By: George Will
1/19/2013 08:00 PM
WASHINGTON — A willow, not an oak. So said conservatives of Chief Justice John Roberts when he rescued the Affordable Care Act — aka 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.
This plausible judgment comes from professor Thomas A. Lambert of the University of Missouri Law School, writing in Regulation quarterly, a publication of the libertarian Cato Institute. 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.