From how I understand it the ACA was a passed law which was constitutional. Then a law that was passed which repealed one part of the ACA. Without that part the ACA would be unconstitutional. So there is a move for the court to strike down the ACA.
My question is why doesn’t that strike down the second law that causes the issue instead of striking down the ACA?
My guess is because that was not the issue before the court. The issue was if the ACA was unconstitutional given the repealing law. The court has to answer the question it’s asked.
My current observation is that John Roberts continually jumps through hoops of logic to avoid bringing the court into the political arena - basically swinging judgements to ensure the court does not end up as activist judges doing the dirty work that really should be done legislatively. The entire previous ACA decisions were specifically this. So don’t be surprised if he does not instead rule exactly as you ask, that changing a constitutional law to an unconstitutional one is in itself unconstitutional. Or that if a set of provisions are constitutional once and unchanged, they don’t become unconstitutional because something else changed.
Congress has the ability to pass laws to modify existing laws, there is no controversy about that. Congress also has the ability to pass laws to create or eliminate taxes, there is no controversy about that either. The court must look at the Obamacare act as it exists now. If it is unconstitutional without the tax, then the court has no authority to reinstate the tax, only congress can create a new tax.
What logical or legal reasoning could possibly be used to justify ruling a statute unconstitutional because it is not itself violative of the Constitution but only has the secondary effect of rendering another law unconstitutional? For a law to be unconstitutional it has to violate a specific provision of the Constitution. What specific part of the Constitution did the repeal of the penalty violate?
And the idea that a law that is once Constitutional is always Constitutional would completely upend our entire legal system. First of all, all laws are presumed Constitutional until a court decision finds otherwise. So every law that was ultimately found to be unconstitutional was at one time, even if only in the most technical legal sense, Constitutional. Second, what if a law is found Constitutional but that decision is later overturned by another court? And what if that decision is again overturned
Apologies. The page jumped on me and posted my reply before I was finished
What logical or legal reasoning could possibly be used to justify ruling a statute unconstitutional because it is not itself violative of the Constitution but only has the secondary effect of rendering another law unconstitutional? For a law to be unconstitutional it has to violate a specific provision of the Constitution. What specific part of the Constitution did the repeal of the penalty violate?
And the idea that a law that is once Constitutional is always Constitutional would completely upend our entire legal system. First of all, all laws are presumed Constitutional until a court decision finds otherwise. So every law that was ultimately found to be unconstitutional was at one time, even if only in the most technical legal sense, Constitutional.
Second, what if a law is found Constitutional but that decision is later overturned by another court? And what if that decision is again overturned by an even higher court? That process can take years or even decades before a final resolution. And hypothetically speaking no matter of Constitutional law is ever truly final. SCOTUS can ultimately overrule any lower court and even itself at any time.
Lastly, in certain instances what is Constitutional can depend on facts or conditions that can change over time. For example, what constitutes “cruel and unusual” under the Eighth Amendment has changed with social norms. That kind of adaptability is an important feature of our legal system and many would argue necessary to achieve just results.
Consider the following hypothetical - Specialwidget is manufactured only by one company and only in state A. Congress passes a law regulating Specialwidget in some way under its power to regulate interstate commerce. After that law is passed, the 49 other states besides state A pass laws prohibiting the sale or possession of Specialwidgets as part of their powers to regulate health, safety, and welfare. Therefore Specialwidgets are no longer a subject of interstate commerce and Congress no longer has the Constitutional authority to regulate Specialwidgets. Should the laws of those 49 states be struck down because even though they were otherwise Constitutional they had the effect of rendering the Federal law unconstitutional after the fact? It may be an oversimplified and unlikely scenario but the analogy is still on point.
Moved to Great Debates.
Colibri
General Questions Moderator
This isn’t how the commerce clause works. But no matter, I think the fact pattern isn’t clearly being presented.
The mandate was ruled unconstitutional on the grounds that it was argued. Because there was another way to construe the mandate as a tax, the saving principle allowed the court to do so and therefore as a tax it was fine. Congress then removed the tax. The idea is that the saving principle no longer applies, so the rationale held by the court already, that the mandate is unconstitutional, should hold.
Then if that is true, because the government has said that the mandate is not severable from the whole of the ACA, then the whole of the ACA must fall. This last one is the part that I think is a stretch. Everything up to this point I think is fairly solid. But I suspect that there will be some other saving principle construction that will come into being to preserve the rest of the ACA.
Regardless, the mandate as a commerce clause tool, is clearly unconstitutional. As a tax though, congress can force you to buy whatever they want.
How exactly is that not how the commerce clause works? Congress has no Constitutional authority to regulate commerce in a good that is purely intrastate and has no substantial relation to interstate commerce. I admit freely the hypothetical is simplified but per the hypothetical the manufacturing and sale of Specialwidgets occurs entirely intrastate and cannot even become a part of interstate commerce since it is contraband in every other state.
And Congress was free to include a severability clause in the legislation but failed to do so. That absence, even if by oversight, is not easily dismissed as inconsequential.
It’s your hypothetical, but it wouldn’t surprise me if the court were to find the cumulative effect of the manufacture of something would have an effect on interstate commerce, either in the sourcing of materials, or the lack of sourcing of materials. This is a digression I suppose.
I’m not even sure it’s a saving principle issue. In ACA v.1, you have a mandate that, we think, Congress views as an essential (and unseverable) component of the whole regime. That mandate is unconstitutional as an exercise of the commerce clause power, but is somehow a tax and is fine. Along comes ACA v.2 where the “tax” (or penalty) is reduced to zero. Does that make the mandate unconstitutional? Maybe. But, really, it makes the mandate inoperable and largely irrelevant.
But the next leap (which you rightly doubt) is that the view of the Version 1 Congress that the mandate is essential to the whole regime (and that the whole regime should fall without it) is somehow carried over to the Version 2 Congress, which has just decided to eliminate the mandate while leaving the rest of the regime entact. That is, I don’t know how you conclude that the mandate (which was just eliminated) is still viewed by Congress (and, specifically, the Congress that “enacted” the regime that currently exists) as an essential part of the whole regime.
As I recall, the “essential” nature of the mandate wasn’t based on an argument that the remainder of the law was unconstitutional (or somehow otherwise legally defective) without it. It was that it was a bad law (as a matter of policy) without it. So now Congress has given us a bad law. That’s no reason to strike it down. (But, to answer the OP, it’s also no reason to strike down the change in the law, which seems to be a perfectly permissible use of congressional power).
The problem is this is a fairly unique situation and constructing an analogy that parallels the relevant issue, where the facts giving Congress Constitutional authority to legislate have changed post-promulgation, is exceedingly rare. That’s why I kept it simple and vague except for the necessary components - Congress passes a law under the authority of one of its enumerated powers and other legislation changes the situation so the facts giving rise to that authority no longer exist. But if it makes it easier, all aspects of manufacturing and sales of Specialwidgets occur entirely within state A. Not sure I’ve ever heard of a negative interstate commerce clause claim i.e. where a complete lack of interstate commerce satisfies the nexus requirement of a substantial relationship to interstate commerce.
The issue is that Congress can only legislate through its enumerated powers, in specific areas where the Constitution gives it the authority to legislate. Everything else is left up to the states. With the ACA, since a majority of SCOTUS could not agree that it could do so under the Commerce Clause it was left to Roberts to save the Act by declaring the penalty a tax and finding Congress had the authority to legislate under its Constitutional Power to Tax.
When the penalty was eliminated the argument, and the ratio decidendi in Texas v United States, is that Congress no longer had the Constitutionally derived authority to pass the legislation. The only real counter-argument is that a tax of $0 is still, Constitutionally speaking, a tax. It’s…not the best argument. Other than that it would take a majority of SCOTUS finding authority under the Commerce Clause, or somehow some other enumerated Power, to make the Act Constitutional.
The court has deemed that a farmer who grows wheat to feed his own animals on his own farm (and thus who never sold the wheat) is impacting interstate commerce and can thus be subject to federal law establishing a maximum quota on wheat production in a price support scheme. See Wickard v Filburn
Have no doubt in the extent to which the court may engage in twists and turns of logic to extend the Commerce Clause power of Congress. Similarly the Court may decide that Congress may continue to compel the purchase of a consumer good by establishing a tax of $0 for failure to buy the good, thus making a non-required payment that raises no revenue a “tax”. :smack:
But they wouldn’t be reinstating the tax, and it’s not a new tax, they’d be saying the law that repealed it was unconstitutional so the old tax was still in existence. Congress cannot pass a law that modifies a law to become Unconstitutional.
That’s all fine, at least for the present discussion. Let’s accept that the mandate/tax has to go. The problem for me is the next step: the conclusion that the entire statute must be struck down because the mandate is so integral to the scheme that Congress would never have enacted it without it. I find that argument implausible when we’re having this discussion precisely because Congress (effectively) removed the tax/mandate while leaving the rest of the scheme intact. As far as I know, no one is arguing that the rest of the statute is somehow unconstitutional once the mandate is struck down.
I don’t think that’s true. Congress had the authority to repeal the tax and I’m not seeing a reason or anyone making the argument why they wouldn’t be able to.
OK I’ll give a simpler situation. Congress passes a tax saying that $10 is added to everyone’s income tax. Someone sues. The Supreme court says the tax is Constiutional. Congress then passes a bill that says the tax need not be paid by anyone who is Christian. The law as changed is now brought to court and it is clearly Unconstitutional. You are arguing that this makes the original law no longer valid. I’m arguing that this simply keeps the existing law as is with a tax on everyone.
As Congress could have passed a law eliminating the tax but chose not to, I’d argue that was not their intent so the argument that the tax should remain is more in keeping with Congress’ reasoning.
The history of Commerce Clause jurisprudence has certainly swayed back and forth to varying degrees from an expansive reading to a more narrow one. But either because of different philosophies regarding state vs federal power, or a realization that it had been pushed perhaps too far, or both, beginning with US v Lopez the Rehnquist Court took a step back from expanding the scope of the Commerce Clause any further.
And I think the reasoning in Wickard, even if dubious at the time originally decided, is even stronger today. Advances in transportation and communications have turned what was once local markets into regional (interstate) and now global. The Court in Lopez though, correctly recognized that if interstate commerce could be used to justify Federal legislation establishing gun free school zones then it could be used to justify just about anything. With the current Conservative majority, which has already shown a reluctance in Sebelius to read the Commerce Clause that broadly, I don’t expect a shift away from the current trend.
Unless part of a statute can be severed then any part of it that is unconstitutional on its face, as opposed to as-applied, renders the entire statute null and void. If legislatures want any part of a statute to survive when another part is found unconstitutional then they typically include a severance clause stating exactly that. For whatever reason, no such clause was included in the ACA. That’s pretty strong evidence that the intent was no part of the Act was severable.