It’s amusing to hear Democrats squawk about the possibility that their grand scheme for taking over the American health care system could be knocked down by the Supreme Court because of a strict reading of ObamaCare when President Obama, Democrats in Congress, the law’s architects, and assorted flunkies have all been lying to the American people for years about the nature of their ill-conceived little law. These people have no appreciation for irony.

At the heart of King v. Burwell, the latest challenge to ObamaCare to be accepted by the Supreme Court, are five words: “Exchanges established by the State.” The headline of a July 25 article at Forbes by Michael F. Cannon says it all: “ObamaCare Architect Jonathan Gruber: ‘If You’re A State And You Don’t Set Up An Exchange, That Means Your Citizens Don’t Get Their Tax Credits’”

Cannon’s article is well worth reading. It has a lot of germane links, three updates, a splash of humor, and two must-see videos, including a challenge to Mr. Gruber. Cannon quotes Gruber stating that the feds must provide a “backstop” exchange for the states that fail to provide their own. Congress therefore expected the states to actually duplicate the work of the feds. That’s lousy economics; it’s wasteful even by federal standards.

Congress displayed contempt for the states (and their taxpayers) in calling for the states to establish exchanges. If all the states had bought into ObamaCare, it would have entailed 50 separate efforts all doing the same thing: developing a website. Think of the cost of multiplied by 50. Were Congress the least bit interested in the economics of ObamaCare, they would have paid for developing the software and just given it to the states. Or, better yet, Congress would have kept the states out of it and had the feds run the exchanges, which is what they ended up doing in the 36 states that didn’t opt in. Having each state develop its own ObamaCare software is like expecting every business to write its own software for payroll, inventory, taxes, etc. … absurd.

The whole idea of state exchanges is stupid. Yet, state exchanges were the only exchanges that Congress made eligible for subsidies, which is why the feds are once again heading back to the Supreme Court to defend their wretched law. Had Congress been smart enough to recognize the need to ease the way for the states by giving them free software, they might have gotten better buy-in from the states. But the Pelosi-Reid Congress was too brain-dead to see that.

So why would Congress call for state exchanges? Perhaps Democrats wanted to further enmesh the federal and state governments, further blur the boundaries between the two. You see, the existence of the several states is an irritant to statists, like Democrats. Thankfully, most of the states resisted the invitation to take part in ObamaCare, and they were smart to have resisted. Already, federal unfunded mandates are proving expensive for the states.

In my last article on ObamaCare, a commenter by the name of Perspicacious made an interesting comment; it began by quoting from my article:

“all those references in ObamaCare to “interstate commerce,” the original justification for the mandate, are dead code.”

As a legal matter, this is not true. Because the Court upheld the law as an exercise of the taxing power, those musings on the Commerce Clause to which five justices agreed do not actually constitute a “holding” of the Court. It’s just excess verbiage from a legal point of view. The language on the Commerce Clause could have been omitted from the opinion and it would have the same legal effect.

The consequence is that if one of those five justices is replaced by a liberal, the new court need not treat the discussion in the opinion on the Commerce Clause as precedent. On the other hand, had the Court actually struck down the law by reason of the Commerce Clause, then that holding would have constituted binding precedent.

Roberts screwed the pooch on that one.

Hmm, did Justice Roberts really screw the pooch? What Perspicacious is surely referring to is obiter dictum; i.e. “something said in passing” and not essential to the line of reasoning that leads to the decision in a case. This issue, however, might not be quite as clear cut as Perspicacious thinks.

Although neither “obiter” nor “dictum” nor “dicta” appear in the opinions that comprise NFIB v. Sebelius, in her dissent Justice Ginsburg does refer to Roberts’s dilations on the Commerce Clause as an “essay” (PDF-page 102), which would suggest that she thinks they are obiter dicta. Ginsburg doesn’t think Roberts’s analysis of the Commerce Clause is “outcome determinative” (footnote 12).

But the justification for the individual mandate in the text of ObamaCare is “interstate commerce.” ObamaCare refers to the $95 exaction not as a “tax,” but as a penalty (p. 244-5). Redefining the penalty as a tax was a “saving construction” that could only be arrived at by first addressing and then discarding the law’s stated justification. Hence, Roberts’s ruling flowed from a line of reasoning that arose from his consideration of the Commerce Clause. One wonders if the Chief Justice regards his determinations as obiter dicta, an “essay,” “excess verbiage,” dead code, or the law of the land. (See section D on PDF-page 50 of NFIB.)

One would think that when one reads unambiguous statements by a Chief Justice in a Supreme Court ruling that it would be binding, but some seem to think not. Perhaps the reason the mainstream media continues to refer to the mandate to buy insurance as though it had never been struck down is because they think Roberts’s determinations were obiter dicta. (Are they perspicacious or what?)

I mentioned obiter dictum in an article last year on Sissel v. HHS, an Origination Clause challenge to ObamaCare. The Pacific Legal Foundation (PLF) brought the Sissel case, and in their September 2012 Press Release, we read:

In addition to its Origination Clause argument, PLF’s amended complaint asks the courts to recognize that the NFIB decision set a clear limit to federal regulatory power under the Commerce Clause (Article I, Section 8). Specifically, PLF seeks to clarify that a binding precedent was created by the five justices who held that Congress lacked Commerce Clause authority to order people to engage in commerce by purchasing health insurance. [Link added.]

Even if the courts make clear that Roberts’s ruling is in fact binding, is that enough? Sure, it would be binding on lower courts and on Congress, but it wouldn’t be binding on future Supreme Courts. If America wants to constrain Congress and limit its power, then we need an amendment.

For real Americans, the very idea that Congress would even contemplate commanding citizens to buy a product is appalling. And the central government “taking over” one-sixth of the economy smacks of corporatism, even fascism. So one hopes that the courts will clarify just how binding Justice Roberts’s “essay” on the Commerce Clause really is. But even if it is a binding “holding,” that’s not enough to protect us from future Supreme Courts.

If the Supreme Court does strike down ObamaCare in its entirety in the appeal of King v. Burwell, then that would presumably obviate hearing Sissel v. HHS, which is where I had hoped to get a little clarity on what’s binding in the NFIB v. Sebelius ruling. ObamaCare sometimes seems like little more than a jobs program for lawyers; perhaps Democrats considered it part of the stimulus.

(NOTE: For more on obiter dictum in NFIB, read Jonathan Turley, Scott Lemieux, and Lawrence B. Solum.)

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