neal Katyal was "blacked out by all the networks – and all the major newspapers and wire services." But Graham ignores that, in context, it was a hypothetical argument that Katyal made clear he didn't agree with.
The big tell that Graham intends to mislead is that he doesn't cite the original transcript of the argument; instead, he regurgitates what a right-wing blogger wrote. As Graham quoted the Washington Examiner's Philip Klein's portrayal of it, Katyal "told a federal appeals court that Americans who didn't like the individual mandate could always avoid it by choosing to earn less money."
But that's not really what he did. As Media Matters notes, citing the full transcript of the exchange in question:
In the oral arguments debating the merits of the case (the relevant portion begins just before the 50-minute mark), Katyal responds to a question by Circuit Court Judge Jeffrey Sutton regarding whether or not the Supreme Court has ever heard a case similar to this by referencing the 1964 case Heart of Atlanta Motel v. United States. In this case, the motel in question wished to continue to refuse to provide rooms to African Americans. The motel argued that Title II of the Civil Rights Act which prevents discrimination in places of public accommodation, was not a valid exercise of Congress' power under the Commerce Clause.
Katyal argued that the case demonstrated Congress' constitutional ability to "forc[e] people to do something that they wouldn't otherwise do" if it pertained to interstate commerce. Sutton claimed the cases weren't similar because the motel could "exit the business" as an alternative to complying, but that individuals have no similar ability. As a counter-example, Katyal said that if Sutton wanted "to play that game," than it was equally true that under the Affordable Care Act, an individual could chose to make less money as an alternative to complying with the individual mandate, as the hardship exemption in the health care reform bill means that individuals under a specific income threshold are exempt from penalties associated with the individual mandate.
But in a section of the transcript not included by any of the right-wing media, Katyal made crystal clear that he didn't think that in the real world people have the option of making less money. Katyal specifically stated that it was "kind of fanciful" to assume that either group would make that decision (full transcript below). In other words, Katyal was saying motel owners don't really have any option but to comply with the Civil Rights Act of 1964 just like individuals don't have any choice but to comply with the Affordable Care Act.
The headline of Graham's post also falsely portrays Katyal calling this a "neat idea"; in fact, that's what Klein called it.
Graham seems not to understand that the reason this story was ignored was because there was no story, and that to turn it into one, you would have to twist Katyal's words like Graham does.