How to Beat ObamaCare in Court

By John F. Gaski 

Somehow, the leading litigators contesting the Obama healthcare law have missed the elephant in the room.

If we can accept the maxim that war is sometimes too important to be left to the generals, then we may now have a Supreme Court case that is too important to be left to the lawyers. In State of Florida et al. v. U.S. Dept. of Health and Human Services, the main action in which the U.S. Supreme Court is to consider the constitutionality of ObamaCare (more formally known as the Patient Protection and Affordable Care Act or PPACA for short), there is an elephant in the room that somehow the leading litigators contesting the Obama health law have missed.


On the central issue of ObamaCare’s notorious mandate—i.e., whether it is constitutional for the federal government to compel a consumer purchase—everything hinges on the U.S. Constitution’s Commerce Clause. That element of the Constitution gives the federal government authority to regulate interstate commerce or activities affecting it. So far, so reasonable.
But the crux of the issue is whether forcing Americans to buy healthcare is regulation of commerce in the first place. Opponents note that non-purchase of healthcare should not be considered commerce or commerce-related activity. ObamaCare apologists, including some federal judges, make the remarkable claim that a decision not to purchase qualifies as interstate commerce or activity affecting interstate commerce, the same as a decision to purchase or a purchase itself. But even the non-partisan Congressional Research Service, in its 2009 assessment of likely PPACA constitutionality, acknowledged that Commerce Clause-based federal regulatory authority targets genuine activities that affect interstate commerce, not inactivity.

ObamaCare apologists make the remarkable claim that a decision not to purchase qualifies as interstate commerce or activity affecting interstate commerce, the same as a decision to purchase or a purchase itself.

How to resolve this disagreement? The answer is staring us in the face, but has remained obscure to some lawyers and jurists who cannot quite see the forest for the trees. All you really need to know is what the word “commerce” means. To wit, commerce is “exchange of goods, products, or property . . . ; extended trade” (Britannica World Language Dictionary, 1959); “the buying and selling of goods . . .; trade” (Webster’s New World Dictionary, 1964); “the buying and selling of commodities; trade” (The Merriam-Webster Dictionary, 1974); “interchange of goods or commodities, especially on a large scale . . . ; trade; business” (Dictionary.com, 2012). Uniformly, we see, the definition of commerce involves activity, not just a decision to act, and certainly not a decision to not act. The meaning of the concept of commerce presumes action, and always has. Moreover, even casual philology will confirm that the accepted meaning of “commerce” at the time of the Constitution’s drafting referenced activity, not inactivity, at least as much then as it does now (see C. H. Johnson, William & Mary Bill of Rights Journal, October 2004). In the same way, the Commerce Clause has long been construed to apply to action in or affecting commerce, from the 1824 Gibbons v. Ogden Supreme Court case onward.
Here’s what cuts the Gordian knot most decisively: ObamaCare defenders, including some misguided federal and appellate judges, have either advanced or bought the contrived argument that government Commerce Clause authority “includes regulating even mental activity, i.e., decision-making,” in the revealing words of Judge Gladys Kessler in her pro-PPACA decision of a year ago. (Government thought control, anyone? This is what it looks like.) But commerce involves behavior, by definition—i.e., a transaction or at least an attempted transaction—and behavior is not the same as mere “mental activity,” as any behavioral scientist knows. Absence of even the attempt to engage in a transaction therefore means the absence of commerce. So the putative “commerce” of “a choice . . . to . . . not do something” (again quoting Kessler’s contorted effort to define non-purchase of insurance as commerce) actually signifies the absence of behavior or behavioral intention, therefore non-commerce. The ObamaCare law’s mandate thus involves regulation of non-commerce, again self-evidently by definition, and is outside the limits of the Commerce Clause. Likewise, other action “affecting commerce” is ruled out by virtue of inaction. Q.E.D.

Uniformly, we see, the definition of commerce involves activity, not just a decision to act, and certainly not a decision to not act. The meaning of the concept of commerce presumes action, and always has.

Sure, attorneys for the states challenging the ObamaCare mandate, some of them legendary in the legal profession, have verged on this insight. They have highlighted in their court briefs, as I do here, the core issue of the Commerce Clause always having required some kind of activity, as understood in previous cases. Not bad, as far as it goes. Yet the anti-PPACA lawyers need to go a half step further semantically and logically, and exploit the objective fact that, under the very definition of commerce, the basic English-language definition, ObamaCare is inherently unconstitutional because it attempts to regulate non-commerce. That law literally has nothing to do with commerce because it applies to the antithesis of commerce. Only the ObamaCare patrons and Lewis Carroll’s Humpty Dumpty make the bald claim, “When I use a word, it means just what I choose it to mean.” Simply, ObamaCare regulation lies outside the ambit of the Commerce Clause of the U.S. Constitution, not only based on legal tradition and interpretation of the clause, but based on intrinsic etymological reality. This nuance captures the difference from the anti-ObamaCare lawyers’ approach, which has yielded only mixed results so far.
To be sure, other aspects of the PPACA, such as coercion of the states with respect to Medicaid and violation of the federal government’s taxing authority, are also unconstitutional, and we don’t need lawyers to tell us that. We can hope that the lawyers defending our Constitution by fighting ObamaCare at the Supreme Court later this month will argue this point. Unless U.S. law has descended into Alice’s Wonderland and cares nothing about what words and concepts really mean, that tactic should be a winner.
John F. Gaski is associate professor of marketing at Mendoza College of Business, University of Notre Dame. Gaski’s primary research field is the intersection of commerce and public policy. His most recent book is The Language of Branding.