Commerce Clause status quo
[...] A number of politicians and commentators are claiming that the Supreme Court in the Obamacare case “limited” the reach of the commerce clause, i.e., five justices held that individuals cannot be mandated to buy insurance under the commerce clause. Actually, the five justices did not limit anything. They simply did not accept the Obama administration’s ridiculous argument that inactivity is commerce. The status quo stands because Obamacare was upheld under the tax provisions. However, the bigger point is this — when a court issues an opinion, it is said to be the “Opinion of the Court.” The Opinion of the Court is the controlling precedent. Chief Justice Roberts wrote the Opinion of the Court for Parts I (background on the Obamacare law), II (the Anti-Injunction Act is not a bar to the lawsuit proceeding and being decided) and III-C (Obamacare is valid under the tax power).
But respecting Part III- A, the commerce clause and necessary and proper section, the decision notes that Roberts is writing for himself, not for a majority. Furthermore, the Dissent is labeled as: “Justice Scalia, Justice Kennedy, Justice Thomas, and Justice Alito, dissenting.” It is not labeled as “dissenting in the judgment, concurring in part” or some permutation.
You cannot say it was the “opinion of the court” that the mandate violated the commerce clause. You have to cobble together sections where Roberts is writing for himself and the dissent (which did not formally join with Roberts), is writing for itself.
In fact, Justice Thomas, in his separate dissenting opinion, wrote:
“The joint dissent and THE CHIEF JUSTICE correctly apply our precedents to conclude that the Individual Mandate is beyond the power granted to Congress under the Commerce Clause and the Necessary and Proper Clause.”
Notably, this does not explicitly state that the dissenters joined with the Chief’s opinion respecting the commerce clause. If five justices had intended for their view of the commerce clause to be controlling as the majority view of the court, they would have said so by joining or concurring in each others’ parts. They didn’t. There was no formal majority on the commerce clause issue. Should this matter come before a court again, it is not settled as a matter of precedent and no doubt the litigants will still be fighting over it.
No precedent, no formal majority. It is but dicta.
No future Court need distinguish this case nor overrule it with respect to the Commerce Clause. But it will be cited far and wide as sacrosanct with respect to Congressional tax power, that you can bet on.
The argument being made by people like Will and Krauthammer and Hewitt and Taranto and all the other “thinking” Republicans is merely and entirely political cover for the judicial activism of a CJ who was too terrified to do his job and so instead decided to enslave all of us.
Now please, the rest of you. Stop embarrassing yourselves. And, by extension, embarrassing those of us who know we lost, who know how we lost, and who (at least in my case, and the case of the readers here) know not only why we lost, but why it is in fact inevitable that we lost.
Notes George Orwell in the comments:
Roberts’s opinion about the commerce clause was irrelevant to his ruling. He did not need to even pronounce a word about the commerce clause because he believes the mandataxdate thingy is kosher under the powers of taxation. Any future objection in court about overreach of the commerce clause, referring to Roberts’s opinion, will be swatted down by the opposition with the simple rejoinder: It was not material to ruling in favor of ACA, because Roberts said it was constitutional on taxation alone.—”George Orwell“
Roberts has done the worst possible thing vis-à-vis this ruling. As we’ve seen, when SCOTUS helps expand the power of the state, IT NEVER GETS ROLLED BACK.
Even if Obamacare is repealed, the Dems (and many Repubs) will—from now on—craft all of their liberty-crushing, Constitution-shredding legislation in such a way that they can play Schroedinger’s cat with it—treat it as a mandate to prevent applying legislative rules on taxation, and then treat it as a tax to make it “Constitutional.”
There is no silver lining to this cloud. Roe v. Wade may have energized Christians into becoming involved in politics, but in the meantime, millions have died and it still remains the law of the land.
This is one more leftward click in a ratchet that we’ve never been able to click back.
The Sweet Meteor of Death cannot come soon enough.