Following their decisive healthcare defeat in the House, Republicans on Monday prepared a three-pronged effort to wage a continuing fight against the bill -- beginning with a drive this week to stall follow-up legislation in the Senate.
And even before the healthcare bill has become law, Republicans are backing an effort by a dozen state attorneys general to challenge the bill’s constitutionality in court, and they are making it a 2010 campaign priority to call for the law’s repeal.
President Obama is scheduled on Tuesday to sign the nearly $1-trillion healthcare overhaul given final approval Sunday night by the House. But the Democrats’ victory will not be complete until the Senate clears a bill that will put politically sensitive finishing touches on the blueprint.
Republicans were already planning to deploy parliamentary maneuvers and offer a cascade of amendments in an effort to drag out debate.
“No more tax hikes. No more Medicare cuts. No more deal-making,” said Senate Minority Leader Mitch McConnell (R-Ky.) on Monday. “Democrats may have won their vote last night, but they lost the argument.”
In addition to the delaying tactics, the attorneys general of 12 states, including Virginia, Florida, Texas and Pennsylvania, have said they plan to file lawsuits once the bill is signed into law.
They will argue, among other things, that the requirement that all Americans purchase health insurance violates the Constitution because it forces individuals to contract with private companies.
The call for the bill’s repeal was spearheaded Monday by the GOP’s 2008 presidential nominee.
“This bill is terribly wrong for America, and I call on you to join with me to challenge this bill in every way we can,” said a fundraising letter from Sen. John McCain (R-Ariz.), who is up for reelection in 2010 and facing a conservative GOP primary opponent.
Democrats believe they will score a crucial election-year accomplishment when Obama signs the legislation.
It includes the major pillars of change he sought: an expansion of Medicaid eligibility; regulations to make it harder for insurance companies to cut off policies or deny benefits; a new insurance exchange to make it easier for individuals and small businesses to buy affordable policies; and insurance premium subsidies for families of modest means.
To help cover the cost -- roughly $900 billion over 10 years -- of expanding insurance coverage and subsidies, the bill also imposes a new excise tax on expensive health plans, curbs costs in Medicare and increases payroll taxes on higher-income people.
House Democrats also passed a separate reconciliation bill that eliminates such Senate provisions as a special Medicaid loophole for Nebraska. The follow-up bill also limits the scope of the excise tax, increases premium subsidies and expands prescription drug coverage for the elderly.
The reconciliation bill comes before the Senate on Tuesday under special rules that provide only 20 hours of debate, but allow unlimited amendments at the end of the allotted time.
It is not clear how much appetite Republicans will have for limitless amendments. Conservatives such as Sens. Tom Coburn (R-Okla.) and Jim DeMint (R-S.C.) have threatened an onslaught, but other Republicans may have second thoughts about high-profile delaying tactics. A senior GOP strategist said most senators probably lacked the stamina to drag the process into the weekend.
Democrats will try to block every amendment -- even small, politically appealing ones -- because any change would force them to send the bill back to the House. The two chambers must approve identical bills.
GOP leaders will try to challenge key parts of the bill on procedural grounds -- technicalities that will be mediated by the Senate parliamentarian, Alan Frumin. If a provision is struck, a 60-vote majority would be needed to overrule it -- an unlikely prospect.
Republicans are also expected to offer amendments designed to force Democrats to take politically awkward votes. For example, they could propose adding a government insurance program -- the “public option” that most Democrats support but was dropped to the dismay of their liberal base.
On the legal front, many experts say they are skeptical a challenge could succeed. But at the very least, the court challenges are likely to expose the healthcare legislation to a high degree of judicial scrutiny, with the possibility that a court somewhere could find some parts of it illegal.
The White House on Monday said it didn’t expect the lawsuits to succeed.
“My sense is that a lot of big pieces of legislation are challenged in some ways,” said White House spokesman Robert Gibbs. “I think that for many decades, the Supreme Court has recognized Congress’ authority under the Commerce Clause to regulate activities relating to interstate commerce.”
Virginia is in a singular position among the states that will challenge the law, because its Legislature earlier this year passed a law saying its citizens are not bound by the so-called individual mandate. Virginia Atty. Gen. Ken Cuccinelli, a Republican, said the law sets up a conflict with federal laws that courts will have to resolve.
“With this law, the federal government will force citizens to buy health insurance, claiming it has the authority to do so because of its power to regulate interstate commerce,” Cuccinelli said Monday.
Florida Atty. Gen. Bill McCollum will hold a news conference Tuesday to announce a lawsuit that will be joined by nine other states. The healthcare bill “infringes on each state’s sovereignty,” said McCollum, a Republican.
There is some question as to whether courts could hear the challenges, because under the legislation, the requirement to purchase insurance doesn’t become effective until 2014. Courts typically require plaintiffs to show some current injury for which redress is sought.
Randy Barnett, a law professor at Georgetown University, said the lawsuits had a chance. “Never before in this country has the government mandated that a private citizen do business with a private company,” he said.
States often require those who buy cars or homes to purchase insurance. But opponents of the federal healthcare bill argue that buyers do so willingly, while the health insurance requirement affects all Americans regardless of choice.
Mark Tushnet, a constitutional law expert at Harvard University, said the Constitution gives Congress broad power to tax Americans, and the individual mandate could be viewed as a tax. “It serves the general welfare,” he said.