The New York Times On Fire!

Not literally, of course. But coverage by New York Times reporters of the health care lawsuits and the Repeal Amendment has been extraordinarily fair and balanced. Here is an excellent story by Kevin Sack today on the Necessary & Proper Clause issues raised by the health care challenge. And here is a straight journalistic account of the Repeal Amendment by Kate Zernike.

Meanwhile, Monday on the editorial page, the New York Times editors opined on the wisdom of the Repeal Amendment:

With public attention focused on taxes, the deficit, gays in the military and nuclear arms reduction, little attention has been paid, so far, to the Tea Party’s most far-reaching move to remake American governance. It is contained within a bill, called the repeal amendment, that was introduced in Congress after the election. The bill won the support of the incoming House majority leader, Eric Cantor, and is supported by legislative leaders in 12 states.

The proposal is sweeping, expressing with bold simplicity the view of the Tea Party and others that the federal government’s influence is far too broad. It would give state legislatures the power to veto any federal law or regulation if two-thirds of the legislatures approved.

The chances of the proposal becoming the Constitution’s 28th Amendment are exceedingly low. But it helps explain further the anger-fueled, myth-based politics of the populist new right. It also highlights the absence of a strong counterforce in American politics.

With the Equal Rights Amendment as a model, it demonstrates the scope of the Tea Party’s ambition to drive politics and law far to the right. The E.R.A. failed to win passage, but it influenced Congress and the courts in equalizing the law’s treatment of gender.

Under the Tea Party proposal, the states would have much greater power than the president to veto federal laws. Because the amendment includes no limit on the time in which states could exercise their veto, it would cast a long shadow over any program under federal law.

Because it focuses on giving states power to veto (e.g., taxes) without their shouldering responsibility for asserting it (trimming appropriations because of lost tax revenue), the unintended consequences would likely be at least as important as the intended.

These flaws make the proposed amendment self-defeating, but they are far less significant than the mistaken vision of federalism on which it rests. Its foundation is that the United States defined in the Constitution are a set of decentralized sovereignties where personal responsibility, private property and a laissez-faire economy should reign. In this vision, the federal government is an intrusive parent.

The error that matters most here is about the Constitution’s history. America’s fundamental law holds competing elements, some constraining the national government, others energizing it. But the government the Constitution shaped was founded to create a sum greater than the parts, to promote economic development that would lift the fortunes of the American people.

In past economic crises, populist fervor has been for expanding the power of the national government to address America’s pressing needs. Pleas for making good the nation’s commitment to equality and welfare have been as loud as those for liberty. Now the many who are struggling have no progressive champion. The left have ceded the field to the Tea Party and, in doing so, allowed it to make history. It is building political power by selling the promise of a return to a mythic past.

This last part is telling, either because it is true, or because the Times editors believe it to be true. Regardless, it seems significant that the Times editorial board decided to take on this proposal. They must fear it is gaining ground.

UPDATE: In my listing of balanced reporting from the New York Times, I neglected to mention this piece by John Schwartz: The Supreme Court and Obama’s Health Care Law. This story was particularly noteworthy for the pains it took to debunk the all-too-tempting theme that the differing outcomes of these lawsuits can be explain on strictly partisan lines:

So far in three lawsuits against the plan, two federal judges appointed by Democrats have upheld the law; one Republican-appointed judge has declared an important part of it unconstitutional. Use party as your measure, send the cases up the appeals ladder, and you quickly get to a 5-4 decision at the Supreme Court: the justices appointed by Republican presidents will vote to strike down the law. Game over, thanks for playing.

But the votes of the Supreme Court are not that easy to divine, and while political considerations can creep into any judge’s views, deeper factors are at play . . .

Exactly what these factors are will of course be the subject of disagreement. In my view, judicial philosophy looms large and, while this correlates with the party of the President who may nominate a judge, it is not the same thing as reaching judicial decisions on policy or party grounds.

But what is truly remarkable is that all these articles from the Times are the product of not one but several reporters who are closely following this unfolding story. So we can look forward to continuing coverage that will challenge any partisan slant that Times readers may be getting from other sources.

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