Any argument related to taxation -- even if it doesn't involve this specific point -- is an example of this. There are some parts of it that can't legally be challenged yet because nobody has any legal standing to challenge them right now.
And this is the beauty of the proposition. Taxation authority is clearly spelled out in the Constitution. Congress, specifically the House, can no more delegate its authority in this area than either the Executive or SC in theirs.
Assume for the moment that the DHHS can continue to issue waivers, exemptions, etc. Then what is to stop any executive, at any level of government, from exercising the same discretion with regard to income taxes, property taxes, etc? Where does it stop?
It doesn't stop, which is why all federal tax laws must be passed by a legislative body representing a majority of the people. Sure, Congress has the power, but how are they going to wield it? Now that the cat's out of the bag, every exemption, every waiver, every rate increase, every kickback has to go through the House.
Are people beginning to realize the effect of moving Otax out of the back room, which enjoyed -0- oversight and 100% discretion under commerce clause provisions, and out into the broader debate?