Supreme Court

Five Justices Rejected the Government's Commerce Clause Theory. Does that Count as a Legal Precedent?


While Chief Justice John Roberts sided with the Supreme Court's liberals today in order to uphold ObamaCare's health insurance mandate under Congress' power to "lay and collect Taxes," Roberts also sided with the Court's conservatives in rejecting the Obama administration's sweeping argument that the individual mandate was permitted under Congress' power "to regulate commerce…among the several states."

Does the Commerce Clause portion of today's ruling count as a binding precedent? It might. As Georgetown law professor Lawrence Solum points out at his Legal Theory Blog, the part of Roberts' opinion which describes why the individual mandate may be described as a tax "suggests that this characterization was influence by the fact that this characterization was necessary to uphold the mandate (and hence perhaps the entire ACA as constitutional)." In other words, when federal judges turn to Roberts' ruling in the future, they may be required to take his description of the Commerce Clause and its limits into account.

As textual evidence for this reading, Solum points to the following passage from Roberts, which "might be read as signalling that the Commerce Clause discussion was necessary to the logic of the opinion." Here's Roberts:

Because the Commerce Clause does not support the individual mandate, it is necessary to turn to the Government's second argument:  that the mandate may be upheld as within Congress's enumerated power to "lay and collect Taxes.

That does sound like Roberts' Tax Clause argument cannot be divorced from his Commerce Clause argument. I'd also add that Roberts makes the point even more explicit when responding to Justice Ruth Bader Ginsburg's sharp attacks on his "crabbed reading" of the commerce power:

JUSTICE GINSBURG questions the necessity of rejecting the Government's commerce power argument, given that §5000A can be upheld under the taxing power. But the statute reads more naturally as a command to buy insurance than as a tax, and I would uphold it as a command if the Constitution allowed it.  It is only because the Commerce Clause does not authorize such a command that it is necessary to reach the taxing power question. And it is only because we have a duty to construe a statute to save it, if fairly possible, that §5000A can be interpreted as a tax.  Without deciding the Commerce Clause question, I would find no basis to adopt such a saving construction.

So the upshot is that Roberts' powerful dismissal of the government's unprecedented Commerce Clause theory may end up binding lower court judges and serving as precedent for future Supreme Court cases.

NEXT: Why the GOP Will Wish It Could Lead with Ron Paul After This ObamaCare Ruling

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  1. On the plus side, this should make Civics classes across the country much easier.

    Kids! Recite the Constitution!

    Kids: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States, but all Duties, Imposts and Excises shall be uniform throughout the United States! The Congress shall have the power to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes! The Congress shall have Power – To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof!

    1. why don’t we just shorten that to “The Congress shall have the power to do whatever it wants. Fuck you, that’s why.”

    2. What? They have classes on Civics?

      Those cars are so lame

  2. The Federalist Society had a teleconference on the opinion this afternoon with David Rivkin, one of the lead lawyers on the anti-Obamacare side. He had the same view — that the Commerce Clause holding is binding precedent.

  3. Whipty friggin do. So congress can’t lean on the commerce clause to impose their will on society. Instead, they can lean on their tax and spend power, and impose a fine… I mean tax, on anyone who doesn’t obey their federal overlords.

  4. Maybe. I don’t see it. The result didn’t turn on the commerce clause at all, so I think all the commerce clause blah blah is dicta.

    The opinion functionally reads as though they never reached the commerce clause issues. It could have been written “because the mandate is Constitutional under Congress’s taxing authority, we do not need to consider the commerce clause arguments.”

    Really, it’s up to the courts to decide whether to treat it as binding. I’m not optimistic. It’s not in a majority opinion joined by all 5 Justices, it’s not necessary to the result, and it marks a departure from previous cases that are binding.

    1. “It’s not in a majority opinion joined by all 5 Justices…”

      RC, this was the opinion written by the majority. Am I missing something? I need desperately for there to be something redeeming in this decision.

      1. Justices often write about things which are immaterial to a decision. Things which may be interpreted as precedent. People dismiss as dicta that which they can reasonably (supposedly) read as non-precedential.

        In this case, the Ginsburg concurrence didn’t agree with Roberts that the Commerce Clause business doesn’t work. So there was no majority opinion saying its constitutionality can be justified under Commerce Clause grounds. There was only a majority saying its constitutionality is justified under Tax and Spend grounds.

        I hate to say it, but the Commerce Clause stuff is probably not precedential.

        1. Well, thanks for ruining a perfectly good gin and tonic on a hot thursday evening.


        2. Fuck!

          So Roberts is not the evil mastermind that NYT is making him out to be?

  5. Wasn’t Roberts idea that from now on when Congress wants to regulate inactivity, they will have to present it as a tax, which the people are unlikely to accept? Also this harms Democrats’ credibility,as it now looks like they pulled a bait-and-switch, pitching the mandate as a penalty, justifying it as a tax?

    1. Lalala I can’t hear you…Koch Brothers! Justice for Trayvon!

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