Did the Supreme Court limit the Commerce Clause?

As you read this post, keep these words in the front of your mind: “the opinion of the Court.”

In Part III-A of his published opinion on the Obamacare case, Chief Justice Roberts explained that he would forbid Congress from relying on the Commerce Clause of the U.S. Constitution to pass legislation to force you to buy something. Plenty of conservatives — and even a few leftists — seem to think that his opinion on the Commerce Clause is also the formal opinion of the Supreme Court. Not so.

Here’s the very first paragraph of the published ruling, taken from page 7 of the PDF file.

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, an opinion with respect to Part IV, in which JUSTICE BREYER and JUSTICE KAGAN join, and an opinion with respect to Parts III–A, III–B, and III–D.

See that highlighted text? Part III-A is where Roberts fleshes out his theories about the limits of the Commerce Clause, but that doesn’t change a damn thing. Part III-A is obiter dictum (often shortened to dictum or dicta), a fancy Latin term that means “this is a part of the written opinion where the judge yammers on about something or other, but it isn’t part of the court’s formal ruling, so it isn’t controlling precedent and you can ignore it.”

Go read the opinion, and look at the beginning of Part III-A and compare it to the beginning of Part III-C.


Roberts opinion, Part III-A Roberts opinion, Part III-C

You have to pay attention to details when you read a Supreme Court opinion. The Obamacare case did not rein in Congress’ use of the Commerce Clause. Chief Justice Roberts wrote his opinion about it, but not enough justices joined him to make it the official, binding opinion of the Court. They did join him in Part III-C, where he upheld the individual mandate by magically rewriting the law as a tax. Part III-C is indeed the opinion of the Court.

Want an even simpler explanation of what Chief Justice Roberts tried to achieve?

Commerce Clause or Taxing Power?

Always look for the opinion of the Court. Let Mark Levin explain it for you.

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