WSJ Mistake on Holding of Health Care Ruling

Thom Lambert —  2 July 2012

Here’s a Letter to the Editor I sent to the Wall Street Journal today:

Dear Editor:

Today’s front page article, “GOP’s New Health-Law Front,” states that the Supreme Court’s Affordable Care Act ruling  “circumvented the issue of whether the law was proper under Congress’s constitutional right to regulate commerce among the states.”  That is incorrect.  Chief Justice Roberts’ opinion emphasized that he construed the penalty for failure to carry insurance as a tax only because doing so was necessary to sustain the Act’s constitutionality.  Had the Commerce Clause authorized the individual mandate, the Chief Justice would not have endorsed what he conceded was not “the most straightforward reading of the mandate.”  The Chief Justice’s conclusion that the individual mandate exceeded Congress’s powers under the Commerce Clause–a conclusion also reached by dissenting Justices Scalia, Kennedy, Thomas, and Alito–was therefore necessary to the majority coalition’s conclusion that the penalty for failure to carry insurance was authorized by Congress’s power of taxation.  That makes it part of the Court’s holding and thus binding constitutional precedent.  While your editorial, “A Vast New Taxing Power,” correctly chides the Chief Justice for improperly expanding Congress’s taxation powers, you must give him credit for preventing a Commerce Clause ruling that would have eviscerated the notion of enumerated powers by granting Congress a general police power.


Thom Lambert
Professor of Law
University of Missouri Law School
Columbia, Missouri

Thom Lambert


I am a law professor at the University of Missouri Law School. I teach antitrust law, business organizations, and contracts. My scholarship focuses on regulatory theory, with a particular emphasis on antitrust.

6 responses to WSJ Mistake on Holding of Health Care Ruling

    Reynolds Holding 9 July 2012 at 8:05 am

    I think that your letter is incorrect. The language about the Commerce Clause was dictum, because it was not necessary to the court’s holding that the individual mandate passes constitutional muster under Congress’ taxing power. Though Roberts says the Commerce Clause language was necessary, it clearly was not.

    Dom Armentano 2 July 2012 at 2:45 pm

    Perhaps I’m just a simple economist but I just don’t get the logic of your last sentence. How (in the world) did Roberts “prevent a commerce clause ruling that would have eviscerated the notion of enumerated powers…” Clearly any commerce clause ruling in this case (without Roberts’ crazy tax justification) would have gone the other way–after all, the mandate and all of the rest of the 2600 page monstrosity was unconstitutional for the 4 dissenters–if Roberts had simply concured with their opinions. And he deserves “credit” for this? You must be kidding.


      my guess is your comment has a faulty premise: that the logic seeks to compare two voting options of the actual cjss whereas the logic may have been about what a different (liberal) cjss might have done — rubber-stamp the goverment’s commerce clause argument, with which the other 4 in the majority might well have concurred.


        ps:i am curious why an economist would consider the tax justification crazy. how is the disputed provision economically different from a tax that applies to everyone coupled with a tax credit that applies to those who are insured?

    Walter Sobchak 2 July 2012 at 1:30 pm

    So what. I say its socialism, and I say it stinks.

    Roberts has brought eternal shame on himself and his family. He should resign and take penitential orders.


    The Court said you can’t regulate an inactivity. But, similarly, how can you tax one?