The Great Catch-All

by Dan Ward

In most situations in which two sides are battling over a contentious issue, you will see widely disparate views and clear opposing messaging.

But in the debate over the Supreme Court’s review of the Patient Protection and Affordable Care Act (otherwise known as Obamacare), we’re seeing something completely different.  Those supporting and opposing the Act are planning to use the exact same message if the Court rules against them.

It’s the greatest “catch-all” argument of our time … judicial activism.

If the Court overturns the Act’s individual mandate, Justices will be accused of judicial activism, creating a new understanding of the Commerce Clause to toss out a perfectly reasonable and Constitutional law.

If they overturn the entire law because of the individual mandate, they will be accused of judicial activism, tossing out many Constitutional provisions of a law just because one element of the law is unconstitutional.

And, if they uphold the law, they will be accused of, you guessed it, judicial activism for expanding the reach of the Commerce Clause to mandate the purchase of a product.

So no matter how they rule, the Justices will be portrayed as activists. Those on the “losing” side of the argument will not have to discuss the accuracy of their views, or re-examine whether they could in any way be wrong.  They can just lay blame with nine people in robes who apparently think they’re a “third branch of government” or something.

For those of us in the communications field, it has made our job much easier.  We now only need to create message points if our companies or clients come out on the winning side of an issue.  If we don’t get our way, only one message will be needed:  “we would have won, if it weren’t for those activist judges/commissioners/committee members/editors/ reporters/voters/(fill-in-the-blank).”

For the victors, the message is similarly easy to develop.  Just praise the people you were prepared to vilify, while ridiculing your opposition for using the same “activist” message that was part of your plan.

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