Thursday, June 28, 2012

Obamacare Upheld Thanks to CJ Roberts: I'm Back to Thirty Percent

By Mike Dorf

When I was a law clerk for Justice Kennedy during the 1991-92 Term, I witnessed a substantial number of very fine oral arguments.  During that time, no advocate shone brighter than John Roberts, then at the Solicitor General's office.  He was particularly strong in an ideologically charged case involving the question whether laws restricting abortion were laws that discriminated against women.  Why?  Because he managed to make an argument for a very conservative result (favored by the Bush I Administration) in non-ideological terms.  Roberts impressed me as extremely smart and not an ideologue.  When President Bush II nominated him to the Court I was pleased.  I knew Roberts was not a liberal by any stretch of the imagination, but I expected him to be a thoughtful conservative.

Others who knew Roberts better than I did were less certain.  My then-colleague Tom Merrill had worked with Roberts in government and recalled that the one thing one could say for certain about Roberts was that he never expressed his own opinion.  This struck some people as the sort of caution that one who is "playing possum" might exhibit.  Perhaps Roberts was a deeply conservative ideologue who was hiding his real views so that he would maintain his confirmability one day.  One could find some evidence for that reading in the publicly released memos he wrote as a law clerk and as a young lawyer in the Reagan Administration.  And certainly many of his votes as Chief Justice would give one reason to think that he remained deeply conservative.

But through it all, it turns out, John Roberts remained a lawyer at heart, and a pragmatic one.  I haven't yet read the full opinion, but the very fact that he sustained the Act as a tax shows that he has a deeply anti-formalist streak.  That was apparent during the oral arguments, when he, more than anyone, expressed puzzlement over how one could even say that the law contained a "mandate" when its only enforcement mechanism was tax liability for some and nothing for others.  And in the end, it turns out that was enough for him.

I am sure that there will be much speculation about whether Roberts voted as he did to preserve his legacy or to prevent the Court from being perceived as a purely political institution, but I don't buy it.  If the Chief had gone the other way, all of the attention/blame for the result would have focused on Justice Kennedy.  Moreover, although the Chief cares about the legitimacy of the Court, it's easy for liberals like me and most of my readers to forget that, given the unpopularity of the mandate, a decision the other way would not have much damaged the Court's legitimacy.  I think that CJ Roberts was simply led by the ineluctable logic of the anti-formalist argument that labels don't matter.

I have been saying some variation of the following since the oral argument: "When I started as a constitutional lawyer, I was about 70% legal realist.  I thought that in the ideologically identifiable cases in the Supreme Court, law accounted for roughly 30% of the outcomes one saw.  After Bush v. Gore, I was at 99-1.  That last one percent is on the line in the ACA case."  Now thanks to John Roberts, I'm back to 30%.


WalterWX said...

Since you're being linked to by Scotusblog and hence you're getting joined by non-lawyers like me, it would be nice if you explained what 'anti-formalist' means or refers to in this case. My common sense, which apparently isn't good enough for legal matters, tells me that 'labels do not matter', purely on the merit, would actually be a formalist argument par excellence.

Also, it would be really helpful if you rewrote your last paragraph in more clear terms, since for the life of me I truly do not understand what point you're trying to make there.

michael a. livingston said...

I agree and disagree. It's possible the issue is form v. substance. But I don't think it's insignificant that Roberts is Chief Justice. I think the CJ historically has responsibility for the overall reputation of the Court. Perhaps he didn't want to be known as the leader of a conservative super-legislature that decided a lot of key cases on 5-4 votes . . . although on the last point perhaps he failed.

Blogger said...

Interesting background on Roberts. I thought his background explanation of the Commerce Clause was cogent and accessible to non-lawyers.

I haven't dissected the opinion, but I wonder if it's the quintessential example of the Tidewater problem: where there is no majority opinion on the rationale for the disposition of the case. So does this case essentially create no legal precedent?

egarber said...

So Roberts wrote that the mandate wasn't sustainable as a commerce clause matter. Does this serve as precedent that such a mandate fails the commerce clause test -- even though it was upheld as a tax here?

egarber said...

So Roberts wrote that the mandate wasn't sustainable as a commerce clause matter. Does this serve as precedent that such a mandate fails the commerce clause test -- even though it was upheld as a tax here?

Unknown said...

You nailed it:

"The joint dissenters argue that we cannot uphold §5000A as a tax because Congress did not 'frame' it as such. Post, at 17. In effect, they contend that even if the Constitution permits Congress to do exactly what we interpret this statute to do, the law must be struck down because Congress used the wrong labels. An example may help illustrate why labels should not control here. . . . Our precedent demonstrates that Congress had the power to impose the exaction in §5000A under the taxing power, and that §5000A need not be read to do more than impose a tax. That is sufficient to sustain it."—John Roberts

philosoph said...

Peter Fee:

The non-lawyer who asked you to explain yourself, should be responded to as he asked. This is because I do not see how you consider legally requiring people to buy something and consider that a tax, is realism. It appears to me to be formalism --and a reach-- to call this a tax. Roberts ignores the burden he (now) imposes on people to pay in one way or another --for a scheme. He ignores the realistic impact that this will have on insurance options per se that are available to people. He ignores that their was political deceit in calling this mandate --NOT A TAX--and the choices made made were made on that basis. Roberts' alleged realism actually subverts the political presentation prior to passage that this was not a tax, and then claims to be free of the mess he creates by saying he is not responsible for the people's "political choices". Roberts hides in formalism and mere labels. I am a lawyer and law took a big hit today --when maximum attention with the people's hopes and fears placed on the Court. Roberts did not save the Court today or its or his reputation. He disgraced himself and revealed himself as a tool, too fearful of the "elite" opinion of him. Or, to be the most charitable, too locked in an empty formalism to see what the Government was doing to the people and the States in the atrocity of the ACA.

Joseph Simmons said...

5 Justices rejected the Commerce Clause argument - a position that you and many professors initially thought frivolous and most continued to think it far-fetched.

Was the Court's rejection of that argument simply ideological, a reason to nonetheless lose faith, despite the holding?

The liberal wing of the Court was ideological, seeing virtually no end to federal power on any issues before it in the 2800 pages of the law.

I suppose it was Roberts' desperation to save that law that saves one's faith. I find his reasoning specious, but it certainly showed that he wasn't adhering to any ideology. I don't find his logic ineluctable on the tax issue. He is straightforward about his motivation to find a way to uphold the law. His discussion of the tax issue is lacking, in terms of being a direct tax and in distinguishing it from a penalty. I find it far from ineluctable.

He certainly does exhibit an anti-formalist streak - not because an ordered and logical consideration of the Constitutional issues take him there - but because of the principle of saving this law if at all possible. He bends over backward to do so.

I find the conservative dissent to be rather lifeless.

I'm mostly with Roberts on the Medicare issue. I do think invalidating the entire law as non-severable is not called for, though the argument is compelling.

Striking down the law might not align with one's preferences for constitutional interpretation, but calling it ideological seems inaccurate.

Can one Justice determine whether we have faith in the Court? Given the logic, or lack thereof, of his opinion, as well as the dissents, I'm not encouraged.

Matt said...

Uh, Roberts even said in the opinion that he was embracing a "functional approach" with regard to the Taxing Clause.

Roberts was anti-formalist in the sense that the labels don't matter -- while the "mandate" was labeled "penalty", it was still a tax in the way it operated. Form vs function is a quintessential distinction between formalism and anti-formalism.

And with regard to realism, Prof. Dorf wasn't saying that Roberts is a realist, but that he himself (Dorf) is a realist. And by that, I'm guessing he meant it in the classic, Holmes-Llewellyn-Frank sense.

Billy Rosen said...

Hi Professor Dorf,

I agree that the opinion shows C.J. Roberts' pragmatic side. But reading the four-justice dissent, it strikes me that their willingness to take down the entire ACA may have forced the Chief's hand.

Let's suppose that his main concern was to limit Congressional power under the Commerce Clause, and that his preferred outcome would have been to see the mandate fall under that rationale, but not take the more drastic step of invalidating all the other parts of the ACA, many of which have nothing to do with the mandate or the "creating commerce vs. regulating existing commerce" distinction.

The problem for this hypothetical version of the Chief is that all eight of his colleagues reached one of two conclusions, both of which eliminated the need to address severability and sort out exactly which other provisions would have to fall.

So perhaps C.J. Roberts was faced with two "middle" options: writing a controlling opinion in which he joined in striking down the mandate and then unilaterally rewrote a piece of legislation, or compromising and joining the four more liberal members of the Court.

It seems to me he may have chosen the latter course. Either way, it shows him to be practical and non-formalist, but maybe not quite for the reason you infer.

Of course, this is just my very preliminary hunch.


P.S. It was nice running into you with Antonio at Aladdin's last week.

philosoph said...

Peter Fee:

This Link to Richard A. Epstein's post on Scotusblog accords with my earlier post here:

Professor Richard A. Epstein:

Taxation and regulation under the health care Act

Chief Justice Roberts’ decision that sustains the individual mandate under the taxing power of the United States is filled with twists and turns that requires some words of protest. In the section of his opinion that deals with the Commerce Power, the Chief Justice accepts the view that Congress cannot regulate individuals unless and until they engage in some form of economic activity. He therefore accepts in full the arguments against the expanded reading of the Commerce Clause that were made by conservative commentators. He did so, as is his habit, without stopping a moment to analyze the enormous expansion in federal power that was ratified in Wickard v. Filburn, which authorized Congress to regulate under the Commerce Clause of the amount of wheat that a farmer could produce for home consumption. Big government, we shall have, but not that big, after all.

But when it comes to the taxing power all bets are off. Here the key statement that he makes is this: “it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income.” With all respect, the point is little short of absurd. The earlier portion of the Chief Justice’s opinion noted the huge expansion in federal power that could arise if the government were permitted to regulate various forms of inactivity. What possible argument then could be put forward to say that the same risks do not apply to the expansion of the taxing authority to those same forms of inactivity, in ways that it has never been exercised before. The two examples that the Chief Justice gives are the tax on buying gasoline or earning income. Both of those are obvious activities that have long been regarded as acceptable bases for taxation. But not buying health insurance is not an activity. I am not aware of any tax imposed on individuals for not buying gasoline and not earning income, or not taking a bath or not working in a home office. To allow this to stand as a tax is to accept the same kind of absurdity that was rejected in connection with the taxing power. Intellectually shabby, to say the least.

Matt said...


Well, the activity-inactivity distinction applies only to the Commerce Clause, and not to the Taxing Clause. (Personally, I see no convincing reason why it should apply to either.)

More to your point, however, just because there is constitutional potential for big government doesn't license the Supreme Court to create distinctions and tests out of thin air. This, of course, is my problem with the activity-inactivity distinction in the first place. Roberts only seems to have two arguments: (1) we've used the word "activity" in our previous cases, and (2) the language of the Constitution seems to presuppose activity.

However, if we accept those arguments to be correct, then it's pretty easy to see why the activity-inactivity distinction applies to the Commerce Clause and not the Taxing Clause. Just compare the language: "To regulate commerce" and "to lay and collect taxes". The latter doesn't presuppose activity in the way the former does.

Another reason, more importantly, is that the Taxing Clause is already subject to many limitations, as Roberts noted in his opinion.

Matt said...


I think it is a pretty basic precept, at least in American law, that the nature of the written constitution requires that general principles be hemmed in by the express language of the document.

meads said...

Prof Dorf you are being much to kind to CJ Roberts. His decision was purely conservative politics. He and the rest of the Conservatives got what they wanted; limitations of the Federal Government's power to attach strings to Federal grants (in this case Medicaid) under a novel theory, limitation on the Commerce Clause and the Necessary and Proper Clause( under another novel theory that appear no where in the Constitution or under SCT precedents) , preventing a Constitutional confrontation with the President and painting the mandate in an unfavorable political light as a tax ( which of course it was ). What is also remarkable was how conservative Justice Kennedy has become in his old age. The Mainstream Media can stop calling him a swing vote; he is reliably a Conservative as Justice Alito, Thomas or Scalia. It is scary that the majority of Justices are so blatantly political as there is no other reasonable basis for this decision on the Commerce Clause and the Necessary and Proper Clause versus their decision in Raich and Comstock.

Blogger said...

As I read it, Roberts' opinion on the Commerce power was not the opinion of the Court, and in any event it was dicta. Right?

So it seems to me that conservatives are wrong to claim that this will stand as precedent to bind future cases on the commerce clause.

The question answered was whether Congress had the power to enact the individual mandate. The answer was yes. The reason was that it is a tax and Congress may enact such taxes. The aside from Roberts about the Commerce Clause is nonbinding.

Anyone disagree?

Crispian said...

Blogger, there was a good article, either on Volokh or ScotusBlog (I believe) addressing this point - though I've misplaced the article.

Roberts is quite clear that he would not reach the tax issue without first running headlong into the Commerce Clause.

It is only after finding that the Commerce Clause doesn't permit the mandate does Roberts express a compulsion to find any other rational means of upholding the law. And he tries mightily to make the mandate fit the definition of a tax.

The liberal justices might not think that approach necessary - but Roberts' decision is the decision of the Court and he does have 4 other justices agreeing with him on that point.

Another important consideration is that Roberts doesn't just find the mandate unsupported by the Commerce Clause, in the agnostic way that the mandate is also unsupported by the War Powers Clause or any number of various other clauses, but he finds the mandate violative of the constitutional order.

What is astounding is that Roberts nonetheless forges ahead to find it constitutional in some way. In light of all this, I think it disingenuous to say the Commerce Clause part is mere dicta. Without that holding, it is clear there would not be a 5th vote to uphold the mandate.

Similarly, it would be disingenuous to ignore Roberts' discussion of the Anti-Injunction Act as mere dicta on the basis that it didn't ultimately relate to upholding the mandate as a tax. Reducing Supreme Court decisions to a "yes" or "no" answer and ignoring the reasoning necessary to get there strikes me as improper. Should it only be important that law is upheld? Or is it also important that a law is found unconstitutional in a sense? In essence (though something of a fiction) Roberts struck down the mandate but preserved the "tax." Roberts is saying it can only really be a tax.

As some conservative commentators are arguing, I do think it has a Marbury v. Madison quality to it.

Liberal jurists will push the argument you present and it's not totally off the wall, but for the reasons above I think it should be a losing argument.

-I apologize for the length of the post!

Blogger said...

Thanks for your response, Crispian.

But the Roberts opinion on the Commerce Clause was NOT the opinion of the Court:

"CHIEF JUSTICE ROBERTS announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III–C . . ."

The opinion of the Court held only that the ACA was a constitutional exercise of Congress's tax power. Roberts wrote an introduction that was his own opinion, then wrote Parts I (giving a procedural background on the case), II (holding that the Anti-Injunction Act did not prevent consideration of the tax issue), and III-C (holding that the ACA mandate was a valid exercise of the tax power).

His other opinions are his own and were not joined by others. Therefore, as the opinion of a single justice, they bind no court. Disagree?

Also, on the Anti-Injunction point, that is certainly NOT dicta. You offer the straw man that one might view it as "mere dicta on the basis that it didn't ultimately relate to upholding the mandate as a tax." But not only did the opinion "relate" to upholding the mandate as a tax, it was necessary to deciding the issue -- the Anti-Injuncion Act presented a threshold issue about whether the Court could consider the merits. And, a single justice's assertion that he would have not reached one issue before considering another is not binding. Disagree?

This is not to say that Roberts' opinion wouldn't be cited as persuasive authority. But it is not law. Neither SCOTUS nor any other court is bound to adhere to the opinion of a sole Justice, even if it is that of the Chief Justice.

I'd love to hear any differing opinions on this point.

Crispian said...


I do hope Professor Dorf gives his views on the significance of the formal designation of the Court's opinion and the rest of the questions you raise.

But here is something to consider: according to the formal designation of who joined Roberts in the Medicaid part of his opinion, there were only 3 Justices (including himself). As for Roberts reformation of that part of the statute, there were 5 Justices who supported his reading (including himself), 2 of who dissented on the Medicaid issue. The 4 conservative dissenters obviously agreed with Roberts, but did not "join" his opinion and they did not think reformation appropriate.

So in that tangled mess, might we say Ginsburg and Sotomayor's views on reforming the Medicaid statute were mere dicta, since they thought the statute constitutional and do not properly reach that issue? Or do we count their votes for the sole purpose of resolution. If so, who is the majority on that issue? Are the conservative dissenters being counted, even if not formally recognized? Do we merely abide the announcement that it's the "opinion of the Court" notwithstanding the arguments, logic, and number of votes contained therein?

I admit to being a little crafty in my argument about the Anti-Injunction Act. My point is that if we only care about the disposition and take from the opinion only enough to support that disposition, and not how the Court got there, we are ignoring the logic of the opinion, such as it is.

You ask: "a single justice's assertion that he would have not reached one issue before considering another is not binding. Disagree?"

Is it radically different than Ginsburg and Sotomayor's endorsement of Roberts' reformation of the Medicaid part of the law? Why should their votes be binding?

Imagine if Congress now passes a law jailing people for not buying insurance (as an exercise of the Commerce Clause). Do we say that even though 5 Justices held a mandate to be unconstitutional under the Commerce Clause, that it was not strictly required for the disposition of that particular case (according to 4 justices)?

Otherwise, we must implicitly endorse the view of 4 liberal justices that the mandate is simply a tax - when that's not what Roberts' wrote. I grant you that Roberts doesn't constitute a majority, but neither do the 4 liberal justices.

Roberts held the mandate constitutional IF read as a tax. In response to Ginsburg, Roberts writes, "Without deciding the Commerce Clause question, I would find no basis to adopt such a saving construction."

That Roberts would otherwise "find no basis" for upholding the mandate as a tax cannot be mere dicta. If you negate the Commerce Clause argument as mere dicta, that throws his saving construction interpretation into doubt. Especially when he is joined by 4 Justices who similarly reject the Commerce Clause argument that gets him to the consideration of the Tax power.

It is dicta that Commerce Clause consideration is a necessary predicate to the tax issue - since none of the other justices endorse that view - and I don't even think Roberts is presenting that as doctrine.

This is a bunch of fodder for thought. Maybe this decision is more like Bush v. Gore, having little relevance outside the singular case before the court. If Roberts thinks the mandate is only a tax as a saving construction, but that such taxes may otherwise be unconstitutional (granted I'm not sure where that could happen), then there isn't an absolute majority for the mandate as tax as a general rule.

I've been pondering hypotheticals like whether the government could tax us $1 for each coffeepot we do not own with a maximum $20 tax, exempting left-handed redheads (so that it's not a capitation).

Blogger said...


Yes, the opinion is unfortunately messy, but that's why it's important to do the work to parse it.

First point: whether an opinion is the opinion of the court and whether it is dicta are two separate issues. An opinion of the court may be dicta. Here, Roberts' opinion happens to be not that of the court AND it is dicta.

Second point: there was no opinion of the Court on the Medicare issue, but there was a judgment (as I read it -- let me know if I'm wrong). See pp. 58-59 for the judgment that Roberts announces. So as I read it, the judgment is binding on the parties and is precedent for factually similar cases, but the rationales expressed in the various opinions is not.

I don't mean to argue that one should ignore the various opinions when trying to decide what a future SCOTUS might decide by counting heads. But when those opinions are not that of the Court, they are not legally binding precedent.

Admittedly, the foregoing is my own quick analysis based on my basic understanding of a traditional interpretation of stare decisis. I'd be interested to know of any differing opinions that add more nuance.

Blogger said...

Just re-read my post and wanted to clarify: I think I was guilty of mixing up the issues of whether an opinion is dicta and whether it's not the opinion of the Court. I suppose that in order to be dicta, an opinion must be that of the Court. So strictly speaking, Roberts' Commerce Clause wasn't dicta (or holding) because it wasn't the opinion of the Court.

In any event, I don't think the Commerce Clause opinion is controlling because it wasn't the Court's opinion, but even if it were, it would be dicta.

Crispian said...


Good catch on what constitutes dicta - wish I had thought of that at first glance!

What continues to stick in my mind is that in this case, 5 justices felt it necessary to decide the Commerce Clause matter and held the mandate to be unconstitutional, under that rationale. I think that is indisputable.

But maybe it was a decision with relatively little in the way of binding precedent on the Commerce Clause issue.

On the Medicaid issue, there were 7 justices who held it unconstitutional. On the Medicaid issue, it is a plurality opinion, though I see little daylight between the conservative dissenters and Roberts on the Medicaid expansion's constitutionality (or the Commerce Clause). There is no apparent right way of treating plurality decisions as precedent, according to a law review (found in full on the school's website) : James A. Bloom, Plurality and Precedence: Judicial Reasoning, Lower Courts, and the Meaning of United States v. Winstar Corp., 85 Wash. U. L. Rev. 1373 (2008).

A fun (?) exercise might be in comparing this case to that of Coleman v. Court of Appeals of Maryland (2012). That case concerned the assertion of Commerce Clause authority and/or 14th Amendment power - though the latter contention was roundly rejected by ever Court of Appeals.

In that case, an ex-employee was suing the state for failure to provide sick leave, as required by federal law. The state claimed the federal law allowing suit was an unconstitutional breach of sovereign immunity.

4 justices, led by Kennedy, held that the law did not fit under the 14th Amendment (because the remedy of the statute was not "congruent" with violations of the 14th Amendment) and as an exercise of the Commerce Clause was invalid.

Scalia concurred with Kennedy's opinion, but rejected the congruency test, instead relying on the text of the 14th Amendment to decide that protection of sick leave is not in its ambit.

4 justices, led by Ginsburg, dissented that the law was congruent under the 14th Amendment and should be constitutional. Ginsburg and Breyer additionally believed sovereign immunity could be abrogated under the Commerce Clause.

Scalia wrote: "The plurality’s opinion seems to me a faithful application of our 'congruence and proportionality' jurisprudence. So does the opinion of the dissent."

I would think that the opinions are good precedent for applying the congruency test because 8 justices endorsed that view - even if 4 of those justices were dissenting based on their understanding of the precise law before them. To me, the principles and doctrines endorsed by a majority of the Court are more important as precedent for later cases than resolution of the nature of the single law before them. I may well be mistaken in this. Or maybe there is not a clear line, except to say that an opinion explicitly endorsed by a majority is unquestionably good precedent.

Cristiero Rola said...

I don't mean to argue that one should ignore the various opinions when trying to decide what a future SCOTUS might decide by counting heads. But when those opinions are not that of the Court, they are not legally binding precedent.

Admittedly, the foregoing is my own quick analysis based on my basic understanding of a traditional interpretation of stare decisis. I'd be interested to know of any differing opinions that add more nuance. Windows 7 ultimate Key
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Jet Li said...

I acknowledge along with disagree. Possibly the thing is type /. compound. However don't believe it can be trivial in which Roberts can be Chief Justice. I believe the CJ historically provides obligation for
that total trustworthiness of the judge. Maybe they don't wish to be called the head of your conventional super-legislature that will determined a lot of key instances upon 5-4 ballots . . . even though around the very last stage maybe he unsuccessful.

Winter's Web said...

In a court opinion, dicta is whatever is logically unnecessary in order for the ultimate decision on an issue to stand. Lisa M. Durham Taylor, Parsing Supreme Court Dicta to Adjudicate Non-Workplace Harms, 57 DRAKE L. REV. 75, Part III-A (2008); Broadwater v. State, 909 A.2d 1112, 1123 (2006), 931 A.2d 1098 (2007): "Most significantly, the observations in the dicta are not in any way important to the actual decision in the case. The holding would not have been affected in any way if the dicta had been totally excised from the opinion. Three weeks of law school should teach us that such gratuitous dicta does not take on the mantle of binding precedent. Some dicta, of course, may turn out to be a harbinger of future change, but it does not, in and of itself, become a part of stare decisis." By definition, dicta is not binding precedent; only the holding is.

In my opinion, Justice Roberts' entire Commerce Clause analysis is dicta, even though four other justices--the dissenters--essentially agreed with it.

(And yes, there is U.S. Supreme Court precedent that holds that if necessary we can look to dissenters to provide a majority on a particular issue before the court. Moses H. Cone Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 17 (1983); see Marks v. United States, 430 U.S. 188, 193 (1977). )

So why is the entire Commerce Clause analysis dicta, even though five justices--Roberts and the dissenters--support it? Because in the words of the above Broadwater case, "The holding would not have been affected in any way if the dicta had been totally excised from the opinion."

Specifically, the 5-4 holding of the Supreme Court on the individual mandate (the requirement imposed upon the uninsured to buy minimum-coverage health insurance policies) is that the tax-penalty for ignoring it is authorized by the Constitution's Taxing Clause, which gives Congress the power "to lay and collect Taxes." U.S. Const., Art. I, § 8, cl. 1.

The above 5-4 holding--that the Taxing Clause makes the individual mandate's tax-penalty constitutional--is logically sufficient in and of itself to decide the constitutional issue before the court. That is, it needs no additional support from any other part of the Constitution to make logical sense. Therefore the entire discussion of the Commerce Clause is dicta.

It wouldn't matter if all nine justices had joined in Robert's discussion of the Commerce Clause. For the reasons just stated, the entire Commerce Clause would still have been dicta.

On page 37 (main text and footnote 12) of her concurrence/dissent, Justice Ginsburg finds the very existence of Chief Justice Roberts' Commerce Clause discussion "puzzling," because it is "not outcome determinative." This is just another way of saying that it is dicta and not a holding.

Roberts tries to get around this by stating that "[w]ithout deciding the Commerce Clause question, I would find no basis to adopt such a saving construction [of the individual mandate's penalty as a tax]." Roberts opinion, Part III-D, page 44. This doesn't work to transform the Commerce Clause dicta into a holding because no other justice joins Roberts in this (or in any portion of Roberts' Part III-D).

The rather eye-opening conclusion to be drawn from a serious study of the dicta-holding divide is that the large majority of what is written in judicial opinions is dicta, and not holdings--that is, not binding precedent. See Pierre N. Leval, Judging Under the Constitution: Dicta About Dicta, 81 N.Y.U. L. Rev. 1249, 1274–75 (2006).

Above comment written by me, George Zadorozny, Attorney-at-Law. I limit my practice to legal research, writing, and consulting for attorneys. More info at and at

Muhammad Zahid Iqbal said...

think that CJ Roberts was simply led by the ineluctable logic of the anti-formalist argument that labels don't

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soft said...

Uh, Roberts even said in the opinion that he was embracing a "functional approach" with regard to the Taxing Clause.

Roberts was anti-formalist in the sense that the labels don't matter -- while the "mandate" was labeled "penalty", it was still a tax in the way it operated. Form vs function is a quintessential distinction between formalism and anti-formalism.

And with regard to realism, Prof. Dorf wasn't saying that Roberts is a realist, but that he himself (Dorf) is a realist. And by that, I'm guessing he meant it in the classic, Holmes-Llewellyn-Frank sense.

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