U.S. Supreme Court Upholds Affordable Care Act in 7-2 Ruling

Anything they want… nope. The tax part is cute, but as an example, if the gist of the law is to allow slavery, then nopers. Just because the tax angle avoids standing, it does not follow that any and all other elements of the legislation have the same property.

For any law Congress needs to show they have the authority to create it. I thought that the initial SCOTUS case affirmed that the ACA was authorized via the tax clause of the Constitution. There are obviously a ton of things in the ACA that have nothing to do with taxation. But at the heart of it, it was considered a revenue bill which is why Roberts took great pains in his opinion to first find that the individual penalty was not a tax (so that there was standing by the plaintiffs) and then turned around and ruled that the penalty was in fact a tax because it was intended to raise revenue to fund the exchanges. The gist of the ACA was not create a tax, it was to provide insurance coverage to the uninsured.

So what now prevents Congress from a passing a law to require that every US household purchase at least one electric vehicle. There will be a federal dealership set up to sell the vehicles with each state having an option to build their own dealership. There will be restrictions on the type of electric vehicle sold (no motorcycles). There will be subsidies made available for people with incomes below a certain threshold. There will a penalty of $0 will be imposed upon anyone who does not purchase an electric vehicle. This law is now being passed using the tax clause, exactly like the ACA. However, nobody can challenge the law as they don’t have standing because according to the ruling in the new case, there are no damages to any party.

So my original question stands, who would have standing to challenge the constitutionality of the law? If no one has the standing and thus can’t challenge a law, what prevents Congress from using the tax clause to pass any sort of non-sense they want?

In fact, let’s make the stakes higher. Let’s pretend that Congress passes a voter law requiring that a federal ID must be shown when voting. The penalty for non-compliance is a $0 penalty. The “revenue” from the penalty is used to fund a new Bureau of Voter IDs. Federal IDs are issued from this BOVID for a fee and that fee is subsidized based upon income levels. This law is passed using the tax clause since the revenue from the penalty is intended to fund BOVID. However, since the penalty is $0, no one can claim damages from the tax and thus the law can not be Constitutionally challenged. Same questions as above.

Well for the voting thing the penalty would be not being able to vote, which is constitutionally protected.

But for the electric car thing, that’s more applicable. Although I guess a mandate with no penalty basically isn’t actually a mandate. Like, hubby & I could continue driving our ICEs and replace them with more ICEs and pay $0 penalties indefinitely.

And if they raise the penalty to $3.50 then we have standing to challenge.

It appears to me that nobody has standing (at least with regard to the mandate) because nobody suffers a direct harm.

If I don’t want to buy an electric car, I just wouldn’t buy an electric car. There is no penalty. I can’t see a reason why anyone would want to sue over the mandate, do you?

But, maybe I don’t like the idea that Congress is providing a subsidy for electric cars in the bill, can’t I sue to change that? No. Congress currently provides subsidies for electric cars. I’m sure some people think that’s dumb. But they can’t get courts to overturn it because they don’t have standing. They have to work through the political process.

So here is the heart of my question, the ACA was established under Congress’ ability to issue taxes in the Constitution. The individual mandate and the un-severable subsidies in the ACA are directly tied to the revenue production penalties that Roberts’ opinion considers to be a tax. Therefore, the mandate and exchanges can only exist as long as Congress has the authority to tax. Well, Congress reduced the tax to $0 so is there really a tax? SCOTUS didn’t rule on that, they ruled that the plaintiffs didn’t have standing because they didn’t have damages because the tax is $0. So, prima facie, it would appear that Congress exceeded their authority to institute the individual mandate and the subsidies by no longer having a tax. However, the new SCOTUS ruling implies that a $0 tax is still a tax and gives Congress authority to write the law. The new SCOTUS ruling makes it very clear that a $0 tax can’t be challenged because there are no damages. Therefore, if the Constitutional challenge to the law is based upon the tax, but a tax of $0 causes no damage, so who has standing to make a Constitutional objection to the law that Congress exceeded their authority under the tax clause? If the answer is nobody, the logical conclusion is that any law written with the authority of the tax clause can’t be challenged if the tax is $0. That doesn’t seem right so there must be some party who can challenge that Congress exceeded their authority. But who?

Why wouldn’t an individual, who is forced to purchase more insurance than they want or none at all, have standing? They are harmed by not being a able to purchase an insurance policy that was previously available but falls between an ACA compliant plan and nothing.

You provided two examples. In both of those, Congress would be fully within its powers to pass the laws without the $0 dollar tax. So adding the tax had no effect.

Do you have an example where Congress could shelter something that the SC would normally overturn but you think would be sheltered by this $0 tax?

Good question and I think the original SCOTUS case was submitted in that manner. It was some group that represented small business owners. I don’t know who made this latest challenge, Texas maybe? So maybe the suit could be brought by different plaintiffs?

Yes, how about the ACA? It was specifically authorized under the tax clause, not the commerce clause or anything like that. Maybe Congress has the authority to pass large portions of the ACA via other powers, but they didn’t use them. In my examples, I explicitly state that Congress is using the tax clause to pass the voting law the same way they did with the ACA. I think that a voting law would be overturned by the SCOTUS because how voting is done has always been left up to the states. IANAL, so I don’t understand the nuances here and I will gladly admit that I could be way off base with the examples. Regardless, it seems like the Supreme Court has created a loophole whereby Congress can pass laws where their authority to create the law can’t be challenged.

So a different example. Congress passes a law that states everyone who lives east of the Mississippi river must move to the west of the Mississippi river. The penalty for not moving is $0. The federal government will purchase all land that is sold at fair market value as of whatever date and it is now illegal to sell any property east of the Mississippi to anyone except the federal government. This is passed using the tax clause because there are no other explicit powers that allow Congress to pass this legislation (that I know of). The states don’t have standing apparently because they don’t have any damages.

I don’t really want to debate some sort of hypothetical law, I just want to know if there is now a Constitutional loophole that gives Congress unlimited authority like it looks like just happened.

The answer to your question of whether there is a “constitutional loophole” is to find something that would fit through this loophole.

Congress can pass all the non-binding resolutions it likes. If it tries to pass a law whose only penalty is a $0 fine, then everybody ignores the law. People vote without ID, people don’t move. Nobody has standing because everyone simply ignored the law.

(Regarding voting, for federal offices,

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

Hence, for example, the 1965 Voting Rights Act.)