Co-blogger Jonathan Adler recently posted on United States v. Elk Shoulder, a recent Ninth Circuit decision which may be the first court of appeals case interepreting the Supreme Court’s individual health insurance mandate decision in NFIB v. Sebelius.
When NFIB came down, some commentators argued that Chief Justice Roberts’ conclusion that the mandate was not authorized by the Commerce Clause and Necessary and Proper Clause was mere dictum, and therefore not binding precedent for the lower courts. I criticized that view here. It’s worth noting that the Ninth Circuit just treated the Roberts’ Necessary and Proper reasoning from NFIB as if it were binding. In upholding the Sex Offender Registration and Notification Act sex offfender registration requirement, they relied heavily on NFIB’s interpretation of the Necessary and Proper Clause:
[B]ecause SORNA registration requirements are imposed only on individuals who were convicted of sexual offenses, it regulates only “those who by some preexisting activity bring themselves within the sphere of federal regulation.” NFIB, 132 S.
Ct. at 2592....
Although the Necessary and Proper Clause provides no justification for laws effecting “a substantial expansion of federal
authority,” NFIB, 130 S. Ct. at 2592, SORNA’s registration requirement is “narrow in scope” and “incidental to the exercise” of enumerated powers. Id. at 2592 (opinion of C.J. Roberts)...
The conclusions that the Necessary and Proper Clause does not authorize legislation that doesn’t regulate a “preexisting activity” or that effects “a substantial expansion of federal authority” are central elements of Roberts’ analysis of the Clause in NFIB. And in Elk Shoulder, the Ninth Circuit seems to be treating them as binding precedent. It’s theoretically possible to interpret these passages as merely citations of persuasive authority that happen to accord with the Elk Shoulder panel’s own views of the Necessary and Proper Clause. But the decision seems to be citing NFIB in exactly the same way as it cites other Supreme Court precedent, and without any hint that it isn’t binding.
Although two of the three members of the Ninth Circuit panel are conservative Republican appointees, the third – Wallace Tashima – is a liberal Democrat appointed to the district bench by Jimmy Carter and the Ninth Circuit by Bill Clinton. I doubt that Judge Tashima actually agrees with Roberts’ Necessary and Proper reasoning in NFIB. Very few liberal jurists do. If he nonetheless went along with the Ninth Circuit’s adoption of it in this case, it is probably because he sees it as binding precedent, not merely persuasive dictum.
Obviously, this does not mean that other circuit courts will also treat this part of NFIB as binding. Nor does it prove that defenders of the dictum theory are necessarily wrong. They can simply claim that the Ninth Circuit made a mistake here. But it’s an interesting development nonetheless.
UPDATE: It’s also worth noting that three district courts have decided whether or not to treat Roberts’ Commerce Clause and Necessary and Proper Clause rulings in NFIB as binding. Two have treated it as a valid precedent, while one considers it to be dictum. See United States v. Williams, 2012 WL 3242043, at *3 (S.D.Fla. Aug.7, 2012) (stating that Chief Justice Roberts was “writing for the Court” when discussing Congress’s commerce power) ; United States v. Moore, 2012 WL 3780343, at *3 (E.D.Wash. Aug.31, 2012) (treating it as a binding concurring opinion under Marks v. United States, 430 U.S. 188 (1977)); and United States v. Spann, 2012 WL 4341799 at*3 (N.D. Tex. Sept. 24, 2012) (concluding that NFIB’s Commerce Clause analysis was dictum).