Michael Gaynor
Obamacare, brought to you by President Humpty Dumpty, master of words
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By Michael Gaynor
July 24, 2014

Under the Constitution, the Affordable Care Act, aka Obamacare, is not revisable unilaterally by the Executive Branch of the United States Government and reading "established by a State" to mean "established by a State or, if a State does not establish, established instead by the Federal Government" is as shameless as saying that the individual mandate is not a tax in order to enact it and then arguing that it should be upheld under the Federal Government's taxing power.

Is "established by a State" ambiguous?

Can it reasonably be interpreted to mean "established by the Federal Government"?

Is it unclear that the Federal Government is not a State and a State is not the Federal Government?

The recent 2-1 decision of the United States Court of Appeals for the District of Columbia got it right: "Established by a State" means "established by a State," NOT "established by a State or, if a State does not establish, established instead by the Federal Government."

A rehearing en banc may be granted and the decision may be reversed, because Senate Majority Leader Harry Reid changed the rules of the Senate to add three judges in time to create a "liberal construction" majority on the United States Court of Appeals for the District of Columbia.

If so, it will mean that political partisanship will trump basic legal principles.

In Gibbons v. Ogden, 22 U.S. 1 (1824), the United States Supreme Court endorsed natural construction of the Constitution, since "the enlightened patriots who framed our Constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they said."

In interpreting the power of Congress as to commerce "among the several states," the Supreme Court explained; "The word 'among' means intermingled with. A thing which is among others, is intermingled with them. Commerce among the States, cannot stop at the external boundary line of each State, but may be introduced into the interior....Comprehensive as the word 'among' is, it may very properly be restricted to that commerce which concerns more States than one."

In his dissenting opinion in Ogden v. Saunders, 25 U.S. 317 (1827), Chief Justice John Marshall set forth general principles of constitutional construction, as follows:

"To say that the intention of the instrument must prevail; that this intention must be collected from its words; that its words are to be understood in that sense in which they are generally used by those for whom the instrument was intended; that its provisions are neither to be restricted into insignificance, nor extended to objects not comprehended in them, nor contemplated by its framers; – is to repeat what has been already said more at large, and is all that can be necessary."

President Obama has been described as a constitutional scholar, but he's much more Humpty Dumpty than John Marshall.

Humpty appears in Lewis Carroll's Through the Looking-Glass (1872), where he discusses semantics and pragmatics with Alice.

"I don't know what you mean by 'glory,' " Alice said.

Humpty Dumpty smiled contemptuously. "Of course you don't – till I tell you. I meant 'there's a nice knock-down argument for you!' "

"But 'glory' doesn't mean 'a nice knock-down argument,'" Alice objected.

"When I use a word," Humpty Dumpty said, in rather a scornful tone, "it means just what I choose it to mean – neither more nor less."

"The question is," said Alice, "whether you can make words mean so many different things."

"The question is," said Humpty Dumpty, "which is to be master – that's all."

Alice was too much puzzled to say anything, so after a minute Humpty Dumpty began again. "They've a temper, some of them – particularly verbs, they're the proudest – adjectives you can do anything with, but not verbs – however, I can manage the whole lot! Impenetrability! That's what I say!"

Liversidge v Anderson [1942] AC 206 is a famous English case that concerned civil liberties and the separation of powers. World War II was in process and the majority of the House of Lords opted to torture the English language to protect the nation. .Lord Atkin boldly dissented, insisting that the phrase "reasonable cause" in the statute under consideration indicated that the actions of the Home Secretary were meant to be evaluated by an objective standard and therefore. it would be within the court's purview to determine the reasonableness of the Secretary's actions.

In protesting that the majority put "a strained construction...on words with the effect of giving an uncontrolled power of imprisonment to the minister," Lord Atkin said:

"In England, amidst the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law."

Lord Atkin emphasized the arbitrariness of the majority's essentially rewriting the statute instead of respecting its plain language this way:

"I know of only one authority, which might justify the suggested method of construction. 'When I use a word,' Humpty Dumpty said, in rather a scornful tone, 'it means just what I choose it to mean, neither more nor less.' 'The question is,' said Alice, 'whether you can make words mean so many different things.' 'The question is,' said Humpty Dumpty, 'which is to be the master, that's all.' After all this long discussion, the question is whether the words 'If a man has' can mean 'If a man thinks he has.' I have an opinion that they cannot and the case should be decided accordingly."

Under the Constitution, the Affordable Care Act, aka Obamacare, is not revisable unilaterally by the Executive Branch of the United States Government and reading "established by a State" to mean "established by a State or, if a State does not establish, established instead by the Federal Government" is as shameless as saying that the individual mandate is not a tax in order to enact it and then arguing that it should be upheld under the Federal Government's taxing power.

© Michael Gaynor

 

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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)

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