The Obamacare Commerce Clause Ruling: Dictum?Posted: June 29, 2012
In my earlier post on Chief Justice Robert’s use of the doctrine of constitutional avoidance, I stated that he, along with the four dissenting justices, had actually held that the individual mandate did not pass muster under the Commerce Clause. But a number of commentators have suggested, quite reasonably, that the entire discussion about the Commerce Clause in the Chief Justice’s opinion may be dicta.
Dicta (dictum in the singular) are statements in an opinion that are unnecessary to the resolution of the case. As a general rule, judges try to avoid dicta when writing opinions and instead only decide the issues that they must decide to resolve the case. Moreover, both lawyers and judges do not view dicta as binding “law.”
The Chief Justice violated the prudential rule against dicta in an opinion. As I noted in my earlier post, he should have said that there was no need to decide the Commerce Clause question because Obamacare represented a constitutional exercise of Congress’s power to tax and spend for the general welfare. Instead, he went out of his way to write a lengthy opinion in which he agreed with the four dissenting justices that the individual mandate violated the Commerce Clause, but then agreed with the concurring justices (Ginsburg, Breyer, Kagan and Sotomayor) that the mandate was a constitutional “tax.”
So, are the Chief Justice’s statements about the Commerce Clause binding on future courts? The short answer is a political one: As long as the composition of the Court remains unchanged, the five justices who would have struck down the mandate based on the Commerce Clause will likely hew to the Chief Justice’s restrictive understanding of the clause. But if the President is reelected and the composition of the Court changes, the “new” court will have little difficulty distancing itself from the Chief Justice’s statements about the limits of the Commerce Clause. Those statements will be dismissed as “mere dicta.”