Monday, July 30, 2012

The Roberts Decision

The Roberts Decision as it has come to be described, seems to have undone the ability of even the most distinguished legal analysts to explain even the basics of how legal decisions work.  An appellate decision contains a holding, which is law, and dicta which are not law but may be persuasive in pleading other cases, and obiter dicta, which is a distinguished form of ranting and is neither law nor particularly persuasive in pleading cases.

In this case the holding was that the Affordable Care Act is constitutional.  That's it.  That was the holding.  The dicta is that it is constitutional because it is a tax rather than a penalty and thus within Congress' power to impose taxes.  The obiter dicta is everything else.

There was a second holding limiting the power of the federal government to coerce states by withholding only partially related federal money from them as punishment for non-participation in a particular program.

The rest of what everyone has said and written about the case is not about the holding and not about the law.    Everything everyone else wrote about it, including Roberts, is just obiter dicta, conversation.

But it was a big case, both controversial and political.  So everyone in the media had to hash it over and chew on it and opine.  So much was said and much was written.  But about very little.


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