Washington Matters

Why the War Goes On
Over Health Care Reform

Republicans can’t overturn the new law. But they can still reap gains in November.

By Richard Sammon, Senior Associate Editor, The Kiplinger Letter

March 24, 2010

Republican leaders are pledging to repeal the new health care law. There’s nearly zero chance they can do it. But repeal is what they’re promising. Is it foolhardy?

No, it’s not. Republican lawmakers, who voted in unison against the legislation, have a lot to gain from the effort, which shows the party base that members of Congress are still working hard for them. Doing otherwise would amount to capitulation. In the process, they may win over some independents and conservative Democrats, which would be an obvious plus.

Repeal will be tough, if not impossible. To do it legislatively, Republicans would need an unthinkable landslide victory in the midterm elections. They’d need to ride a political earthquake. More than just gaining control of the House and Senate, Republicans would need a full, two-thirds veto-proof majority in each chamber, as President Obama would surely veto attempts to gut or rewrite his signature health care reform. A veto-proof GOP majority is not in the math by any realistic accounting. They’d have to wait until 2012 and hope to control the White House as well as Congress.

Chances are only slightly better on the legal challenge to the law. More than a dozen state attorneys general have filed or will file challenges to the bill’s “individual mandate” requirement that citizens and legal residents obtain health insurance. The arguments will say that federally mandated individual insurance infringes on a state’s authority and amounts to an unprecedented expansion of federal power.

It is unclear how courts will rule, or even when and if the Supreme Court will intervene. However, several constitutional law scholars note that Congress has a long established authority to regulate the national economy and raise revenue. Defenders of the individual mandate will argue that the mandate is essentially a tax and therefore constitutional.

Also at the state level, there’s a flurry of related activity. Three dozen states have legislation pending that challenges the constitutionality of the federal law. Two states, Virginia and Idaho, have enacted legislation stating that citizens of the state are not required to purchase health care insurance. It’s also possible that as many as two dozen states could have ballot questions aimed at preventing the individual mandate from applying.

All of these state level challenges will be resolved one way or another, probably by the courts. In the meantime, federal law supersedes state law, so the state challenges are just symbolic gestures and venting -- and will be until appellate courts resolve the matter. That will take time.

And repeal efforts will be ripe for highly charged debate, given that several parts of the legislation have broad support, including helping seniors buy prescription drugs, covering children in family health care policies until age 26, barring insurers from denying coverage because of preexisting medical conditions and ending lifetime caps on insurance coverage.

The GOP can still gain from the effort. It will spur fund-raising by defining a clear difference between the parties on the role of government. It sends a signal that a hard brake may be required on Obama, Speaker Nancy Pelosi (D-CA) and Senate Majority Leader Harry Reid (D-NV), who faces a tough reelection fight. It sets a marker for other major bills are considered, whether they be climate change, immigration reform, sweeping financial market regulation or even a possible Supreme Court nomination.

“The message of [health care] repeal is but one part of a larger message. It should be in the context of far more,” says Whit Ayres, a Republican pollster. “There’s a litany of wrong Democratic decisions and inclinations to be spoken of. Big and bigger government is the biggest. One after another industry bailout is another. The wasteful spending of the stimulus. Tax hikes to raise government revenue in a weak economy. The lack of any serious deficit focus, and the attempt to take over even more parts of the private economy. It’s not just about health care anymore.”

It won’t be a one-sided argument. The president, several Cabinet secretaries and Democratic leaders will put a daily spotlight on popular and practical reforms and benefits in the the new law to reverse criticism that the measure is too large, costly and complex or that it was rammed through with procedural tricks.

Democrats want the noisy town hall meetings of 2010 to turn in their favor this year -- against efforts to repeal what many may come to like.

Both parties have their post-health-care-reform work cut out for them. The debate is far from over.

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