|By GEORGE WILL; BY GEORGE WILL|
A WILLOW, not an oak. So said conservatives of Chief Justice
This plausible judgment comes from professor
The crucial decision, he says, was four liberal justices joining Roberts' opinion declaring that the ACA's penalty for not complying with the mandate to purchase health insurance is actually a tax on not purchasing it. With this reasoning, the court severely limited the ability of the new health care regime to cope with its own predictable consequences.
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
The ridicule stopped when five justices, including Roberts, agreed with the conservative argument.
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
But the cost of a qualifying insurance policy is projected to be
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,
Republicans will ferociously resist exacerbating the nation's financial crisis in order rescue the ACA.
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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