Dicta in the NFIB v. Sebelius (Obamacare) Decision—by George Zadorozny, Attorney-at-Law—Practice Limited to Legal Research, Writing, and Consulting for Attorneys—AV-Rated, J.D. Northwestern ’82, B.A. Yale ’78, Carlton Fields ’82′-86—gzesq@aya.yale.edu

In a court opinion, dicta is whatever is logically unnecessary in order for the ultimate decision on a question properly before the court to stand.  Lisa M. Durham Taylor, Parsing Supreme Court Dicta to Adjudicate Non-Workplace Harms, 57 Drake L. Rev. 75, Part III at 90-104 (2008); Broadwater v. State, 909 A.2d 1112, 1123 (Md. App. 2006): “Most significantly, the observations in the dicta are not in any way important to the actual decision in the case.  The holding [i.e., the ultimate decision on a question] would not have been affected in any way if the dicta had been totally excised from the opinion.  Three weeks of law school should teach us that such gratuitous dicta does not take on the mantle of binding precedent.  Some dicta, of course, may turn out to be a harbinger of future change, but it does not, in and of itself, become a part of stare decisis.”  By definition, dicta is not binding precedent; only the holding is.[1]

In my opinion, Chief Justice Roberts’ entire Commerce Clause analysis in the Affordable Care Act (Obamacare) case is dicta, even though four other Justices–the dissenters–essentially agreed with it.  NFIB v. Sebelius, 567 US — (June 28, 2012), Part III-A-1, slip opinion at 17-26.

The same is true of Chief Justice Roberts’ entire analysis of the Necessary and Proper Clause.  Id. at Part III-A-2, slip opinion at 27-30.  Accordingly, what I say in the rest of this essay about Chief Justice Roberts’ Commerce Clause analysis also applies to his Necessary and Proper Clause analysis.

(And yes, there is U.S. Supreme Court precedent that holds that if necessary we can look to dissenters to provide a majority on a particular issue before the court.  Moses H. Cone Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 17 (1983); see Marks v. United States, 430 U.S. 188, 193 (1977).  This in fact was done in the NFIB decision on the second issue in that case.  Specifically, the Affordable Care Act authorized the federal government to cut off 100% of the entire federal funding for the entire Medicaid program of any state that refused to join in the Act’s expansion of Medicaid coverage to millions of the uninsured.  The four dissenters viewed this threat as unconstitutionally coercive.  This view of the four dissenters was added to the identical view of three Justices–Kagan, Breyer, and Roberts–to create a 7-2 majority holding the cutoff threat unconstitutional.)

So why is the entire Commerce Clause analysis dicta, even though five Justices–Roberts and the dissenters–support it?  Because in the words of the above Broadwater case, “The holding would not have been affected in any way if the dicta had been totally excised from the opinion.”

Specifically, the 5-4 holding of the Supreme Court on the individual mandate (the requirement imposed upon the uninsured to buy minimum-coverage health insurance policies) is that the tax-penalty for ignoring it is constitutional because it is authorized by the Constitution’s Taxing Clause.  That clause gives Congress the power “to lay and collect Taxes.”  U.S. Const., Art. I, § 8, cl. 1.  Therefore the individual mandate’s tax-penalty is constitutional.

The above 5-4 holding–that the Taxing Clause makes the individual mandate’s tax-penalty constitutional–is logically sufficient in and of itself to decide the constitutional issue before the court.

Therefore Chief Justice Roberts’ entire analysis of why the Commerce Clause does not breathe constitutional life into the individual mandate’s tax penalty is simply unnecessary.

That is, given that a majority of the court decided that the Taxing Clause does breathe constitutional life into the individual mandate’s tax-penalty, of what use is Roberts’ analysis of why the Commerce Clause fails to do so?  The answer is, no use at all in deciding the issue before the court.  It’s no use at all because it is simply not necessary to support the ultimate conclusion of the court  that the individual mandate’s tax-penalty is indeed constitutional.   Therefore, Chief Justice Roberts’ entire analysis of the Commerce Clause is dicta.

Paraphrasing the words of the above Broadwater case, “The holding [that the Taxing Clause makes the individual mandate's tax-penalty constitutional] would not have been affected in any way if the dicta [that the Commerce Clause does not make the individual mandate's tax-penalty constitutional] had been totally excised from the opinion.”

It wouldn’t matter if all nine Justices had joined in Robert’s discussion of the Commerce Clause.  For the reasons just stated, the entire Commerce Clause discussion would still have been dicta.  And again, by centuries-old definition, dicta is not binding precedent.  Rather, only the holding is binding precedent.

On page 37 (main text and footnote 12) of her concurrence/dissent, Justice Ginsburg finds the very existence of Chief Justice Roberts’ Commerce Clause discussion “puzzling,” because it is “not outcome determinative.”  This is just another way of saying that it is dicta and not a holding.

Roberts tries to get around this by stating that “[w]ithout deciding the Commerce Clause question, I would find no basis to adopt such a saving construction [of the individual mandate's penalty as a tax].”  Roberts opinion, Part III-D, page 44.  This doesn’t work to transform the Commerce Clause dicta into a holding for these reasons:

First, such an argument assumes that whenever a court opinion argues that provision x of the Constitution fails to support the constitutionality of a law, therefore necessitating resort to provision y of the Constitution in order to find the law in question constitutional, then the provision x argument becomes part of the holding.  Such an assumption simply contradicts the centuries-old definition of dicta, namely, that dicta is everything in a court opinion not logically necessary for the ultimate decision on an issue properly before the court to stand.

Second, even if the Commerce Clause issue had never been mentioned in the court’s opinion, there is no doubt that in finding the individual mandate’s tax-penalty constitutional under the Taxing Clause, the court would have had the legitimate power “to adopt such a saving construction [of the individual mandate's penalty as a tax].”  Roberts opinion, Part III-D, page 44.  Therefore Roberts’ “necessity” argument fails (i.e., the argument that the Commerce Clause analysis is part of the holding because that clause’s inability to make the individual mandate constitutional was a necessary prerequisite to construing the penalty as a tax that is constitutional under the Taxing Clause).

Finally, it is also worth noting that no other Justice joins Roberts in his assertion that “[w]ithout deciding the Commerce Clause question, I would find no basis to adopt such a saving construction [of the individual mandate's penalty as a tax].”  (Nor does any other Justice join in any other portion of Roberts’ Part III-D).  With no support from any other Justice for this “necessity of the Commerce Clause analysis” assertion, the argument that this assertion transforms Roberts’ Commerce Clause analysis into a holding is considerably weakened.[2]

Nor can any one or more Justices of the Supreme Court magically transform dicta into a holding by merely asserting that the dicta is a holding.  “A judge’s power to bind is limited to the issue that is before him; he cannot transmute dictum into decision by waving a wand and uttering the word ‘hold.’”  United States v. Rubin, 609 F.2d 51, 69 (2d Cir. 1979) (Friendly, J., concurring), quoted in Pierre N. Leval, Judging Under the Constitution: Dicta About Dicta, 81 N.Y.U.L. Rev. 1249, at 1249 and at 1257 (2006).[3]

Therefore Chief Justice Roberts’ attempt to do exactly that cannot succeed:  “The Court today holds that our Constitution protects us from federal regulation under the Commerce Clause so long as we abstain from the regulated activity.”  NFIB, Part III-C, slip opinion at 41-42.  This is utterly ineffective for the reasons set forth above, and for those same reasons it makes no difference that the four dissenters agree with the substantive statement of purported law here.

Nor does it make any difference that the four other Justices—Ginsburg, Sotomayor, Kagan, and Breyer—joined in Roberts’ Part III-C (which contains Roberts’ above-quoted “[t]he Court today holds” statement), given their unyielding refutation of Roberts’ Commerce Clause and Necessary and Proper Clause analysis.  Ginsburg opinion, Introduction and Parts II and IV, slip opinion (Ginsburg) at 1, 12-31, and 37 (Commerce Clause); and Part III (Necessary and Proper Clause), slip opinion (Ginsburg) at 31-36.

I will conclude by quoting the words of the distinguished judge Pierre N. Leval of the United States Court of Appeals for the Second Circuit:

“What about Supreme Court dicta? Some who would agree with my point as applied to the inferior courts would assert that things are different when it comes to the Supreme Court.  It is sometimes argued that the lower courts must treat the dicta of the Supreme Court as controlling.  Various reasons are given: Great respect is owed to the Supreme Court; it always sits en banc, assuring that all of its Justices have participated in whatever it decides; its small docket means it will not likely hear enough cases to cover any area of law by its holdings.

“I certainly agree that great respect is owed to the Supreme Court.  It is indisputably supreme among courts.  By the same token, however, it is but a court.  It may make law only in the ways in which a court may make law. Its constitutional function is to adjudicate.  Its holdings are without doubt the law of the land. Its dicta? Anything the Supreme Court says should be considered with care; nonetheless, there is a significant difference between statements about the law, which courts should consider with care and respect, and utterances which have the force of binding law.  The Supreme Court’s dicta are not law.  The issues so addressed remain unadjudicated. When an inferior court has such an issue before it, it may not treat the Supreme Court’s dictum as dispositive . . .

“I am not counseling disrespect for a higher court, least of all the Supreme Court.  I am saying only that a lower court has a constitutional responsibility to decide the case in accordance with law.  Dictum is not law.”

—Pierre N. Leval, Judging Under the Constitution: Dicta About Dicta, 81 N.Y.U. L. Rev. 1249, 1274–75 (2006).


[1]  As did the Broadwater court quoted in the main text, very frequently courts use the word “holding” to mean simply the ultimate decision on a question properly before the court (e.g., “the individual mandate’s tax-penalty is constitutional”).  However, a more correct meaning of “holding” comprises both (a) such an ultimate decision and (b) only those reasons supporting that decision which (i) are expressed in the court’s written opinion and (ii) are the only reasons logically necessary to support the ultimate decision.

That is, “the binding portions of a court’s opinion encompass both its ultimate conclusions and the reasoning employed to get there.” Lisa M. Durham Taylor, Parsing Supreme Court Dicta to Adjudicate Non-Workplace Harms, 57 Drake L. Rev. 75, 96-97 (2008), citing Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 66–67 (1996) and two other Supreme Court cases (emphasis added).

One case can easily have more than one holding, because where—as is typical—there are multiple questions in a case, each decision on each question is a holding.

[2]  However, this weakening is a matter of practicality rather than logic, since in logic the only true inquiry is whether the words in question constitute dicta, when measured against the definition of dicta.  This is an objective standard.  Therefore even though all nine Justices could assert that something is dicta, nevertheless if it is objectively a holding, then a holding is what it is.  Similarly, even though all nine Justices could assert that something is a holding, nevertheless if it is objectively dicta, then dicta is what it is.

Nor do the special, intricate “plurality opinion” rules under which a single Justice’s reasoning can sometimes constitute the holding of the court apply here.  Marks v. United States, 430 U.S. 188, 193 (1977) (“[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds . . . .’ ” [internal citation omitted]).  “[T]he number of Justices adhering to the narrowest rationale does not affect the precedential value ascribed to it.  A single Justice’s rationale, even one ‘joined by no other Justice, [may be] nonetheless binding precedent under Marks.’ ”  W. Jesse Weins, A Problematic Plurality Precedent: Why the Supreme Court Should Leave Marks Over Van Orden v. Perry, 85 Neb. L. Rev. 830, 837 (2007), citing Grutter v. Bollinger, 539 U.S. 306, 325 (2003) on the point that under Marks‘ “plurality opinion” rule, sometimes just one Justice’s reasoning can constitute the holding of the entire Supreme Court.

Perhaps the most famous case in which this occurred is the Ten Commandments monument case, in which only Justice Breyer’s reasoning became the holding of the court.  Van Orden v. Perry, 545 U.S. 677 (2005).  The specifics of how and why this happened are well explained in Professor Weins’ above-cited article, at 843-852.  And again, “the binding portions of a court’s opinion encompass both its ultimate conclusions and the reasoning employed to get there.”  Lisa M. Durham Taylor, Parsing Supreme Court Dicta to Adjudicate Non-Workplace Harms, 57 Drake L. Rev. 75, 96-97 (2008), citing Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 66–67 (1996) and two other Supreme Court cases (emphasis added).

[3]  The word “dictum” is a somewhat old-fashioned synonym for “dicta.”  Traditionally, “dictum” was the singular form and “dicta” the plural, but this Latinate distinction has largely disappeared in modern legal discourse.

====================================================================

Above comment written by me, George Zadorozny, Attorney-at-Law.  J.D. Northwestern ’82, B.A. Yale ’78, Carlton Fields ’82-’86.  AV-Rated by Martindale-Hubbell.  Since 1986, I have limited my practice to legal research, writing, and consulting for attorneys.   If you are an attorney, I can help you with all of your legal research and legal writing needs, and can also brainstorm and strategize cases with you.  My complete and unabridged résumé can be found by clicking on the “About” tab on this blog (Lawthinker), and is also at http://gzesq.wordpress.com/.  My mini-résumé is at www.georgezadorozny.com and also at LinkedIn.

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