Chief Justice Roberts wrote only for himself on the Commerce Clause and Necessary and Proper issues, explaining why the law was invalid on those grounds before turning to taxing issue and ultimately upholding the mandate. The key to Roberts’s analysis is that the mandate “reads more naturally as a command to buy insurance than as a tax.” It therefore had to first be analyzed (and rejected) as a Commerce enactment. It only could be analyzed as a tax through a saving construction, which only is imposed if the law would otherwise be unconstitutional. Only after that saving construction, the Court then could perform the Taxing Clause analysis.
But because constitutional invalidity must come before the saving construction which must come before the Taxing analysis, making the first step necessary to the judgment. And thus the confusion over whether this is dicta and whether there is a five-vote majority for the Commerce analysis.
Comments
Maybe not exactly the same thing, but this issue makes me think of Prima Paint Corp v. Flood & Conklin Mfg, 388 U.S. 395 (1967). In that case the Supreme Court explained that the Federal Arbitration Act is justified as an exercise of Congress’s commerce power, rather than its pre-Erie power to create general law applicable in diversity cases [the FAA was enacted in 1925]. It seems pretty clear that the latter power is what Congress was relying on (as you say, the FAA might be “read more naturally” as deriving from that power). By finding the FAA supported by the commerce power instead, the Court saved the FAA from evisceration under Erie. What’s interesting are the implications that follow from finding a statute justified under one Congressional power source rather than another. In the case of the FAA, the differences are great. Most notably, holding the FAA to be an exercise of the commerce power paved the way for the FAA to be applicable in state courts, which was arguably not the intention of the drafters. If a federal statute could be based on power X or power Y, and there are relevant differences between the implications of finding the statute supported by power X or power Y, does/should it matter whether Congress was relying only on power X or power Y? If what Congress intends is “We’re enacting this statute under power X, and if power X is not sufficient, the law should be struck down rather than justified under any other power,” must Congress make that clear? Does it really matter? Do different sources of Congressional power not generally have a different impact (the FAA example notwithstanding)?
Posted by: Roger Perlstadt | Jun 29, 2012 10:31:59 AM