George Will: The ACA's four-word Waterloo?
Some of the ACA's myriad defects do reflect its slapdash enactment, which presaged its chaotic implementation. But the four potentially lethal words were carefully considered and express Congress' intent.
In Senate Finance Committee deliberations on the ACA, Chairman Max Baucus, D-Mont., one of the bill's primary authors, suggested the possibility of conditioning tax credits on state compliance because only by doing so could the federal government induce state cooperation with the ACA. Then the law's insurance requirements could be imposed on states without running afoul of constitutional law precedents that prevent the federal government from commandeering state governments. The pertinent language originated in the committee and was clarified in the Senate. (See "Taxation Without Representation: The Illegal IRS Rule To Expand Tax Credits Under The PPACA," by Jonathan H. Adler and Michael F. Cannon in Health Matrix: Journal of Law-Medicine.)
If courts, perhaps ultimately including the Supreme Court, disallow the IRS' "interpretation" of the law, the ACA will not function as intended in 34 states with 65 percent of the nation's population. If courts allow the IRS' demarche, they will validate this:
If the IRS can do both, Congress can disband because it has become peripheral to American governance.
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