Monday, April 08, 2013

How binding is Justice Roberts' finding that the ACA's individual mandate exceeds Congress's Commerce Clause authority? - update

Last July, I posed the question in the title in the post below, prompting a bit of a lawyer's debate in the comments. Ratman, an acute critic of the reasoning accepted by Chief Justice Roberts on this question, has just rejoined that debate after a nine month hiatus-- prompting me to wonder whether the question has been addressed in legal literature.

So, attorneys: What do you think of Ratman's argument below?  Has "the Supreme Court ruled" that Congress can't regulate inactivity, or can't mandate a purchase in the unique case posed by insurance?

A quick question of law
Thursday, July 05, 2012

How many of Chief Justice Roberts' brethren signed onto his finding that "the individual mandate is not a valid exercise of Congress’s power under the Commerce Clause and the Necessary and Proper Clause"?  None.

Justice Ginsburg, writing for the four liberal justices with regard to the mandate, concurred with Roberts' finding that the mandate was a constitutional exercise of Congress's taxing power, but dissented strongly on the Commerce Clause question. Justices Alito, Kennedy, Scalia and Thomas officially concurred with no part of Roberts' decision, though their reasoning with regard to the Commerce Clause mirrored his.  And of course, the Chief Justice's own finding that the mandate is constitutional rendered his Commerce Clause judgment moot with respect to the fate of the individual mandate.

A question, then, for legal scholars: does the finding that Congress cannot regulate inactivity have any force of law for future cases?
I personally believe that 1) the liberty-squelching mandates that conservatives purport to fear are a chimera; democratic pressures alone will forestall them, as they have forestalled state purchase mandates; and 2) the future import of all parts of this decision will depend mainly on the future makeup on the Court -- that is, in the near term, on the outcome of the presidential election.

But I'd still like to know: other than opening a window on the thinking of five sitting conservative justices, does Justice Roberts' attempt to limit Congress's Commerce Clause power matter?
  1. Even if the four dissenters had concurred, I think Ginsburg was correct in noting that the Commerce Clause discussion was not dispositive of the case. In formal legal theory, binding precedent comes only from the rules known to dispose of cases - the "ratio decidendi" - the "reason for the decision". Any other pronouncements are considered mere "obiter dicta" - "by-the-way talk".

    But note how Roberts attempted to work around this. He argued that:

    a) the mandate was more naturally seen as a command than as a tax;

    b) so, gosh darn, I really, really, really had to consider whether it was a valid command under the Commerce clause;

    c) the mandate wasn't a valid command;

    d) invalidity under the Commerce Clause, caused me to invoke a well-established prudential rule requiring that me try to find other ways to sustain an Act of Congress; I was forced to do it because the mandate does not pass under the Commerce Clause; I would never even have thought about sustaining the mandate provision as a tax if the "inactivity" rule had not made me do it.

    e) because it forced consideration of the taxation issue, the "inactivity rule" has force! It's a binding rule.

    This line of argument is unlikely to be successful. It too easily allows a court to bootstrap rules that would otherwise be mere "dicta" into a "ratio decendendi".

    Even if the "inactivity rule" were valid, however, it might not matter much. A willing SCOTUS in this very case could have said that Congress did not address the "inactivity" of refraining from purchasing health insurance, but instead it targeted the "activity" of deliberately deciding to rely on guaranteed issue. Actually, that is exactly what Congress did. A bit more is here.
  2. The one person on whom these dicta are "binding" is Roberts himself. Dissenting Justices can, and often do, squirm away from their own dicta in later cases. "Gee, I wasn't really paying attention because what I had to say was not critical to the outcome." But what Roberts did in the ACA case reminds me of the guy in an automobile chicken run throwing away the steering wheel - reassuring his conservative allies that "I will never, ever rule that inactivity can be subjected to the Commerce power. Count on it."
  3. There is a distinction between "obiter dictum" -- which I believe literally means "something said in passing" -- and "judicial dictum" -- to quote Wikipedai, "an opinion by a court on a question that is directly involved, briefed, and argued by counsel, and even passed on by the court, but that is not essential to the decision." The discussion of the Commerce Clause is clearly the latter, and hence, according to this article, is pretty darn binding: See also

    As for whether the four dissenters jointed Roberts' opinion, well they certainly agreed with his finding re: the Commerce Clause; had they disagreed, they would have voted to uphold the mandate.


    1. Sorry for the late reply, Gordon.

      Oh, nuts! Did I miss that day in law school? Did I forget something in the forty years since I graduated? After looking over the case law, which admittedly took a while to get around to, I still believe these dicta are not so darn binding.

      As near as I can tell, an at-most-middling minority of jurisdictions rely on contrasting “obiter dicta” and “judicial dicta” to describe the distinction you are drawing. In fact, the gist of the Los Angeles Lawyer article you cite is a lament that the “correct” obiter/judicial nomenclature, although asserted in a single case in a single California inferior appellate court over a century ago, has never again appeared in any case in that state.

      Still, whatever the language used, the vast majority of lawyers and jurists would likely agree that dicta grounded in fully-argued, demonstrably-careful judicial deliberation are entitled to serious consideration. Illinois courts, which both use the rubric you mention and are relied on heavily by each of the references you present, seem to give the greatest weight given by any state to dicta of this sort, declaring that it “should be followed unless found to be erroneous”. Cates v. Cates, 156 Ill. 2d 76, 80, 619 N.E.2d 715, 717 (1993).

      Subjecting the Affordable Care Act dicta to the unusually generous Illinois interpretation, however, seems to me to lead almost exactly nowhere. Each of the discussions on the Commerce Clause issue — including Ginsburg’s argument that the mandate does NOT violate the Commerce Clause — should receive special deference by virtue of full-briefing and careful deliberation. BOTH sides of the argument are supported by “judicial dicta”, so EACH side “should be followed unless found to be erroneous”? Of course not! Any subsequent court, even under the Illinois standard, will have to determine for itself which set of competing dicta correctly stated the law.

      In a similar vein, another Illinois case (actually the subject of the (actually the subject of the lawyer blogpost to which you directed our attention), made clear that dicta which have been contradicted will command a much diminished level of respect. A 5-4 division of dicta between Supreme Court justices reflects, I would say, a sort of platonic ideal of contradiction.

      So, not so darn binding.
      UPDATE: More from Ratman here.

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