DENVER -- Colorado Attorney General John Suthers, one of the first plaintiffs to join the lawsuit challenging President Obama's health care overhaul, told FOX31 Denver that he's surprised the Supreme Court narrowly upheld the law in a ruling handed down Thursday.
"I wouldn't have been surprised if they upheld it. I was surprised the way they upheld it," said Suthers, who wasn't expecting a majority opinion that hinged on the individual mandate being re-defined by the court as a tax.
"Congress in the act itself said forcing people to buy health insurance was an act of the Commerce power," Suthers said. "They never said it was a tax. The president said it. The lower courts ruled that way. And I sat and heard justices on the Supreme Court themselves arguing that it wasn't a tax, but a penalty."
The surprising opinion, written by conservative Chief Justice John Roberts, did limit the use of the Commerce clause; additionally, it ruled that the expansion of Medicaid mandated under the law is unconstitutional.
"Those are Pyrrhic victories," Suthers said. "This case was really all about the individual mandate. So we won a battle or two, but we lost the war."
Now that the legal argument is essentially settled, the argument boomerangs back to the political arena, and Suthers believes it will be to Mitt Romney's advantage this fall.
"I think defining his signature legislative accomplishment as a tax makes it easier for Republicans to score points on this," Suthers said.
An official statement from Suthers was emailed out to reporters Thursday afternoon -- and it didn't come from his own office, but the Romney campaign.
"Our state is faced with a future of oppressive regulations instead of a system that allows its people and its local economy to flourish. But, hope is not lost," Suthers said in the statement.
"As Governor Romney has said many times, no matter what happens in court, we must dedicate ourselves to repealing this law, and he has promised to do just that, starting on day one of his administration."
Romney Thursday promised to repeal "Obamacare" on the first day of his administration; and his campaign has already raised more than $2.5 million from 24,000 individual donors on its website since the ruling was handed down.
But, when pressed by FOX31 Denver on whether repeal is really likely, Suthers admitted it's not.
"If Obama wins and Republicans get both the House and Senate, it's repealed," Suthers said. "If Romney wins and there's still a Congressional stumbling block with Democrats controlling the Senate, then all he can issue is an executive order that could only slow down implementation.
"He can't just repeal it."