ObamaCare Appellate Judges Playing Semantic Games

A dictionary is all that's necessary for judges to see that "ObamaCare" is unconstitutional; however, dictionaries seem to be in short supply in some courtrooms.  For example, to date four federal appeals courts have scheduled oral arguments challenging the constitutionality of ObamaCare -- the Third Circuit Court, the Fourth, the Sixth, and the Eleventh.  The first of those hearings took place on May 10 in Richmond, VA.  The Obama Administration sent its top appellate lawyer, acting Solicitor General Neal K. Katyal.  He was opposed in the first by Matthew D. Staver, the law school dean at Liberty University in Lynchburg, Va., and in the second by Virginia's state Solicitor General, E. Duncan Getchell, Jr.

The case's central argument is whether ObamaCare can constitutionally mandate virtually every American to have health insurance by 2014, a mandate that forces people to engage in a commercial "activity."  By random selection, three Circuit Court judges were picked to hear the appeal -- two judges seated by President Barack Obama and one seated by former President Bill Clinton.  Judge Diana Gribbon Motz tried to get Staver to define what "activity" means.  Staver explained that it was "something you could see, touch," or "something tangible."  People who don't want to buy health insurance, he argued, are engaged only in "idleness," which is beyond Congress's reach under even the open-ended view with which the courts now view the Fourteenth Amendment.

But Judge Motz shot back that Daniel Webster (1782-1852) spent four days arguing a case on commerce before the Supreme Court but never mentioned the word "activity."  (Of course "activity" wasn't an issue in that nineteenth century case and the Fourteenth Amendment hadn't yet been written.)  Judge Motz also pointed out that the Constitution itself does not mention the word "activity"; as a result, she seemed to think there was no binding definition restricting the power of the federal government to only regulate "activity."

Judge Motz was ignoring the substantiated historical fact that the U.S. Constitution is a list of enumerated powers -- all that isn't mentioned is retained by the states or the people (per the Tenth Amendment).  But this isn't surprising; the basic and honest premise that the federal government is restricted to the powers it has been granted by the Constitution and its amendments is seen as quaint and naïve by today's liberals.  So Judge Motz kept asking Staver what is activity.

Meanwhile, Circuit Judge Andre M. Davis wondered if "a mental process" is "activity."  By doing so he seemed to be implying that a person's specific choice not to buy insurance might be something Congress could regulate; after all the Obama Administration is arguing that everyone will need healthcare sooner or later, so they really can't be inactive.  This liberal belief that even our mental activity can be regulated by the federal government was on display last February when Judge Gladys Kessler of the United States District Court for the District of Columbia ruled that ObamaCare is constitutional.  Judge Kessler wrote:

It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not "acting," especially given the serious economic and health-related consequences to every individual of that choice. Making a choice is an affirmative action, whether one decides to do something or not do something. They are two sides of the same coin. To pretend otherwise is to ignore reality.

The Obama Administration's and Judge Kessler's logic is achieved by reading the Commerce Clause ("The Congress shall have power ... To regulate commerce with foreign nations, and among the several states, and with the Indian tribes. ... ") to be an open-ended and broad power that includes anything that could conceivably affect commerce.  Read the above portion of the again and ask yourself: does an honest reading of this clause really allow the government to mandate that people purchase a product, such as health insurance?  Of course it doesn't.

In fact, this liberal interpretation is scaring conservatives because, according to this view, anytime a person chooses not to act they are still legally "acting."  Therefore any decision not to act that could somehow be construed to affect commerce is an action the government can regulate and even require.  For example, if the federal government decides it's in the best interest of the country for people to buy cars from GM or solar panels from GE, then it can make them do so -- at least inferentially according to Judge Kessler and the Obama Administration.

Like Judge Kessler, the panel of three liberal judges on Fourth Circuit were playing semantics.  Just consider that the definitions of "activity" and "inactivity" can be looked up by any schoolchild.  Dictionary.com defines "inactive" as 1. not active: an inactive volcano; 2. sedentary or passive: an inactive life; 3. sluggish; indolent.  And it defines "activity" as 1. the state or quality of being active: There was not much activity in the stock markettoday. He doesn't have enough physical activity in his life; 2. a specific deed, action, function, or sphere of action: social activities; 3. work, especially in elementary grades at school, that involves direct experience by the student rather than textbook study.

However, instead of simply applying the commonsensical dictionary definition to what "activity" is, these liberal justices blurred the meaning of the words in an attempt to get their way.  After all, any word questioned far enough can become philosophically opaque.  Just consider the definition of the word "chair."  Dictionary.com says its: 1. a seat, especially for one person, usually having four legs for support and a rest for the back and often having rests for the arms; 2. something that serves as a chair or supports like a chair: The two men clasped hands to make a chair for their injured companion; 3. a seat of office or authority.

The definition of the word "chair" seems simple enough at first, but on further analysis, can a chair be a chair if it has three legs?  How about five or six?  How high does a chair have to be to be a chair?  Must a chair have a back?  These questions can go on forever and in the end people will only be able to agree on the more-or-less vague dictionary definition.  By using this same approach with the word "activity," liberal justices are attempting to blur the debate to get their way.

Despite these semantics, shouldn't what is obviously activity (doing something active) and what is certainly inactivity (choosing not to do something active) be left up to its obvious dictionary definition?  Isn't this Clinton-style (remember when former President Bill Clinton questioned what the real definition of the word "is" is) attempt to evade the truth deplorable?

One hopes that the most powerful man in America, Supreme Court Justice Anthony Kennedy (who seems to be the "swing vote" on all big 5-4 decisions these days) understands that ObamaCare's mandate is undoubtedly unconstitutional.

Revised to eliminate erroneous mention of Fourteenth Amendment.

Frank Miniter is the New York Times bestselling author of The Ultimate Man's Survival Guide; his next book, out June 28, is Saving the Bill of Rights.
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