When the Supreme Court begins to hear oral arguments about the constitutionality of Obamacare in two weeks, Washington will become a hub of protests and counter protests. And what is the administration planning? A prayer vigil. I kid you not.

I am officially amused. I have to confess that I find it interesting that the very administration that has issued an unprecedented challenge to religious freedom, guaranteed by the First Amendment in 1791, through an HHS mandate, is hosting a prayer vigil to pray that the Court doesn’t overturn its signature piece of legislation. (See Yuval Levin’s Pray for the Mandate.)

Whatever the Almighty thinks, the public still isn’t sold on the bill—Fox reports:

Gallup surveyed voters three weeks ago in the dozen swing states that will decide this year’s presidential election and found that the 2010 Democratic health law was still a toxic asset in President Obama’s political portfolio.

In the swing states, 53 percent of registered voters had negative views on the law compared to 38 percent who saw the new slate of regulations, entitlements and welfare benefits positively.

Worse, 72 percent in swing states and 69 percent nationally said the law had so far not affected them. The outlook for the future was grim – 34 percent of swing staters said the legislation would not make much difference and 42 percent said the law would make things worse for their family.

Just 11 percent think the law has helped them already and only 20 percent think that the law will ever do them any good, with identical findings nationally and in swing states. That’s dire.

Meanwhile, lawyers opposing Obamacare might want to look at John F. Gaski’s piece on The American—it could give them some fresh ideas on framing their arguments.

“If we can accept the maxim that war is sometimes too important to be left to the generals,” writes Gaski, “then we may now have a Supreme Court case that is too important to be left to the lawyers.”

Gaski suggests that the leading anti-Obamacare litigators may be missing something.

The key issue before the Supreme Court, as readers of this blog know, is whether the federal government can compel a citizen to buy a product, in this case health insurance. The resolution of this question hinges on the interstate commerce clause, which regulates commercial activity among states.

Those litigating against the constitutionality of Obamacare are claiming that not buying health insurance is a non-activity and therefore should not come under the clause, while supporters of Obamacare see it differently:

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.  

Any definition of commerce includes—well—commerce, the exchange of goods, trade, business, and the like. Commerce, in short, involved behavior, says Gaski, which is not the same as inaction. No action, no commerce:

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. …

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.

This is pretty convincing stuff.

No wonder the administration is resorting to prayer.