Full Disclosure: I am not a lawyer nor a trained legal scholar.
District Court Judge George Caram Steeh, a Clinton appointee, issued a ruling yesterday regarding Obamacare in Thomas More Law Center, et al. v. Obama, et al. (TMLC). Reading through his “judicial” opinion, I got the sense that the most pertinent parts were written by a Democratic political operative, not a judge; it’s the kind of work we should expect from the newly appointed Supreme Court Justice Elena Kagan, who refused to answer whether Congress had the power under the Constitution to control what Americans eat (more on this later). While it may look like I’m engaging in hyperbole, I’m not; Steeh’s ruling asserts that Americans are nothing more than serfs that can be controlled by the federal government via the Commerce Clause. Allow me to explain.
The key passage in the ruling that proves my point can be found on page 17 [emphasis from original]:
The plaintiffs have not opted out of the health care services market because, as living, breathing beings, who do not oppose medical services on religious grounds, they cannot opt out of this market…
The Supreme Court has consistently rejected claims that individuals who choose not to engage in commerce thereby place themselves beyond the reach of the Commerce Clause. See, e.g., Raich, 545 U.S. at 30 (rejecting the argument that plaintiffs’ homegrown marijuana was “entirely separated from the market”); Wickard, 317 U.S. at 127, 128 (home-grown wheat “competes with wheat in commerce” and “may forestall resort to the market”); Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964) (Commerce Clause allows Congress to regulate decisions not to engage in transactions with persons with whom plaintiff did not wish to deal). Similarly, plaintiffs in this case are participants in the health care services market. They are not outside the market. While plaintiffs describe the Commerce Clause power as reaching economic activity, the government’s characterization of the Commerce Clause reaching economic decisions is more accurate.
You see what Steeh did here? He invented a brand new definition for what commerce is, or, more accurately, he regurgitated the definition Democrats want to use for what commerce is. Combine the first sentence of the above quote with the last sentence and you get this:
The plaintiffs have not opted out of the health care services market because, as living, breathing beings, who do not oppose medical services on religious grounds, they cannot opt out of this market…While plaintiffs describe the Commerce Clause power as reaching economic activity, the government’s characterization of the Commerce Clause reaching economic decisions is more accurate.
Steeh is saying that because we are living, breathing Americans, any activity we do or not do is considered commerce that can be used by Congress to order us around, to require all of us to buy health insurance or be punished. This reminds me of the infamously egregious and unconstitutional Kelo ruling where the 4 leftists (Stevens, who wrote the opinion, Breyer, Ginsburg, and Souter) and the squish (Kennedy, who wrote a concurring opinion) of the Supreme Court ridiculously decided that government taking the property of a private owner and giving it to another private party, on the expectation that the second private party may provide government with more tax revenue, met the definition of “public use” in the Takings Clause of the 5th Amendment; naturally, the Kelo majority had to redefine the meaning of “public use” in order to fit the ruling. Here’s something more maddening about yesterday’s ruling and Kelo. Writing for the majority in Kelo, Stevens used an estimate from a “study” provided to the New London city government that guessed how much tax revenue the city to justify his ruling, just as Steeh used the government’s arguments about how all the American people need to be financially involved in Obamacare to get all the wondrous “benefits” that will come from it; in effect, the Kelo majority and Steeh in the Obamacare case used political talking points as evidence instead of the Constitution and the facts. Since Kelo, Pfizer, the company that insisted the New London city government give them Kelo’s private property, backed out of their deal, leaving New London with an empty lot and no revenue from either party. What does that say about what’s going to happen with Obamacare if this ruling, and others making their way through the courts, say it’s Constitutional?
Look at the cases Steeh uses to justify his opinion. One of them actually had to do with a commercial enterprise (Heart of Atlanta Motel), something that has nothing to do with a customer not wanting to purchase a good or service, which is what Obamacare is all about. The other two cases, Raich and Wickard, both of which are hallmarks of judicial activism and overreach, are also irrelevant to the case Steeh is ruling on; in both Raich and Wickard, the affected parties were actually doing something, Raich growing marijuana and Wickard growing wheat. Repeating what I said earlier, Steeh in TMLC is saying that because we exist, the Commerce Clause gives Congress the power to tell us where to spend our money.
Steeh tries to claim that precedent guides his ruling. However, he undercuts his own argument on page 15:
The Supreme Court has always required an economic or commercial component in order to uphold an act under the Commerce Clause. The Court has never needed to address the activity/inactivity distinction advanced by plaintiffs because in every Commerce Clause case presented thus far, there has been some sort of activity. In this regard, the Health Care Reform Act arguably presents an issue of first impression.
Even with this, Steeh determines that by just being alive, this is somehow a commercial activity governed by the Commerce Clause.
The ruling noted this from the plaintiffs:
Plaintiffs contend that the court must engage in metaphysical gymnastics in order to find that “the act not to purchase insurance” is an affirmative economic activity, specifically “a choice regarding the method of payment.”
And yet, that is exactly what Steeh does, although he tries to hide it (using the Lopez ruling, which found that possessing a gun in a school zone is not an economic activity; DUH!!!). It is simply amazing how a judge or Justice can take a document like the Constitution, a document that was specifically designed to restrict the power of the federal government and leaving that power to the people, get deliberately twisted into something that diminishes the individual rights of the people, those pre-ordained rights which are supposed to be guaranteed by the Constitution, and expanding the federal government’s authority. Wickard, Raich, and Kelo (along with others), and now TMLC (if it is upheld, which, hopefully, is far from certain) are wonderful examples of how unelected, black-robed tyrants use anything but the Constitution and the real definitions of words to determine what is in the Constitution.
Remember when Elena Kagan, during her confirmation hearing, was asked by the great Sen. Tom Coburn (R-OK) if Congress had the authority under the Constitution to ban certain foods? She hemmed and hawed trying not to actually answer the question. Obama-supporting hack Greg Sargent claims that she did [emphasis from original]:
Turns out, though, that Kagan did answer the question a bit later in the exchange: She suggested that this is a flawed line of inquiry because the commerce clause regulates economic activity, and not personal choices like one’s dietary preferences.
“I think that there are limits on the commerce clause,” Kagan said, adding approvingly that the court has in the past articulated limits that are “primarily about non-economic activity and Congress not being able to regulate non-economic activity.”
Sargent then ended his piece with this:
But of course Coburn’s question…isn’t really designed to illuminate this argument or even to elicit an answer from Kagan. It’s meant to dumb down the discussion to the point where an answer is pretty much impossible.
Granted, what was stated by Kagan or Sargent was several months ago, long before Steeh’s TMLC ruling came out. Yet, Kagan’s point about Congress not being able to regulate non-economic activity is completely thrown out with Steeh’s ruling who says that the Commerce Clause covers economic decisions, which would include non-economic activity. Considering it was Kagan’s previous job as Solicitor General to argue for the government, I have no doubt that she provided input, prior to being nominated to the Supreme Court, on how to defend this for the government. If TMLC gets to the Supreme Court, Kagan will have to recuse herself from any deliberation they may take.
Elections have consequences. It was the election of Bill Clinton as President and Senate Republicans not willing to be tougher on his judicial appointments that allowed Steeh to become a federal judge. It was the election of Barack Obama as President and a Democratic majority in Congress that allowed for both the passage of Obamacare and Elena Kagan being a Supreme Court Justice. Every member that voted for Obamacare needs to be thrown out of office.