In the wake of the Supreme Court’s decision in NFIB v. Sebelius, lawyers, judges, and law professors are left wondering what parts of Chief Justice John Roberts’ decision are actually binding law—and what the decision means for the future of the Commerce Clause. This is a critical question because while Roberts’ opinion adopted an interpretation of the law deeming it a “tax,” it also said that the Individual Mandate provision is not constitutional under the Commerce Clause—and that the only reason the “tax” theory is acceptable is because it does not actually force people to do anything. But since only those parts of a court decision that are essential to the holding are deemed to be binding precedent, the opinion has left many people puzzled over how much of Roberts’ Commerce Clause must be complied with, and how much of it is just dicta. This is a very important question, of course, since if his conclusion that the Mandate exceeds the Commerce Clause (a conclusion that was endorsed by the four other conservative justices) is not binding law, then we really don’t know if Congress can force people to do things in the future.
Lower courts are already expressing their confusion over what parts of Roberts’ opinion are binding. On Thursday, the Ninth Circuit issued a decision in United States v. Henry, about the constitutionality of a federal law prohibiting possession of machine guns. That law was enacted pursuant to the Commerce Clause. In footnote five of the decision, the court says,
Two days after oral argument in this appeal, the Supreme Court decided National Federation of Independent Business v. Sebelius, ___ U.S. ___, 2012 U.S. LEXIS 4876 (June 28, 2012), which held that the federal statute requiring individuals to purchase health insurance is a valid exercise of Congress’s tax power. Five justices also agreed that the Commerce Clause did not authorize this statute. There has been considerable debate about whether the statements about the Commerce Clause are dicta or binding precedent. See, e.g., David Post, Commerce Clause “Holding v. Dictum Mess” Not So Simple, The Volokh Conspiracy. We need not resolve that issue here because National Federation of Independent Business involved a requirement that individuals take action. See Nat’l Fed’n of Indep. Bus., 2012 U.S. LEXIS 4876, at *45 (Roberts, C.J.) (“Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.”) (emphasis in original). In contrast, Section 922(o) involves a prohibition of conduct. Therefore, even if National Federation of Independent Business changed Supreme Court precedent regarding the Commerce Clause, we conclude it would not overrule [a case upholding the machine gun ban].
Although resolving this question wasn’t essential in the Henry case, it is certainly a critical question for the future of constitutional law.