By Alexander Bolton - 03/29/10 10:00 AM EDT
Republicans view Chief Justice John Roberts and the Supreme Court as a last line of defense against the new healthcare reform law.
President Barack Obama signed the sweeping healthcare law on Tuesday and later in the week challenged Republicans who vowed to campaign for its repeal to “go for it.”
“It’s very probable that a number of provisions in this monstrosity violate constitutional principles,” said Sen. Jeff Sessions (Ala.), the senior Republican on the Senate Judiciary Committee. “I think there will be a lot of ongoing litigation for years to come.”
Sessions said the provision in the law that requires individuals to buy insurance or face a penalty raises “very serious constitutional questions.”
“I think the Supreme Court could very well confront that issue, and there will be others in the legislation,” he said.
Senate Republican Leader Mitch McConnell (Ky.) said last week that “repeal and replace” would be the GOP campaign slogan of 2010.
But Republican lawmakers acknowledge it will be difficult to do so legislatively, at least in the foreseeable future.
Even if Republicans capture majorities in the Senate and House, Obama would veto any repeal legislation. And if Obama loses reelection, Republicans must still overcome the 60-vote hurdle in the Senate.
Democrats say healthcare reform will surge in popularity once people begin to see benefits, such as subsidies to buy insurance.
Sessions said he would prefer if Congress repealed the legislation and did not have to rely on the Supreme Court.
“My preference is that it should be altered and redone by the same people who did it, the Congress,” Sessions said, although he admitted such a course of action would present “a lot of problems.”
Some Democrats view the court with trepidation since it struck down a major tenet of campaign finance law earlier this year, allowing corporations to spend unlimited sums to influence elections. The decision is considered highly favorable to Republicans.
Other Republicans besides Sessions are looking to the Supreme Court to weigh in.
“There are such significant issues that the court could very well declare the bill unconstitutional,” said Sen. Saxby Chambliss (R-Ga.).
Chambliss highlighted several provisions the court could strike down, such as a mandate requiring individuals to buy health insurance or pay a tax and federal payments that are more generous to certain states.
“We do things from time to time that favor one state or congressional district over another, but this is different because it’s such a massive legislation,” Chambliss said.
Obama on Tuesday will sign a companion measure to put the finishing touches on reform. The so-called fixes bill will offer more generous subsidies to low-income people and raise Medicare payroll taxes on unearned income, among other changes.
The companion health reform bill would repeal a provision to funnel extra Medicaid payments to Nebraska — a deal that became known as the “Cornhusker Kickback” — but would leave in place extra funding for Louisiana, which still suffers from the effects of Hurricane Katrina. Republicans have called this second deal the “Louisiana Purchase.”
More than a dozen state attorneys general have already announced plans to challenge the constitutionality of healthcare reform.
Some prominent legal scholars have dismissed these suits as frivolous. Others have said the unprecedented nature of the law underscores the uncertainty of the legal outcome.
“My copy of the Constitution doesn’t have an individual right not to be insured,” said Charles Fried, a constitutional scholar at Harvard Law School, who served as solicitor general under former President Ronald Reagan.
“I am prepared to say it’s complete nonsense,” Fried said of constitutional challenges to healthcare reform.
He argued the individual mandate to buy insurance is similar to a lot of taxes.
“If you don’t sign up for insurance, then you’re going to be some kind of drag on the system,” said Fried, who argued that the federal government has a right to tax behavior that costs society as a whole.
But Randy Barnett, a constitutional expert at Georgetown Law School, said the federal government has never used its power of taxation in such a way, to compel people to buy a product from private companies.
Barnett said Roberts “has shown no evidence of being radically inclined toward limiting congressional power,” adding that if the court strikes down the bill, “it would be exceptional.”
Barnett noted, however, that in recent years the court has curbed congressional powers in rulings that were considered very surprising at the time.
He cited the court’s decisions against the Violence Against Women Act of 1994 and the Gun-Free School Zones Act of 1990, which came down as complete surprises.
Some Democrats are concerned about the Supreme Court’s recent willingness to break with precedent in the campaign finance law case, Citizens United v. Federal Election Commission. Democrats denounced the 5-4 decision as radical, and it has left them leery of future rulings.
Some Democrats are further disconcerted by the small feud that has flared between Obama and Roberts.
Obama chastised the court during his State of the Union address.
“Last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests — including foreign corporations — to spend without limit in our elections,” Obama told Congress.
Roberts jabbed back at the president this month by telling a group of law students the annual address has “degenerated in to a political pep rally."
Fried, however, said the legal grounds for the successful challenge against limits on corporate political spending were “completely different” from the underpinning to suits against healthcare reform.
Fried said the court “telegraphed” its campaign finance decision “a long time ago” in previous cases, such as Federal Election Commission v. Wisconsin Right to Life.
Douglas Kmiec, the chairman of constitutional law at Pepperdine University, which is regarded as a conservative-leaning school, sided with Fried.
“While one can perhaps understand the sting of the loss for the GOP, these lawsuits have no real likelihood of success under long-established precedent,” said Kmiec.
Kmiec described the court’s rulings against the Violence Against Women Act and the Gun-Free School Zones Act as aberrations.
“Neither of these cases has commanded great deference [or] has been applied consistently to narrow federal authority as against the regulatory power of the state,” Kmiec said.