I have expressed my frustration with those who see some salvation in the supposed advancement of constitutional federalism in the ruling by Chief Justice Roberts and the four conservative dissenters that the Commerce and Necessary and Proper Clauses did not justify forcing people into commerce.

Those rulings arguably were not essential to the decision.  Once the Court (the Chief Justice and the four liberal Justices) found that the mandate was justified under the power of Congress to tax, the Court could have stopped right there, declined to address the Commerce and Necessary and Proper Clause arguments, and the result would have been the same.  Indeed, the four liberal Justices in the majority on the tax issue were in the dissent on the other issues.

The Commerce and Necessary and Proper Clause holdings may be deemed limited by some future composition of the Court to the unique facts of the Obamacare mandate, or worse, considered mere dicta, meaning opining by the Court which while informative is not binding on inferior or future Courts because not essential to the ruling.

Ilya Somin makes this point as well:

One possible reason to dismiss the importance of the Court’s treatment of these issues is that it might have been mere dictum. After all, the Court upheld the mandate based on the Tax Clause, so the other two issues were not essential to the outcome.

Somin points to a contrary position taken by his co-blogger, Jonathan Adler, as to whether these rulings were essential and therefore not mere dicta.  Reasonable people may differ.

Expect, as Somin does, that a future Supreme Court may consider itself bound by the Commerce and Necessary and Proper Clause rulings depending upon that Court’s own predisposition on the subject:

Obviously, whether or not Roberts’ analysis will really have an effect on future cases depends in large part on future Supreme Court appointments and the political situation. If, for example, Barack Obama gets reelected in November and replaces one or more conservative Supreme Court justices with liberals, yesterday’s Commerce and Necessary and Proper ruling will likely be ignored or overruled.

The great conservative doctrinal achievement which supposedly is the silver lining in the decision may be illusory.

Obama and Democrats achieved judicial ratification of Obamacare.  Conservatives got a lecture on the Commerce and Necessary and Proper Clauses which, while satisfying, may have been just a lecture.


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