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What if that huge conservative doctrinal achievement was mere dicta?

What if that huge conservative doctrinal achievement was mere dicta?

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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LukeHandCool | June 29, 2012 at 4:46 pm

“… 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,…”

As an observer of life (not necessarily a mere spectator) my legal layman’s very strong gut instinct is that it very likely all hinges on the “future composition of the Court.”

Another Obama term with maybe another Sotomayor and another Kagan added to the Court really gets my gut instinct’s gut instinct going.

    LukeHandCool in reply to LukeHandCool. | June 29, 2012 at 5:07 pm

    Revolt of the legal laymen.

    We might not have any legal training, but hearing arguments from both sides (it helped v. it hurt the conservative cause) the jury is saying we are convinced this ruling hurts the conservative cause. And we don’t like it.

    H/T Instapundit:

    “Voters Dislike Supreme Court’s ObamaCare Ruling.”

    Take away lesson: Elections have consequences. Every single federal election must see the Tea Party in force supporting ONLY those candidates who will mean in the heart their Article VI oath to “this [meaning the written] Constitution.” Heading bad legislation off at the pass is a lot better than hopin’ ‘n prayin’ that some federal court will set matters straight. Since presidents appoint/nominate all Article III judges having the right guy in the WH is ESSENTIAL. Obama ain’t the right guy by a looooooooooong shot.

TrooperJohnSmith | June 29, 2012 at 4:48 pm

By way of my imperfect understanding, I assumed that the mandate ran afoul of the Commerce Clause but was saved by a de facto application of the power to tax. Therefore, it was deemed a “re-write” by the dissenters, the implication being that the majority found ‘no’ on commerce and ‘yes’ on tax.

I guess that’s why you teach law, and I teach my dog to eat, sleep and poop. 🙂

The amazing thing is that when Democrats “lose,” they still get much of what they want because the media intimidates people into giving it to them.

When Republicans “lose,” they get much of what they want because many of them are Democrat-lite.

When conservatives (as opposed to Republicans) lose, the losses are always deeper and more far-reaching, in really strange and treacherous ways, than anyone could have possibly expected.

    ThomasD in reply to CalMark. | June 30, 2012 at 12:31 pm

    You need to see passed the Democrat/Republican labels and start to recognize that the vast majority of all of them are statists. Anything that make them more powerful, or more the center of attention is exactly what they want, no matter what they say otherwise.

Being completely honest, I starting to believe everyone in the USSA central committee, is mere dickta.

Oh gosh, yours didn’t have the k. Need new lenses I guess.


See, told ya..

It is dicta.

All that matters is that ACA–and all it’s sordid details–are Constitutional

They could have opined that the reason is “because we like cheeseburgers”, and it wouldn’t matter-

What are you going to do about it? Take them to court?

    ThomasD in reply to Browndog. | June 30, 2012 at 1:27 pm

    It’s worse than that, because the reasoning that was used to allow the statute to stand clearly establishes that Congress has the authority to tax people solely on the basis of their personal behavior, and that such tax need not be apportioned.

    The only reason it does not afford the federal government plenary police powers is our (current) lack of debtors prisons. But some Robertsesque reworking of bankruptcy statutes could easily rectify that oversight.

Who the hell cares about the commerce clause now! All anyone has to do now is pass anything as a tax!

DINORightMarie | June 29, 2012 at 5:21 pm

Question: does this deeming that PPACA is Constitutional because the fines/penalties are a “tax” on INactivity (i.e. levied IF insurance is NOT purchased), does that open a window to re-try this on those terms?

In other words, since this is now to be considered a tax, can a suit/case be brought saying this is unconstitutional because the tax is on INACTIVITY, and is not allowed under any of the tax clauses/amendment(s)?

Just wondering. I am angry and sick that CJ Roberts did this, and said that it is NOT a tax for the “ripeness” test…..but seems to open a door or window to bring this again based on the unconstitutionality of the tax itself.

(Of course, if Romney and a majority Republican/Conservative Congress repeal the monstrosity PPACA (aka ObamaCare), then it would be gone…..but that leaves the stench of this precedent, or is it dicta….?) 🙂

    ThomasD in reply to DINORightMarie. | June 30, 2012 at 2:52 pm

    I’d bet money that the outcome of such an attempt would either be an ‘asked and answered’ from SCOTUS, or a simple vote not to take up the case.

    Either way the law stands and we all lose.

    Subotai Bahadur in reply to DINORightMarie. | June 30, 2012 at 10:14 pm

    DINORightMarie on June 29, 2012 at 5:21 pm

    With all due respect, why in the name of all that is Holy would you want to bring this back to the courts? We have already had an object lesson in the fact that raising Constitutional issues is not only a sure loss, but means that they will find some other form of tyranny to impose.

    The standard used to be that if a law was unconstitutional under part of the Constitution, it was tossed out. Now if it is unconstitutional under one part, that part of the Constitution will be ignored and it will be twisted so that it can be deemed constitutional under another part, which sanctifies the whole thing including the unconstitutional part. The legal system has neither interest nor desire to rule constitutionally. They want to rule to please whichever power group is in favor at the moment. Accepting their legitimacy only encourages them.

    Subotai Bahadur

DINORightMarie | June 29, 2012 at 5:22 pm

Also, at the end of Rush’s program today, a caller made this very same point; Rush thought his point was a good one.

It might be interesting, and add to your post, if you can link to that segment…..if it becomes available! 😀

jimzinsocal | June 29, 2012 at 5:27 pm

I would think if the “mandate” had been struck down..then the reasoning would apply for future. How is what Roberts had to say about the Commerce Clause different force than the dissents?

    Browndog in reply to jimzinsocal. | June 29, 2012 at 5:38 pm


    Roberts had his opinion-

    Ginsberg had hers.

    The commerce clause stands today as distorted case law in mine.

Henry Hawkins | June 29, 2012 at 5:30 pm

Είναι όλα ελληνική μου!

Nothis decision is horrible in every sense of the word. Now they can pass anything calling it a penalty or a tax and it does not matter how its structured or whats its for — ITS CONSTITUTIONAL. They can pass a bill and make slaves of any of us at will.

This decision is outrageous and is grounds for reconstituting the court by any means necessary. If we have to dissolve the court by impeaching every insane justice or appointing another 40 die hard conservatives, whatever it takes.

9thDistrictNeighbor | June 29, 2012 at 6:00 pm

Oh the libs find emanations and penumbras precedent for 45 years…they don’t care about conservative dissents. They’ll do whatever is necessary to achieve what they think is proper; and commerce is something useful only to fund redistribution.

Besides, we have so much to which to look forward. Nancy Pelosi said we have to pass it to see what’s in it…like a toddler looking into the toilet. Now we can live what is in it.

I have a severe bias, but it is based in a lifetime of watching Leftists bully weak and clueless conservatives.

John Roberts seems to represent to me the central problem of our time: the average leading establishment conservative’s uncomprehension of the Left in our society. But that is only one part of it. The other part, also perfectly embodied in John Roberts, is the deep fear of establishment elitist Progressive media opinion. For I believe that John Roberts (this is my adamant bias) was driven by a need to legitimize himself through this opinion, or equally by a fear of elitist delegitimization, and thus he exposed himself.

Nothing has done more damage to America than the type of “accomplished” establishment conservative man represented by John Roberts. Such men are perhaps the greatest generational moral failing in our history. For the Left has risen under their watch. I lump George Bush into this group. It is because of the John Roberts and George Bushes of the world (and they are everywhere, really, or at least firmly fixed everywhere in leadership in our country across the spectrum of vocations) that America has suffered and fallen into the thrall of political correctness, and into decline resulting from deluded accommodation with enemies they cannot recognize. For in what sane and sensible universe could a conservative Chief Justice EVER vote this way.

John Roberts is not a bad man. He is just another weak “conservative” enabler of the Left, without which the Left would never have risen to power and could not exist. He is being hailed today as a hero, and he understands this. For those are the opinions he cares about, that is the world he serves.

    Browndog in reply to raven. | June 29, 2012 at 6:23 pm

    All I know is liberals/progressives are highly proficient in the art of deceit, and their imaginations know no bounds.

    Roberts was both deceitful, and highly imaginative….in my opinion.

    just sayin’

      OcTEApi in reply to Browndog. | June 29, 2012 at 9:29 pm

      The Constitution died:
      I’m always amazed at the bewildering ability to present pervasive and compelling arguments that its ultimately Bush’s fault.

      OcTEApi in reply to Browndog. | June 30, 2012 at 6:55 am

      Let’s be clear, am I imagining Chief Justice Robert’s opinion that the individual mandate was not a regulation of interstate commerce.

      Did his court not give us Citizen’s United?
      Did his court not effectively outlaw voluntary efforts by public schools to racially integrate?
      Did his court not strike down a gun control law as a violation of the Second Amendment?
      Did his court not curtail the reach of environmental protections?
      Did his court not uphold the federal ban on partial birth abortion?

      What Roberts did by relegating the Obamacare law back under the purview of We The People and its duly elected Congress may not be bold, because that’s where the peoples business belongs in the first place, but instead he put the bold focus toward a tax, a highly deceitful,imaginative and shifty tax.

    Browndog in reply to jimzinsocal. | June 29, 2012 at 6:35 pm

    Yep, that does the trick.

    I like this:

    In fact, Justice Thomas, in his separate dissenting opinion, wrote:

    “The joint dissent and THE CHIEF JUSTICE cor­rectly apply our precedents to conclude that the Individual Mandate is beyond the power granted to Congress under the Commerce Clause and the Necessary and Proper Clause.”

    Notice he didn’t say–

    In fact, Justice Thomas, in his separate dissenting opinion, wrote:

    “The joint dissent and THE CHIEF JUSTICE cor­rectly apply the Constitution to conclude that the Individual Mandate is beyond the power granted to Congress under the Commerce Clause and the Necessary and Proper Clause.”

    Have I mentioned lately how much I loathe “precedent”?

MaggotAtBroadAndWall | June 29, 2012 at 6:38 pm

Here’s one of Roberts’ former clerks explaining the decision and why he thinks Roberts pronouncement on the Commerce Clause will act as precedent. Not sure I buy it. I think judges and justices have a way of either ignoring relevant precedent or using irrelevant precedent whenever it helps them get to the result they want based on their judicial philosophy.

Here is the way I see it: Obama, and his fellow statists in Congress, decided that it was for the “common” good for everyone to have health insurance. So they, with the help of Roberts, will now be able for force you to buy a product you may not want because it serves the “common” good and if you don’t buy that product, you will be taxed for your refusal to engage in the free market.

How does that work? Can the government now force me to buy a General Motors/Chrysler product because it would serve the “common” good by helping those companies repay their debt to the taxpayers? What if I want to buy a Ford product when Ford doesn’t owe the taxpayers money? Will I be allowed to buy a Ford but only after I pay a fine (tax) for not engaging in the free market as mandated by the federal government?

If Congress has the power to force us into an activity we do not want to participate in, by taxing us for that inactivity, there are no limits to what Congress can do to us by labeling the punishment a tax.

I don’t see how anyone can find joy in Mudville tonight. Chief Justice John Roberts just did what Woodrow Wilson could not do; make the U.S. Constitution meaningless.

sennacherib | June 29, 2012 at 7:07 pm

Well I’m not competent enough to argue with any of this, but I will say people and professor let’s cut the doom and gloom and fight. We have tons of ways and resources to battle these people, use them. Remember Prohibition? It was repealed and it was an amendment. Also be happy warriors it’s not like the Mongols are in the burbs killing every living thing and headed our way.

    Flyover Conservative in reply to sennacherib. | June 29, 2012 at 7:27 pm

    Bottom line is it doesn’t matter what the court did. If we can’t win the battle of ideas with a majority of the public but have to depend on five justices shame on us. We have to do the heavy lifting, win at the ballot box and do something about it. If we don’t the court is nothing but a rear guard action of a retreat from the founding fathers ideas.

    retire05 in reply to sennacherib. | June 29, 2012 at 7:39 pm

    Remember Prohibition? Yeah, sure do; the crime, the murders, the gang wars, bathtub gin, speakeasys, dead/dirty cops, blood running in the streets.

    So what’s not to look forward to with another wrongheaded law?

I know I feel dicta’d.

casualobserver | June 29, 2012 at 8:32 pm

Not being an attorney and still hearing the administration’s talking heads and other Dems saying things like, “Roberts can call it whatever he wants, it is still only a penalty,” keeps me confused. Even if the opinion might have made statements that will be regarded as pure dictum, doesn’t the ruling still change both the way the “penalty” must be enforced and the way it will be handled in the future regarding the law? As a tax, yes?

I also read somewhere else than I cannot find again a liberal voice saying that the other 4 majority judges did not agree with Roberts on the limitations on the Commerce Clause, so this written opinion is actually toothless. Is that true also?

The sole reason that the mandate had rose to the Supreme Court was the precedent that the Commerce and Necessary and Proper Clauses and the ability of Congress to regulate commerce has been considered plenary almost since our nations founding.
Gibbons v. Ogden
“This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution.”

Per the Courts Opinion

Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers. The individual mandate thus cannot be sustained under Congress’s power to “regulate Commerce.”

Now there is new limit on the Commerce Clause.



largely concealed by the opinion’s ultimate judgment

obiter dictum

Bush Broccoli Tax ~ IDK

what drives me crazy, as a layman, is that the government forcing you to do something and then taxing you for it is already common. How is it that THIS time we say too much? Social Security and Medicare are two such examples.

Robert did a judo flip. He used the eagerness and arrogance against the Left here. I read one portion of his ruling where he (and the conservatives agreed} that the government cannot make you engage in commerce. Also, they have to tax you, not mandate you.

It kicks the 500 billion dollar cra*sandwich back to the House where it belongs to force them to create a taxing authority. In an election year! Dems wanted to hide from that responsibility by making HHS have a right to mandate. Now they will be beat about the head and shoulders with it, if the Republicans can find their will to do so.

Remember Roberts POV here. He believes we have the right to elect idiots. They have the right to pass stupid laws. Those laws are constitutional UNTIL they violate the rights of a citizen. The first person who gets “fined” or “taxed” for not getting insurance will run right down and file a lawsuit. Then it will follow the Citizen united process.

The Congress can pass a law saying the moon is made of green cheese. No harm is done. But if they tax a person who disagrees with that assessment, harm is done.

It isn’t his job to correct stupid, just point out who did it.

Dicta. What I said. Going out drinking again.

“Obama and Democrats achieved judicial ratification of Obamacare.”


Obamacare is indeed unconstitutional, specifically the statute which Obamacare sought to coerce the states into a massive Medicaid expansion.

    OcTEApi in reply to OcTEApi. | June 29, 2012 at 11:07 pm

    Some background

    A lot of attention has been focused on the “individual mandate”, that without it much of Obamacare would become unworkable.
    Roberts’ ruling on Medicaid rendering the ability to coerce states into the massive medicaid expansion unconstitutional shifts coverage from medicaid to the new health care exchanges. As more people are put into the exchanges the costs rise dramatically over ten years.
    Obamacare has a limit to spending on health care exchange credits as a percentage of GDP that kicks-in in 2018.

    So in 2019 they will either have to reduce these subsidies low-income individuals (which represents an increase in their co-tax) or waive the fiscal restraints on Obamacare.

    In other words Roberts ruling sets in motion of chain of events that unleashes Obamacare’s own budget busting demise.
    And it will come sooner than the six years funding by various taxes previously built into Obamacare.

Henry Hawkins | June 29, 2012 at 10:20 pm

The basal difference:

Liberals believe the ends justify the means, while conservatives value ethics in both the goals *and* the process by which you achieve them. In a political process that no longer punishes deceit, the ethical lose; nice guys finish last.

conservative not republican | June 30, 2012 at 12:29 am

There was no doctrinal victory. What we learned is that John roberts can be rolled by the liberals and th MSM. The question is what he will cave on next. Now that they his weakness they will be after him in every big case.

Roberts has mixed up his personal reputation with the reputation of the Court. The result will be that he will damage both.

BannedbytheGuardian | June 30, 2012 at 1:43 am

The bottom line is still about $$$$.

However way you structure it Heath care must be paid for. Currently the US spends 17% of GDP compared to the west nations of around 9%.

You need to get it down to 9% & that wiil bring pain. Unless treatments can be reduced in price dramatically -& they have been in many cases – there are still many older & terminally ill people using up valuable resources to hang in there a little longer. For example the new British Prostate drug that kept the Libyan Bomber alive 3 years costs $80,000 per year plus.

An immediate cost eg a heart valve stent is expensive but perhaps cheaper in the long term. Everybody accepting their time is up & dying happily would solve the problem but it is not going to happen .

Before Calmark criticizes my input – America owes the world quite a bit of dosh. Getting the health care to 9% will free up enough $$$ to pay down some of that debt so that you only owe domestic bondholders etc. I figure $4 trillion is needed & this would take one generation.

There is no way out.

The elected Congress passed this monstrosity, an elected President signed it. Now voters get to decide whether to implement or repeal it in November.

I don’t believe for a minute that liberals on the court will be dissuaded from expanding the Commerce Clause down the line because of the Robert’s decision. They will find a way to ignore it to rule as they wish. We are talking about people who have cited FOREIGN LAW to justify their ridiculous decisions.

I just fear that Republicans will get wrapped up in the recriminations and acrimony and forget to work to get more of us elected in November. That their spirit is so deflated from this, that they can only look backward.

    jimzinsocal in reply to PhillyGuy. | June 30, 2012 at 11:31 am

    I agree and mentioned that in a thread at NRO. All the granular stuff is a great debate among legal folks but it wont change things for November. How many times have we seen republicans lose on an issue because they got too wrapped in ideology to the point voters eyes roll.
    A perfect example is Immigration reform.
    While our Senators fiddle with fine tuning and tactics…Obama basically walks away with the perception that he is doing something about the issue.
    That he won the talking point is impossible to deny. He even got the added bonus of basically taking the economy off the news focus.
    Id hate to see the same thing happen with Obamacare.
    Rather than endless legal analysis…we need a simple and effective way to explain what happened in the court that Johnq Averageamerican understands and can see some Republican position/platform that makes better sense to him.
    Sadly, this is exactly the sort of thing Newt could have done far better than Romney….given Romney’s unique relationship with a government healthcare system.
    If all Romney can offer as a plan is repeal of Obamacare? Its not going to work. Thats something Congress can do now without Romney. Dump the mandate via Congress.
    In other words…Romney shouldnt run on whats wrong with Obamacare but rather a solid alternative that seems to solve healthcare issues without government intrusion into our lives and the lives of busnisses everywhere.
    Lets not repeat the mistake democrats made around the Budget mess by simply saying (as they did with Republican effort) all we know is we dont like theirs.
    So yeah…understanding what happened in court is interesting it wont win an election unless we fashion a plan…an alternative that sells well to voters.

The remedy for tax is Tea.