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    What if that huge conservative doctrinal achievement was mere dicta?

    What if that huge conservative doctrinal achievement was mere dicta?

    I have expressed my frustration with those who see some salvation in the supposed advancement of constitutional federalism in the ruling by Chief Justice Roberts and the four conservative dissenters that the Commerce and Necessary and Proper Clauses did not justify forcing people into commerce.

    Those rulings arguably were not essential to the decision.  Once the Court (the Chief Justice and the four liberal Justices) found that the mandate was justified under the power of Congress to tax, the Court could have stopped right there, declined to address the Commerce and Necessary and Proper Clause arguments, and the result would have been the same.  Indeed, the four liberal Justices in the majority on the tax issue were in the dissent on the other issues.

    The Commerce and Necessary and Proper Clause holdings may be deemed limited by some future composition of the Court to the unique facts of the Obamacare mandate, or worse, considered mere dicta, meaning opining by the Court which while informative is not binding on inferior or future Courts because not essential to the ruling.

    Ilya Somin makes this point as well:

    One possible reason to dismiss the importance of the Court’s treatment of these issues is that it might have been mere dictum. After all, the Court upheld the mandate based on the Tax Clause, so the other two issues were not essential to the outcome.

    Somin points to a contrary position taken by his co-blogger, Jonathan Adler, as to whether these rulings were essential and therefore not mere dicta.  Reasonable people may differ.

    Expect, as Somin does, that a future Supreme Court may consider itself bound by the Commerce and Necessary and Proper Clause rulings depending upon that Court’s own predisposition on the subject:

    Obviously, whether or not Roberts’ analysis will really have an effect on future cases depends in large part on future Supreme Court appointments and the political situation. If, for example, Barack Obama gets reelected in November and replaces one or more conservative Supreme Court justices with liberals, yesterday’s Commerce and Necessary and Proper ruling will likely be ignored or overruled.

    The great conservative doctrinal achievement which supposedly is the silver lining in the decision may be illusory.

    Obama and Democrats achieved judicial ratification of Obamacare.  Conservatives got a lecture on the Commerce and Necessary and Proper Clauses which, while satisfying, may have been just a lecture.


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    PhillyGuy | June 30, 2012 at 9:39 am

    I just fear that Republicans will get wrapped up in the recriminations and acrimony and forget to work to get more of us elected in November. That their spirit is so deflated from this, that they can only look backward.

      jimzinsocal in reply to PhillyGuy. | June 30, 2012 at 11:31 am

      I agree and mentioned that in a thread at NRO. All the granular stuff is a great debate among legal folks but it wont change things for November. How many times have we seen republicans lose on an issue because they got too wrapped in ideology to the point voters eyes roll.
      A perfect example is Immigration reform.
      While our Senators fiddle with fine tuning and tactics…Obama basically walks away with the perception that he is doing something about the issue.
      That he won the talking point is impossible to deny. He even got the added bonus of basically taking the economy off the news focus.
      Id hate to see the same thing happen with Obamacare.
      Rather than endless legal analysis…we need a simple and effective way to explain what happened in the court that Johnq Averageamerican understands and can see some Republican position/platform that makes better sense to him.
      Sadly, this is exactly the sort of thing Newt could have done far better than Romney….given Romney’s unique relationship with a government healthcare system.
      If all Romney can offer as a plan is repeal of Obamacare? Its not going to work. Thats something Congress can do now without Romney. Dump the mandate via Congress.
      In other words…Romney shouldnt run on whats wrong with Obamacare but rather a solid alternative that seems to solve healthcare issues without government intrusion into our lives and the lives of busnisses everywhere.
      Lets not repeat the mistake democrats made around the Budget mess by simply saying (as they did with Republican effort) all we know is we dont like theirs.
      So yeah…understanding what happened in court is interesting it wont win an election unless we fashion a plan…an alternative that sells well to voters.

    jregan11 | June 30, 2012 at 9:40 am

    The remedy for tax is Tea.

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