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Roberts Reportedly Changed Sides after Oral Arguments

Reports are swirling that Chief Justice John Roberts voted with the four conservatives on the Supreme Court at the initial meeting on the Friday after the oral arguments but later jumped ship to side with the liberals. Unsurprisingly, conservatives are furious with him and suspect the switch was politically motivated. The worst accusations are essentially that he was afraid of the "liberal media" (which is conservative-speak for the New York Times). Nobody outside the Court knows if he did switch. Even if it is true, probably nobody inside the Court knows why. Roberts had no trouble with the Citizens United case and other cases that the "liberal media" hated, so that is probably not the real reason, again assuming he did flip. Our best guess is that he plans to be Chief Justice for the next 30 years and did not want to inflict massive damage on the Court's reputation with another bitterly divided 5-4 decision along partisan lines. Also in the back of his mind he might have realized that it takes only 60 votes in the Senate to expand the Court to 15 or 25 or 99 justices and some time in the next 30 years, the Democrats might again have 60 seats.

Finally, maybe Roberts just wanted to keep his powder dry. In the Court's next term, cases on the Voting Rights Act, voter ID laws, and same-sex marriage are going to come before the Court. By making this decision on the ACA, Roberts may have innoculated himself against criticism when he votes with the majority in 5-4 cases, saying he is just calling balls and strikes. All the liberals who are now hailing him as the second coming of Thurgood Marshall are likely to be quite surprised in June 2013. While everyone is intensely focused on the controversy du jour, nobody seems to be asking the question of whether it is a good idea of having 9 unelected men and women having the final say on practically everything, overriding the elected Congress and President. After all, nothing in the Constitution gives the Court this power. It just took it in Marbury v. Madison, itself a highly political case, and nobody stopped it.

Several States Have Already Rejected the Medicaid Expansion in the ACA

One of the few points the plaintiffs won in the ACA case is that the federal government cannot withhold funds from the existing Medicaid program simply because a state refuses to expand it to cover everyone up to 133% of the poverty level. In some ways, the Medicaid expansion is even more important and significant than the much-fought-over mandate. This expansion means that the government will pay all or part of the insurance costs for poor people up to a fairly high level (about $40,000 for a family of four). With poor people, old people, and veterans all covered by government plans (Medicaid, Medicare, and the VA system, respectively), the country is ever-so-gradually moving to a single-payer system in a stealth manner. It is not hard to imagine that 133% becoming 200% in the future and the Medicare age becoming 55.

Conservative governors understand this well. Already those of Florida, South Carolina, Wisconsin, Louisiana, and Kansas have said they will not accept the Medicaid expansion funding and will not set up the exchanges the law requires them to set up. The former is both a political statement popular with conservatives and an economic decision that federal funding won't cover the bill down the road and they don't want to expend scarce state money on health care for poor people. That a state might have priorities elsewhere is a legitimate political decision for a governor to make.

Not setting up exchanges is pure grandstanding. Why is it a government takeover of health care to set up a Website where private insurance companies can offer competing plans for uninsured citizens to compare, especially since they have to pick one or pay a "tax"? Besides, the ACA says that if a state doesn't set up an exchange, the federal government will do it. Apparently these governors find it better for the federal government to do something they claim is a state matter.

As an aside, as of this morning, the Fox News Website had a headline reading: Gov. Scott: Florida will not implement insurance exchanges or expand Medicare. Apparently Fox doesn't know the difference between Medicare and Medicaid or is just trying to scare seniors. Nothing in the ACA requires states to expand Medicare. States having nothing to do with Medicare. It is a federal program.

Romney Says the ACA Penalty is not a Tax

Completely undercutting the Republican message since the Supreme Court ruling on the ACA, Mitt Romney has now said that the penalty for not buying insurance is just a penalty, not a tax. He probably took this position because Romneycare has the same penalty as Obamacare and if it is tax, Democrats can say that he raised taxes when governor of Massachusetts. What's a tax anyway? Some definitions:

The general theme of most definitions is that its primary purpose is raising revenue. That really wasn't the case with the ACA penalty, so using the normal definition of tax, Obama and Romney are right and the Supreme Court came up with a new definition of tax. While linguists may fret over a bunch of lawyers redefining a very old word, the main problem here is Romney taking down the Republicans' message that the ACA is a massive tax hike.