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Contentions

Was Roberts’ Opinion Only an Essay?

As Peter Wehner notes, now that Chief Justice Roberts has upheld the ObamaCare mandate as a “tax,” the administration no longer views it as a tax. Those finding solace in the fact that the chief justice, while adopting the administration’s extraordinarily weak “tax” argument, at least rejected its Commerce Clause contention, may be surprised to learn the part of his opinion relating to the Commerce Clause did not speak for the Supreme Court.

The official Syllabus notes that “Chief Justice Roberts delivered the opinion of the Court with respect to Part II, concluding that the Anti-Injunction Act does not bar this suit,” and “delivered the opinion of the Court with respect to Part III-C, concluding that the individual mandate may be upheld as within Congress’s power under the Taxing Clause.” Part III-A of the Roberts opinion – concluding the ObamaCare mandate was not valid under the Commerce Clause – was not in the portion of his opinion that represents the opinion of the Court.

You can tell how the Court’s liberal bloc views Roberts’ Commerce Clause opinion by the way Justice Ginsburg describes it in the portion of her opinion that was joined by the three other liberal justices. She calls it the “Chief Justice’s Commerce Clause essay;” depicts it as his “puzzling” attempt “to hem in Congress’ capacity to meet the new problems arising constantly in our ever-developing modern economy;” and concludes that because he ultimately upholds the mandate as a tax, she sees “no reason to undertake a Commerce Clause analysis that is not outcome determinative.”

This is legal language indicating her view that the “puzzling” Commerce Clause opinion of the chief justice can be ignored, as it is not a holding of the Court. The Court’s leading liberal has served notice how the Court will treat the chief justice’s views on the Commerce Clause if a fifth liberal is ever appointed to the Court: as an essay, not a binding precedent.

Of course, if all that is necessary to sustain any federal mandate is to accompany it with a “shared responsibility payment” for those unwilling to abide by it, not only the chief justice’s essay but the entire Commerce Clause is irrelevant. In legalese, the Commerce Clause is “not outcome determinative.”

And under the portion of the Roberts opinion that does in fact speak for the Court, the new “shared responsibility payment” power of Congress is the law of the land. It is hard to think of a broader power than the one the chief justice established, speaking for a Court supposedly concerned about overreaching its authority.



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