Howard Stephenson: After Court's ruling, is Congress' taxing power now unlimited?
For example, Congress might use its taxing authority to prohibit developers from using less energy efficient designs in their buildings. By most accounts, the Commerce Clause does not justify this requirement, but Roberts would presumably uphold that requirement, if the penalty for using insufficiently energy efficient designs is paid to the IRS, no other criminal sanctions would apply, and the penalty isn't too high. (Who knows what too high might be?)
In the short term, the Supreme Court's Obamacare decision suggests serious problems. Congress' taxing power can now extend into authorities previously reserved exclusively to the states. However, Supreme Court jurisprudence is full of tests articulated in one case, only to be abandoned very quickly. Roberts' expansion of the taxing power may also be temporary.
Roberts' opinion suggests another possible means of reining in both Obamacare and Congress' authority under the taxing power. Article I Section 7 of the Constitution requires that "all bills for raising revenue" must originate in the House of Representatives. Obamacare began its legislative journey in the Senate, which means its passage may have violated the Constitution. However, the Supreme Court has not ruled on whether Obamacare should have originated in the House.
Howard Stephenson is a Utah State Senator. He represents District 11, including Draper.
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