By Alexander Bolton - 01/06/10 11:00 AM EST
Republicans and allied groups say they will spend millions to oppose healthcare reform and other Democratic initiatives in the courts, which they see as a last line of defense against President Barack Obama’s agenda.
Republicans claim that healthcare reform is subject to challenge on various constitutional grounds, and conservative activists say they are willing to raise millions to wage that battle.
Around the nation, the Republican attorneys general of 13 states have warned they may wage a legal challenge against the special payments that Nebraska, the home state of Sen. Ben Nelson (D-Neb.), would receive under the bill to cover the cost of new Medicaid enrollees.
But Republicans say their efforts to fight the Democrats agenda in the courts will not be limited to healthcare reform. They predicted that global climate change legislation, an employee card-check bill and a host of other new environmental and labor regulations would face court fights.
With Democrats in control of the White House and large majorities in the Senate and House, Republicans view the third branch of government as their last, best hope to limit Obama’s ambitious reform agenda.
“It’s all on the table,” said David Bossie, president of Citizens United, which has spent over $1 million on a legal challenge to the 2002 McCain-Feingold campaign finance law that is pending before the Supreme Court. “The courts are the last line of defense.
“Since Democrats cut Republicans out of the healthcare negotiations in Congress, maybe the only way to have any input into the health bill is through litigation,” Bossie added.
Bossie estimates that fighting the Democratic healthcare bill all the way to the Supreme Court would cost at least $2 million.
Other groups that could challenge the bill include the Washington Legal Foundation and the Institute for Justice.
Groups have been reticent to announce their legal strategy because Congress has not yet passed the sprawling reform bill, but many observers on and off Capitol Hill say that passage is all but inevitable.
“I’ve had potential donors come to me saying they want to give money to litigate. I don’t think it will be hard for these groups to raise money,” said Todd Gaziano, director of the Center for Legal and Judicial Studies at The Heritage Foundation, which does not litigate.
The plan to use the courts as a last line of defense against Obama’s agenda represents a change in tactics for Republicans and conservatives.
Grover Norquist, president of Americans for Tax Reform, said that liberals have traditionally relied on the courts to win policy battles.
“Republicans and conservatives spend a lot of time saying things should be decided by legislatures and not the courts — for example, Roe v. Wade,” Norquist said, referring to the landmark Supreme Court case establishing a woman’s right to an abortion.
Norquist predicted that new regulations governing healthcare and carbon emissions would face stiff legal challenges but warned that fellow conservatives should not rely too much on the courts.
David Rivkin, a partner at Baker Hostetler who handled deregulatory initiatives under former President George H.W. Bush, said healthcare reform would be vulnerable to several constitutional challenges.
The claim that has garnered the most attention has come from Republican state attorneys general who have targeted a provision to exempt the state of Nebraska from picking up the future Medicaid costs of new enrollees.
“The deal struck by the United States Senate on the ‘Nebraska Compromise’ is a disadvantage to the citizens of 49 states,” they wrote in a Dec. 30 letter to Senate Majority Leader Harry Reid (D-Nev.) and House Speaker Nancy Pelosi (D-Calif.).
Rivkin and other argue that healthcare reform violates the Constitution by mandating that individuals purchase insurance or pay a fine.
Rivkin said the Supreme Court rejected the proposition that Congress, under the Commerce Clause, could regulate non-economic activities, because they may have an indirect economic impact.
Conservative legal experts say the healthcare reform bill could also face a challenge on the grounds that it would require state insurance regulators to set up health insurance exchanges and impose new rules on the industry. Rivkin said this would violate the Constitution’s prohibition on the federal commandeering of state officials and resources.
Liberal legal experts have dismissed Republican legal claims as unfounded.
“Their arguments appear unlikely to gain traction with the current Supreme Court, and, indeed, represent approaches and theories that have been repudiated by justices across the court’s ideological spectrum,” he said.
Lazarus argued that under the Republicans’ logic, Medicare and Social Security would also raise constitutional questions.
In a floor speech last month, Hatch said, “Congress does not have authority to require that individuals purchase health insurance and that Congress cannot tax certain health insurance plans in some states but not in others.”
Hatch said these issues “could well be the basis for future litigation challenging this legislation should it become law.”
The Senate also voted on — and rejected along party lines — an objection Ensign raised as to the constitutionality of requiring individuals to purchase health coverage.
“This mandate is unconstitutional and I will do everything in my power to ensure Congress does not legislate beyond what our Constitution allows,” Ensign said after the vote.
Republican legal experts say they can more clearly envision the specific challenges to the healthcare bill because it is on the cusp of passage. But they say it won’t be the last.
“There will be all kinds of disputes over what’s going to happen as a result of administration’s decision to say carbon dioxide is a pollutant,” said Richard Samp, chief counsel at the Washington Legal Foundation. “I understand people on both sides of the issue will be challenging the administration in court.”
Samp said his group has not yet made a decision on whether to fight healthcare reform or global warming regulations in the courts.
Some Republicans say the card-check bill could be challenged on the basis that it would violate protected political expression by not requiring secret ballots to organize a union. Senate negotiators, however, have discussed dropping that controversial provision.