Thursday, June 28, 2012

The weird politicized and legally conservative Obamacare ruling (plus dicta)

Well, that was unexpected.  Supreme Court - actually, John Roberts -  rules Obamacare is legal not based on the Commerce Clause but based on the government's power to tax.  Roberts actually ruled the law is not a valid exercise of the Commerce Clause.

The weird and politicized aspect is that there's relatively little evidence in favor and some evidence against the idea that Congress was using its power to tax as a basis for Obamacare.  I think Roberts wanted to reach the outcome that he got on the Commerce Clause without causing the most disruptive overturning of a Congressional law since the Great Depression.  He got what he wanted, a limitation on the Commerce Clause.  Compare that to the SWANCC case I mentioned earlier, where there was plenty of evidence that Congress relied on the Commerce Clause and the Court majority ignored that so they could get the result they wanted without dealing with commerce issues.

The ruling on Commerce Clause advances legal conservatives position, even though the tax outcome leaves Obamacare intact.  The Medicare ruling is even more legally conservative - the power of federal government to spend money as it wishes for the public welfare has been almost unconstrained outside of First Amendment issues, but now its ability to move states in the direction it wants, with its own money, is facing a limit.

Surfing around the legal blogs, they're starting to notice that the "holding" on the Commerce Clause is actually dicta - reasoning that wasn't necessary to reach the conclusion made by the Court majority, and therefore just a statement that is no binding precedent on lower courts.  These are statements that Court actually shouldn't even make but if they do, we can ignore them in theory.  In practice, it's pretty clear where a majority of the current Supreme Court would go on this issue, so a lower court would hesitate to ignore it.

Given this tiny amount of restraint though, I guess the justices shouldn't be elected.  They're playing court politics, not politics politics.

UPDATE:  Nice post at SCOTUSblog on the Medicare issue.  Because it was a plurality but not a majority opinion, that means the plurality opinion isn't binding on future cases.  And what's up with Kagan and Breyer joining Roberts in his nonsense that the feds can't decide when to stop spending money?  This is an incredible door to judicial activism - they imply that a smaller penalty would be okay, but we'll never know what's okay except by countless lawsuits that will have to be relitigated for any new law involving funding of the states by the feds.

On the good side, and per the comments discussion, the implication here is that if a law looks like a tax, even if it otherwise suggests that it isn't a tax, then for purposes of determining whether it's constitutionally permissible it is to be considered a tax.  That goes a half-step beyond what courts usually say when they say they will search for an interpretation of a law that allows it to be constitutionally valid.