Jun 29, 2012
commented on McKenna Declares Victory: "We Achieved Our Goal of Defeating the Mandate on Commerce Clause Grounds"
@7, it was dicta, but it also shows that there are five votes on the court to strike down a law that "regulates economic inactivity." It was dicta for two reasons. First, it wasn't necessary to the decision, so regardless of how many justices did or did not sign on to that portion of Roberts opinion, it doesn't control. This is true despite the crafty wording used by Roberts, which said something to the effect of, "since the law cannot be upheld on Commerce Clause grounds, it is necessary to determine if it is a constitutional exercise of Congress's taxing power." Roberts didn't need to address the CC issue once he found a valid means of upholding the law. But the CC portions of his opinion give some red meat to the Federalist/Libertarian crowd (see McKenna's "We Won!" which is being echoed by many others).
Secondly, the CC interpretation is dicta because Roberts was writing for himself and only himself in that portion of his opinion. The liberal justices didn't sign on to that portion (section III-C) nor did the dissenters. One justice does not a majority make, therefore there is nothing binding about this interpretation of the CC. If the CC issue were an independently necessary part of the opinion, the dissenters could have signed on to that portion of the opinion and been concurring in part, dissenting in part. But it wasn't necessary, so they were left with no ability to concur with an opinion which reached a different judgment than their own.
But (and there is always a but), there are clearly five votes on the court, as presently comprised, to say that the CC cannot be used to "compel economic activity." Some academics and constitutional scholars use what they call a realist, or predictive, theory of precedent. And in that sense, this is precedential because the votes are there to rule against Congress's power on this narrow set of facts.
The important takeaway is that, more than any specific precedential force of the CC portion of the opinion, this is another data point. CC jurisprudence was dormant for fifty years until the Rehnquist court stirred things up a bit in Lopez and Morrison. Then, a decade ago, Gonzalez v. Raich seemed to indicate that the Court was still comfortable with the existing contours of its CC jurisprudence. The fact that five justices were willing to go against the conventional academic wisdom of the CC (see the NYT survey of top Con law professors) indicates that there may be traction for future CC challenges along the lines of Lopez, Morrison, and Raich. This is reinforced by Scalia's new book which, from the reviews I have seen, somewhat recants his Raich decision and calls into question Wickard, which Con law scholars would find to be a pretty radical view.
One final thought (if there is anyone still reading at this point), the argument pursued by the challengers of the ACA may ultimately work against their goal of limiting the CC. They took pains to frame the ACA as an unprecedented move by Congress. The goal of that strategy was to give the Justices cover to rule against the law without having to overturn existing precedent. This was a calculated decision since there are not five votes on this court to overturn Wickard. But in order to frame the argument this way they relied almost exclusively on the "regulation of inactivity"/ broccoli aspect of the ACA. And that simply will not be an issue in future CC cases.
Dec 11, 2011
commented on The Rick Perry Parody Ads Just Keep Coming
@9, I would say that Ennis Del Mar was most certainly gay. He allows the conservative culture of Wyoming to keep him from pursuing a life with Jack, his gay lover, but that doesn't make him not gay. Ennis gave up the one thing that might have made him happy because he was afraid of the societal repercussions.
In that way, it is perfect that Rick Perry is wearing Ennis's jacket and not Jack's, because Rick Perry can be seen as the flag bearer for the social mores that led Ennis to be confined by the culture around him. Life imitating art.