Much literal and blogospheric ink has already been spilled over the question of whether the Court’s conclusion that the Commerce Clause does not authorize the individual mandate is part of the holding or mere dictum. I think, however, that there is a fairly simple solution to the problem: Just look at what the Court itself said the holding was. In Part III-C of Chief Justice Roberts’ opinion, which is a part of the opinion of the Court joined by the four liberal justices, Roberts writes: “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.” The fact that the four liberals joined this part of the opinion suggests that they recognize that the Chief Justice’s reasoning about the Commerce Clause is part of the holding, even though they don’t agree with it. Perhaps they joined this part because they realize that this conclusion did in fact enjoy the support of five justices (Roberts and the four conservative dissenters). In any event, it seems to me that the official Opinion of the Court is the best possible authority on what is and is not part of the holding.
It is not completely clear whether this statement is meant to cover the Commerce Clause as augmented by the Necessary and Proper Clause, as well as the former alone. But given the reasoning of the rest of Roberts’ opinion (which covers both), I think the former interpretation is more likely.
I should add that I owe this point to co-blogger Jonathan Adler, who could not post it himself right now, and therefore authorized me to do it.
There are also other reasons for concluding that the Commerce Clause reasoning is part of the holding as well. John Elwood offers a more elaborate discussion of some of the relevant issues.
UPDATE: Co-blogger David Post responds to this post here:
That cannot be the right answer. A court’s holding defines the scope of its power; holdings must be obeyed, by citizens and by other (lower) courts. Dicta is the stuff that doesn’t have to be obeyed. Saying “just look at how the Court itself defined its holding” is like saying: “Just let Congress decide on the scope of its powers.” Courts cannot be allowed to define the scope of their own power because if they are, they’ll do what all institutions do when allowed to define the scope of its own power: expand it unmercifully. Of course Roberts and the 4 Justices who are with him on this question would like it to be called a “holding”! They think they’re right, and they’d like to have their view on the matter obeyed by others. But the holding/dictum distinction prevents them from doing that, over and over and over again. Courts don’t have to be obeyed when they propound on something they didn’t have to propound upon for the purpose of deciding the case the way they decided it. To decide that the mandate is within Congress’ taxing power, they didn’t have to decide that it is not within its Commerce Clause power.
I remain unpersuaded. The distinction between holding and dictum is an issue of technical legal doctrine. The Supreme Court is the ultimate arbiter of such issues in the US federal courts. If it were not, lower courts could disobey Supreme Court decisions they disagree with simply by declaring that they are dicta rather than holding. Moreover, the Supreme Court has issued many decisions expounding on what qualifies as dictum or holding. It would make little sense for them to do so if they did not have the power to define the difference.
It is also worth noting that the section of Roberts’ opinion I refer to was joined not by “the 4 Justices who are with him on this question,” but by the four who do not. The latter, too, recognize that the Commerce Clause is part of the holding.
David claims that his position is supported by the Federalist Papers, which stresses the need for constraints on institutional power. Of course the Federalist never says that courts lack the power to define the distinction between dictum and holding. Federalist 78 specifically indicates that “[t]he interpretation of the laws is the proper and peculiar province of the courts.” The holding-dictum distinction is just one facet of “the interpretation of the laws.” Part of the task of interpreting the Constitution and statutes challenged as unconstitutional is determining what reasoning is needed to explain why they are upheld or struck down.
Allowing the Court to determine the scope of its own holding hardly makes its power unlimited, certainly not more so than the power to declare laws unconstitutional in the first place. There are, in fact, many other constraints on judicial authority, such as the nomination process and the courts’ dependence on other branches of government to enforce their decisions. Federalist 78 implicitly pre-refutes David’s argument as follows:
Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments….
It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body.
Similarly, [i]t can be of no weight to say that the courts, on the pretense of a holding, may substitute their own pleasure for the reasoning actually needed to resolve a case. One can argue that the Court’s definition of its own holding is wrong, just as one can argue that the holding itself is wrong. But, in a hierarchical judicial system, lower courts cannot ignore the former any more than they can ignore the latter.