Dicta on the Commerce Clause

Fellow-blogger Randy Barnett writes, in today’s Washington Post Outlook Section, that the healthcare decision shows that the Court is prepared to enforce limits on Congress’ powers:

Lawmakers argued that this mandate was justified by the Constitution’s commerce and “necessary and proper” clauses. Had we not contested this power grab, Congress’s regulatory powers would have been rendered limitless.

They are not. On that point, we prevailed completely. . . . The Supreme Court has definitively ruled that the commerce, necessary and proper clause, and spending power have limits; that the mandate to purchase private health insurance, as well as the threat to withhold Medicaid funding unless states agree to expand their coverage, exceeded these limits; and the court will enforce these limits.

So why was the law upheld?? Barnett continues:

“Roberts accomplished this by rewriting the law’s “individual responsibility requirement” so that it was no longer a mandate but merely an option: get insurance or pay a mild “tax” penalty. Contrary to the statute, he ruled that anyone who did not have to pay the penalty would have no legal duty to get insurance. So, because there is no mandate, the tax penalty is constitutional.

In perhaps the most important passage of his opinion, Roberts insisted that “without deciding the Commerce Clause question, I would find no basis to adopt such a saving construction” of the penalty. This makes his analysis of the commerce clause a binding holding for future courts to follow.”

[emphasis added]

I disagree with Randy on this. I don’t think Roberts’ analysis of the Commerce Clause is binding on future courts, because it is non-binding dicta — notwithstanding Roberts’ attempts to declare it otherwise.

Here’s the simplest way to describe what happened in this case: five Justices held that the individual mandate provisions of the Affordable Care Act are within Congress’ Article I taxing powers. Roberts also expresses his opinion (in part IIIA) that the mandate is not within Congress’ powers to regulate interstate commerce. It’s also (presumably) not within Congress’ power to coin money, or to raise an army, or provide for a Post Office — though none of the Justices mentioned any of that. They didn’t mention any of that because it was not necessary to the court’s judgment in the case that the mandate is constitutional) — the very definition of non-binding dicta.

Roberts tries to declare it otherwise (in the language Randy quotes):

“without deciding the Commerce Clause question, I would find no basis to adopt such a saving construction” of the penalty.

This makes little sense to me – other than as a rhetorical ploy to try to convince readers to treat it as a binding holding. Why was it necessary to decide the scope of the commerce clause in order to decide that the mandate was within the taxing power? Here’s Roberts at greater length on this:

The most straightforward reading of the mandate is that it commands individuals to purchase insurance. After all, it states that individuals “shall” maintain health insurance. 26 U. S. C. §5000A(a). Congress thought it could enact such a command under the Commerce Clause, and the Government primarily defended the law on that basis. But, for the reasons explained above, the Commerce Clause does not give Congress that power. Under our precedent, it is therefore necessary to ask whether the Government’s alternative reading of the statute–that it only imposes a tax on those without insurance–is a reasonable one.

Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes. See §5000A(b) . That, according to the Government, means the mandate can be regarded as establishing a condition- not owning health insurance–that triggers a tax– the required payment to the IRS. Under that theory, the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax.

The question is not whether that is the most natural interpretation of the mandate, but only whether it is a “fairly possible” one. As we have explained, “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” The Government asks us to interpret the mandate as imposing a tax, if it would otherwise violate the Constitution. Granting the Act the full measure of deference owed to federal statutes, it can be so read, for the reasons set forth below.

[My emphases throughout]

The key (and clever) rhetorical move is in that final paragraph, in the italicized language. The government didn’t ask the Court to interpret the mandate as imposing a tax “if it would otherwise violate the Constitution.” The government asked the Court to interpret the mandate as within the commerce clause power or, in the alternative, within the taxing power. It’s very straightforward, and the Court’s holding that it is within the taxing power does not require it to determine whether it is or is not within the commerce clause power. Roberts’ formulation makes it looks as though the Court first has to decide “whether it would otherwise violate the Constitution,” and then (if it answers that first question in the affirmative) whether it’s a proper exercise of the taxing power. But that’s not a fair description of the Court’s task, which is to decide whether the Constitution permits Congress to enact the mandate. [Answer: it does, under the taxing power]

Justice Ginsburg got it right:

The Chief Justice states that he must evaluate the constitutionality of the minimum coverage provision under the Commerce Clause because the provision “reads more naturally as a command to buy insurance than as a tax.” Ante, at 44. The Chief Justice ultimately concludes, however, that interpreting the provision as a tax is a “fairly possible” construction. Ante, at 32 (internal quotation marks omitted). That being so, I see no reason to undertake a Commerce Clause analysis that is not outcome determinative.

[thanks to Steve Salop for the heads-up on this issue]