|By GEORGE WILL; GEORGE WILL|
This plausible judgment comes from professor
What was supposed to be, constitutionally, the dispositive question turned out not to be. Conservatives said the mandate -- the requirement that people engage in commerce by purchasing health insurance -- exceeded
Liberals ridiculed this argument, noting that since the judicial revolution wrought during the New Deal, courts have given vast deference to
This did not, however, doom the ACA because Roberts invoked what Lambert calls "a longstanding interpretive canon that calls for the court, if possible, to interpret statutes in a way that preserves their constitutionality."
Roberts did this by ruling that what
The former forbids insurance companies from denying coverage because of a person's pre-existing health condition. The latter, says Lambert, requires insurers to price premiums "solely on the basis of age, smoker status and geographic area, without charging higher premiums to sick people or those susceptible to sickness."
The point of the penalty to enforce the mandate was to prevent healthy people -- particularly healthy young people -- from declining to purchase insurance, or dropping their insurance, which would leave an insured pool of mostly old and infirm people. This would cause the cost of insurance premiums to soar, making it more and more sensible for the healthy to pay the ACA tax, which is much less than the price of insurance.
Roberts noted that a person earning
So, Lambert says, the ACA's penalties are too low to prod the healthy to purchase insurance, even given ACA's subsidies for purchasers. The ACA's authors probably understood this perverse incentive and assumed that once
But Roberts' decision limits
Unable to increase penalties substantially,
Because the penalties are constitutionally limited by the reasoning whereby Roberts declared them taxes, he may have saved the ACA's constitutionality by sacrificing its feasibility. So as the president begins his second term, the signature achievement of his first term looks remarkably rickety.
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