Roberts’s decision may end up killing Obamacare after all.
Last month’s Supreme Court ruling on Obamacare left champions of that law breathing a sigh of relief, while its opponents — a majority of the public — were left frustrated. It seemed at first glance as though the chief justice’s tortured opinion had saved the individual mandate, and with it the broader statute. But Obamacare’s champions should take a closer look at what the Court left them with, because on their own terms, the law is now set to collapse. This mandate was backed up with a penalty, but the penalty was acknowledged by all to be low (far lower than the cost of health insurance for most people), and the law made it very difficult to enforce. So a rational person would simply pay the penalty instead of buying overpriced insurance, and pocket the money thus saved.
This understanding of the mandate, held by the CBO and by most of Obamacare’s defenders, has been shattered by the Supreme Court’s ruling. In his opinion, Chief Justice Roberts plainly said that “the Federal Government does not have the power to order people to buy health insurance. Section 5000A would therefore be unconstitutional if read as a command.” It could be constitutional only if it was understood to simply levy a tax on the uninsured, Roberts argued, and so that is all that it can be understood to do.
And yet the sponsors of Obamacare have contended that the law would bring about something close to universal enrollment in insurance anyway — because, the argument goes, Americans tend to fall in line with a perceived legal obligation, even when it is plainly against their self-interest to do so. We do what the law requires because it is lawful, without always pausing to calculate. It was the mandate, not just the penalty, that would avert disaster and bring people in. Obamacare is optional in a different, more important way, however. The November election will serve as a referendum on the law, which can be repealed in 2013 with new political leadership. The Supreme Court’s decision has made the case for repeal even stronger. The November election will serve as a referendum on the law, which can be repealed in 2013 with new political leadership. The Supreme Court’s decision has made the case for repeal even stronger.
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