A willow, not an oak. So said conservatives of Chief Justice John Roberts when he rescued the Affordable Care Act (ACA) — a.k.a. Obamacare — from being found unconstitutional.
But the manner in which he did this may have made the ACA unworkable, thereby putting it on a path to ultimate extinction.
The crucial decision, he says, was four liberal justices joining Roberts’s 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 that the mandate — the requirement that people engage in commerce by purchasing health insurance — exceeded Congress’s enumerated power to regulate interstate commerce. Liberals ridiculed this argument, noting that since the judicial revolution wrought during the New Deal, courts have given vast deference to Congress regarding that power. The ridicule stopped when five justices, including Roberts, agreed with the conservative argument.