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Supreme Court Throws Health Care Forecasters a Curve Ball

Intertrade had rejection of the individual mandate of the health care law a 70% certainty. Most people had followed CNN’s Jeffrey Toobin’s take on the arguments that seemed to have gone so terribly wrong for the White House back in March. And they were all wrong.

President Obama has Chief Justice John Roberts to thank for saving the Affordable Care Act. Astoundingly, Roberts, who has voted 90% of the time with the other four Republican appointees, joined the court’s four liberal justices.

What many apparently discounted, was the extent that Roberts cares about political appearances. It took some intellectual gymnastics, but, in the end, it seems the Chief Justice wanted, at all costs, to preserve the integrity of the court against perceptions it had become a blatantly political body. Or, in the true meaning of the word “conservative,” he’s the kind of judge who believes it should be very difficult to alter existing law. Or both.

The gymnastics involved was the majority of the court labeling the “fee” that would be imposed on Americans who do not get health insurance a “tax,” a word that was never actually written in the legislation and a characterization which the President vehemently denied. But basically the court’s majority was saying, if the politicians were obviously afraid to call a tax what it really is- as NPR’s Nina Totenberg put it in her analysis of the court’s action, regardless, “If it looks like a tax and acts like tax, it’s a tax.”

And that’s key because there were five justices, including Roberts, who were of the opinion that a universally charged “fee” would have been a violation of the commerce clause of the constitution; they would argue you can’t force people from all 50 different states to pay a fee if they don’t get insurance. But a tax is different. The notion that the Federal government has the right to levy a tax has long been established.

The other part of the gymnastics that seems pretty conflicted is that there’s a law Congress passed that says courts don’t rule on the constitutionality of taxes until they are actually levied and this part of the health care law has not gone into effect yet. In this aspect of the case though, Roberts deferred to Congress’ assertion in the law that it is a fee, they instituted, not a tax. To justify this decision, Roberts had to kind of have it both ways.

So where to now? President Obama gets to explain to the American public what it is that the high court saved today- because his previous communication efforts with the nation in regard to the benefits of the health care law have been widely regarded as abysmal.

And, of course, what many have called his singular accomplishment as President remains intact. Mitt Romney said earlier in the week that rejection of the health care law by the high court would have meant Obama had wasted his first three years in office. That one’s out the window.

But Republicans will likely be all fired up by what they see as a slap in the face by the court. There will be symbolic but ineffective efforts in the House to repeal the law (the Democratic-controlled Senate will never go along). Mitt Romney will make it a mantra in every speech from now until November. Republicans will now be able to use “tax increase” against the President, and overall, it seems the court’s decision will further the stark nature of the choices voters face in November- namely- the role of government in our lives.

Finally, there was a lot of ridiculous speculation and forecasting about how this ruling would go. And you know which one ended up being 100% accurate? There’s a company that makes a business out of analyzing facial expressions. According to their analysis of the way the justices reacted on the bench during the arguments- there were five justices who smiled the most. The four liberals and Chief Justice John Roberts.

For whatever reasons he took the path he did, it would appear it is John Roberts who gets the last laugh.

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