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Sahil Kapur

Sahil Kapur is TPM's senior congressional reporter and Supreme Court correspondent. His articles have been published in the Huffington Post, The Guardian and The New Republic. Email him at sahil@talkingpointsmemo.com and follow him on Twitter at @sahilkapur.

Articles by Sahil

The Supreme Court's ruling to uphold 'Obamacare' changes the federal-state relationship in a way that might end up affecting issues such as the drinking age nationwide, legal experts say.

Among the court's rulings in the historic health care reform case was the decision that allows states to opt out of the law's Medicaid expansion without losing all their federal funds for the program. For a quarter of a century, the jurisprudence has been essentially settled that the federal government has the right to make funding to states conditional on specific state actions. The best-known and most frequently cited example: federal highway funds conditioned on states making the legal drinking age 21.

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Although the Supreme Court upheld 'Obamacare', the ruling complicates an important element of the law by making the Medicaid expansion optional for states. States will no longer risk losing all their Medicaid funds if they opt out of the expansion, which is projected to cover some 17 million low-income people.

Most states will be hard-pressed to turn down the infusion of federal funds to help cover their uninsured residents, despite incurring new costs down the road. But Republican governors face a genuine political predicament because if they accept the Medicaid expansion, they open themselves up to potentially resonant right-wing attacks for buttressing 'Obamacare.'

While some GOP-led states are hedging, others vow to reject the funds.

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Within just a few hours of the Supreme Court handing down its decision last Thursday in the health care reform case, some legal commentators were wondering out loud if Chief Justice John Roberts had flipped positions during deliberations. Teasing out tea leaves from the text of the dissent written by the court's four remaining conservative justices, court watchers from Paul Campos to David Bernstein speculated that Roberts had originally been aligned with his conservative brethren before switching sides and writing the majority opinion.

It was the usual post-decision parlor game among those who closely follow the court, which remains the least transparent of the three branches of the federal government and whose every utterance, protocol, and even mundane action is highly scrutinized.

But on Sunday CBS legal correspondent Jan Crawford, who has covered the court for years, upped the ante with a report that Roberts initially aligned with the other four conservatives against the individual mandate but at some point switched his vote. Crawford's report moved the story from parlor game to hot news, relying on two anonymous sources to provide details that would seem to be known only to the justices and their law clerks.

Already feeling betrayed by Roberts' joining with the liberal bloc on the court to uphold Obamacare -- and suspicious of Roberts' motives -- some conservatives seized on the Crawford report as evidence that they didn't lose the case on the legal merits but because of external considerations that swayed Roberts away from their side.

Here are the top five theories emerging from conservative circles for why John Roberts stabbed their movement in the back:

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In the wake of the Supreme Court decision to uphold the 'Obamacare' mandate under Congress's taxing power, Democrats are unifying behind a message to refute the GOP contention that they raised taxes on the middle class.

The Dems' response: No, we didn't. We simply punished freeloaders. Just as Mitt Romney did.

"It's not a tax on the American people," House Minority Leader Nancy Pelosi (D-CA) said Sunday on NBC's "Meet The Press." "It's a penalty for free riders."

"The massive so-called tax increase they're talking about is the freeloader penalty," Maryland Gov. Martin O'Malley (D) said on CBS' "Face The Nation, "which would affect at most 1-2 percent of people that could afford health care and instead want to be freeloaders on the rest of us with uncompensated care."

The fine for noncompliance with the requirement to purchase health insurance would hit 4 million people, or just over 1 percent of the population, according to the nonpartisan Congressional Budget Office.

Republicans have nevertheless sought to paint the law as a massive tax hike on working people. On Fox News Sunday, Senate Minority Leader Mitch McConnell (R-KY) said the Supreme Court "unearthed the massive deception that was practiced by the president and the Democrats, constantly denying that it was a tax."

The theory behind the provision is that when uninsured people use health care resources, they're often unable to pay for them, so they end up passing the costs on to taxpayers. The mandate is an effort to force those individuals to pay upfront.

"This penalty says you cannot be a free-rider," White House chief of staff Jack Lew told Fox News.

The messaging shift comes late for Democrats, who did not get behind a compelling rationale for the individual mandate during the health care reform debate. That left the field wide open for Republicans to attack it as an egregious violation of personal liberty.

But it was Romney who pioneered the anti-freeloader argument, when defending the individual mandate at the heart of the health care plan he enacted as governor of Massachusetts.

"Using tax penalties, as we did, or tax credits, as others have proposed, encourages 'free riders' to take responsibility for themselves rather than pass their medical costs on to others," Mitt Romney wrote in a 2009 USA Today op-ed.

In mid-2009, Sen. Chuck Grassley (R-IA), the top Republican on the Finance Committee, told Fox News, "But there is a very important issue here, and that is that we consider that there are some people who can afford their own health insurance but decide not to buy it because they want to pay it out of pocket. Should you require those people to do it? I believe that there is a bipartisan consensus to have individual mandates."

Democrats are happy to credit Romney, making things awkward for Republicans.

"The penalty is on people who have the wherewithal but refuse to buy health insurance, figuring they won't be sick and if they do, other people will have to cover it," Pelosi said. "So these free riders -- as they were identified by Governor Romney himself, he said that people who have the ability to pay and don't can't expect to be free riders. And I think he had it exactly right."

House Budget Committee Chairman Paul Ryan (R-WI) said Sunday that 'Obamacare' should be repealed because the rights of individuals come from God.

"I think this at the end of the day is a big philosophy difference," Ryan told ABC's "This Week." "We disagree with the notion that our rights come from government, that the government can now grant us and define our rights. Those are ours, they come from nature and God, according to the Declaration of Independence -- a huge difference in philosophy."

Republicans are seizing on the Supreme Court's decision to uphold 'Obamacare' under Congress's taxing power to accuse Democrats of raising taxes on the middle class. But they're finding it difficult to square that with the fact that their presidential nominee enacted the same concept as governor of Massachusetts.

Although Mitt Romney has vowed to repeal 'Obamacare', his 2006 law includes the same core elements, including the mandate to purchase insurance or pay a fine. In 2009, Romney wrote in a USA Today op-ed that he used "tax penalties" to achieve the objective of broadening coverage.

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U.S. Chief Justice John Roberts' swing vote to uphold 'Obamacare' under Congress's taxing powers has drawn praise from his usual critics. One top Democratic senator lauded Roberts' "judicial independence" in saving President Obama's signature law, but also argued that the Bush-appointed jurist broke his promise by narrowing the scope of the Commerce Clause.

In his opinion, Roberts explained in detail why he believes his view is not inconsistent with precedent, siding with conservative architects of the legal challenge in the argument that Congress may not regulate inaction.

"In my view it certainly merited upholding under the Commerce Clause," said Sen. Chuck Schumer (D-NY), his party's leader on messaging. "I do worry, in the future, about the courts limiting the Commerce Clause as a way of limiting the ability of the federal government to help average families."

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House Speaker John Boehner (R-OH) on Sunday did not rule out including some parts of 'Obamacare' in a potential replacement plan, although he emphatically stated his commitment to repealing the entire law first.

On CBS' Face The Nation, he was asked if he believes there's "anything good" in the law.

"Well there's always going to be parts of it that are good," Boehner said. "But when you look at the 2,700 pages that no one read, and you know, remember, Nancy Pelosi said well we have to pass this before we know what's in it. Republicans are not going to go down that path."

Boehner said he supports the provision letting Americans under 26 years old to remain on a parent's insurance policy, pointing out that some insurance companies have opted to keep that provision regardless.

He declined to elaborate on how specifically Republicans would prefer to address health care, saying several times that the party will take a "common sense, step by step approach."

The Affordable Care Act, he said, "has to be ripped out by its roots" so Congress can "start over."

House Speaker John Boehner (R-OH) said Sunday that while he was surprised by the Supreme Court's ruling, it only makes his party more determined to repeal 'Obamacare.'

"All it really does is strengthen my resolve -- and resolve of the Republicans here in Washington -- to repeal this awful law," he said on CBS' Face The Nation.

Senate Minority Leader Mitch McConnell (R-KY) argued Fox News Sunday that the Supreme Court opinion on the health care law opens the door for the Senate to repeal the individual mandate with 51 votes, as opposed to 60. 

"Look, reconciliation is available because the Supreme Court has now declared it a tax," he said. "They have unearthed the massive deception that was practiced by the president and the Democrats, constantly denying that it was a tax. … The chief justice has made it clear -- it's a tax. And as a tax it is eligible for reconciliation."

"Now the American people will have the final decision and I'm confident they'll give us the votes to repeal it."

TPMLivewire