In fact, the far more likely outcome in this case is that both the traditional private health-care markets and the new government exchanges will buckle under their regulatory burden. In my view, it was a tactical mistake for the defenders of the ACA to paint a rosy picture of so controversial a statute. In so doing, they opened themselves up to the implicit criticism that if the ACA did not achieve its lofty goals, it would dragoon ordinary people into a scheme built to fail. Could that have been the implication of Justice Kennedy’s question? The last thing that any defender of the ACA should want to do is make its constitutionality turn, even in tiny part, on the soundness of its legislative scheme.
On which side do you fall? To dragoon? Or mostly to leave folks to their own wits. Applicable for the scheme built to fail or the scheme to be a straight transfer payment scheme sustained so long as there are enough hands to pay in.