Lawmakers not on sidelines as health law repeal gains momentum in courts

A decision this week by a federal judge in Ohio marks at least the third time a legal challenge to Democrats' healthcare law has been allowed to go forward, underscoring the extent to which the legal push for repeal is gaining momentum.

While top-ranking Republicans have acknowledged that they won't be able to fulfill their campaign promise to “repeal and replace” the law so long as a Democrat sits in the White House, many see promise in the court fight against it. A number of Republicans have signed onto a 21-state challenge to the law that seems almost certain to end up at the Supreme Court.

Newly elected governors in at least five states are also preparing to join the fray, even as advocates of the law push back.

Robert Alt, a senior legal fellow at the Heritage Foundation, said the interest from Republicans in the lawsuit stems partly from the midterm elections.

"Don't underestimate the fact that the election results really created a strong impetus for the Republicans to demonstrate that they're taking an active role" in repealing the law, Alt said.

He added that the legal challenges could have repercussions in Congress over the next two years, especially for Democrats in conservative districts where Tea Party groups are hosting regular readings of the Constitution.

"If you start to see a drumbeat from the courts that yes, some of these provisions are unconstitutional, that's going to create very uncomfortable circumstances for some members."

The Ohio decision came down on Monday. Judge David Dowd of the U.S. District Court for the Northern District of Ohio issued a split ruling in a case brought by the conservative U.S. Citizens Association. Dowd rejected three claims but agreed to hear arguments that the law's individual mandate — the requirement that people buy insurance — violates the Constitution's Commerce Clause.

In his ruling, Dowd made clear that he expects the Supreme Court to get involved. "It is apparent to the undersigned," Dowd wrote, "that the controversy ignited by the passage of the legislation at issue in this case will eventually require a decision by the Supreme Court after the above-described litigation works its way through the various circuit courts."

The Ohio lawsuit is one of about 20 healthcare reform challenges that have been filed across the country, according to information compiled by The Independent Women's Forum. While some are narrowly focused — physician-owned hospitals in Texas, for example, are alleging discrimination against their business model — several directly challenge the individual mandate.


Two judges in California and Michigan have already thrown out healthcare reform challenges.

But the 21-state challenge in Florida, filed on March 23, has been getting the most attention of all the healthcare lawsuits. Republican Attorney General Bill McCollum initially filed the suit with 19 other states and the National Federation of Independent Business.

Earlier this month, Minnesota Gov. Tim Pawlenty (R) announced that his state would become the 21st to join the suit. Pawlenty has said that repealing the healthcare law would be one of the main planks of his platform should he run for president in 2012.

"In Minnesota, I issued an executive order directing state agencies to reject participation in Obamacare unless required by law or consistent with existing state policy," Pawlenty wrote in an op-ed piece earlier this month. "I also joined the federal lawsuit that challenges Obamacare's individual mandate and invokes the 10th Amendment in defense of states’ rights and a proper view of federalism. Newly elected Republican governors should consider taking similar actions."

Incoming governors in at least five other states — Kansas, Ohio, Oklahoma, Wisconsin and Wyoming — are expected to follow Pawlenty’s advice and take actions against the health law.

Florida Northern District Senior Judge Roger Vinson last month rejected four claims in that lawsuit but allowed challenges to the law's individual mandate and its Medicaid expansion to go forward.

Incoming House Speaker John Boehner (R-Ohio) filed an amicus brief last week in support of the multi-state challenge. A week before that, Senate Minority Leader Mitch McConnell (R-Ky.) collected 32 signatures for his own amicus filing.

Only nine Republicans declined to join the amicus brief, representing a who's who of centrist Republicans: Lamar Alexander (R-Tenn.), Scott Brown (R-Mass.), Robert Bennett (R-Utah), Lindsey Graham (R-S.C.), Judd Gregg (R-N.H.), Richard Lugar (R-Ind.), Lisa Murkowski (R-Alaska), Jeff Sessions (R-Ala.) and George Voinovich (R-Ohio). Three of them will be replaced next year with conservatives who campaigned on repeal.

Bennett lost his primary to Tea Party favorite Mike Lee, a former law clerk for Supreme Court Justice Samuel Alito and one of the first candidates to take the Club for Growth's "Repeal It!" pledge.

Gregg, who didn't run for reelection, told the Fox Business Network last month that Republicans shouldn't get hung up on repealing the law but should "basically go in and restructure it." His successor in the Senate, Kelly Ayotte, called for repeal throughout the campaign.

Voinovich also declined to run for reelection and will be replaced by Rob Portman. While Voinovich was briefly considered a possible "yes" vote on healthcare reform during the early stages of the debate, Portman has also called for repealing the bill.

The notable exceptions to the amicus trend are Maine centrists Olympia Snowe and Susan Collins, who both signed onto the brief. The Tea Party has been particularly influential in that state, helping flip control of the legislative branch and governor’s mansion from Democrats to Republicans.