Is the So-Called Mandate Without Any Tax Consequences Unconstitutional? And If So, How Should a Court Remedy That? Part Three in a Series Examining Underexplored Issues in the California v. Texas Affordable Care Act Case

VIKRAM DAVID AMAR, EVAN CAMINKER, JASON MAZZONE

In this third of a series of columns examining underexplored issues in the California v. Texas case challenging the Affordable Care Act (ACA), Illinois law dean Vikram David Amar, Michigan Law dean emeritus Evan Caminker, and Illinois law professor Jason Mazzone consider whether the so-called individual mandate of the ACA, now without any tax consequences, is unconstitutional, as the challengers argue. The authors explain why, in their view, the challengers are incorrect, regardless of whether the word “shall” in the ACA is interpreted as obligatory or not.

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Memphis A. Philip Randolph Institute v. Hargett

Docket: 20-6046

Opinion Date: October 15, 2020

Judge: Gibbons

Areas of Law: Civil Procedure, Civil Rights, Constitutional Law, Election Law

Tennessee voters must apply to vote absentee. The county administrator of elections determines whether the voter has established eligibility to vote absentee, and compares the signature of the voter on the request with the signature on the voter’s registration record. Voters who qualify to vote absentee receive a ballot, an inner envelope and an outer envelope, and instructions. The inner envelope has an affidavit; the voter must verify that he is eligible to vote in the election. The ballot must be received no later than when the polls close. Upon receipt by mail of the absentee ballot, the administrator "shall open only the outer envelope and compare the voter’s signature on the [affidavit] with the voter’s signature" on the registration record. If the administrator determines the signatures do not match, the ballot is rejected; the voter is “immediately” notified in writing. Voters who are concerned that their absentee ballot might be rejected may cast a provisional ballot before being notified of a rejection. The Sixth Circuit affirmed the denial of a preliminary injunction to prohibit the enforcement of the signature verification procedures. The plaintiffs cannot cite with certainty or specification any past erroneous rejection of an absentee ballot; their speculative allegations of harm are insufficient to establish standing. The plaintiffs have not demonstrated that anyone whose ballot may be erroneously rejected will ultimately be unable to vote, either absentee or by provisional ballot; there is no evidence that anyone’s constitutional rights are likely to be infringed.

United States v. Palos

Docket: 19-4186

Opinion Date: October 15, 2020

Judge: John M. Rogers

Areas of Law: Criminal Law

Police searched Palos’s residence on suspicion of drug trafficking and found narcotics, drug paraphernalia, and a firearm. Palos admitted that he had purchased the firearm “off the streets.” It was later confirmed to be stolen. Palos, previously convicted of two separate drug trafficking offenses in state court, pleaded guilty as a felon in possession of a firearm, 18 U.S.C. 922(g)(1). With a Guidelines range of 87-108 months, he was sentenced to 63 months’ imprisonment. The Sixth Circuit vacated his sentence, in part. Palos's 2010 conviction under Ohio Revised Code 2925.03(A)(1), which criminalizes “knowingly . . . “sell[ing] or offer[ing] to sell a controlled substance” no longer qualifies as a “controlled substance offense” so that his Guidelines base offense level was miscalculated. Statutes that criminalize offers to sell controlled substances are too broad to categorically qualify as predicate 'controlled substance offenses.’” The court upheld a sentencing enhancement for possession of a stolen firearm, rejecting an argument that Palos had no knowledge that the firearm was stolen. The court noted the absence of a scienter requirement in U.S.S.G. 2K2.1(b)(4). Palos’s firearm was stolen at the time Palos unlawfully possessed it and section 2K2.1(b)(4) is a strict liability enhancement.