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The fight on Health Care Reform has been years if not decades in the making and even now, in its late stages, the GOP shows the sort of dogged determination that is typically reserved for World War II infantry dramas. Even as the Democrats close on the final votes in both the House and Senate, Republicans continue to mine Senate procedural histories looking for obscure provision which can be used to emasculate the bill, all the while attempting to rally votes in the House.
Few would say that the Democrats have Health Care reform wrapped up - there are still a lot of pitfalls and hurdles between Obama and the domestic policy prize he needs for the 2012 elections - but as the number obstacles the Democrats face dwindles, the GOP is preparing for the next phase. They are talking about what they will do should Health Care Reform pass.
Should Congress manage to deliver a bill to Obama's desk, the Republicans realistically have two ways of dealing with it: Legislatively and Judicially.
In the near-term, Republicans can attempt to repeal the measure legislatively: they could attempt to repeal it. Repealing Health Care Reform would have to wait, of course, until January of next year. That is the soonest Republicans can expect to take control of at least one House of Congress. The indispensable Nate Silver of FiveThirtyEight.com projects Republican pickups in in the range of 5 Senate seats or so in the 2010 election and puts the odds of a Republican takeover of the Senate at between 5% and 10% with almost no possibility whatsoever that the GOP will pick up enough seats to constitute a filibuster-proof majority.
ElectionProjection.com suggests similar pickups in the House with Democrats likely losing 20 seats to Republicans. Twenty seats is not enough to flip the chamber, however and thus Pelosi will likely stay in control of the gavel. To turn the House Republicans would have to win another 20 seats from the Democrats beyond the 20 currently projected, a difficult, but not impossible task.
Even granting the GOP the improbable extra 20 seats necessary to take the House and the even more improbable sweep necessary to recapture the Senate, the Republican ambition of repealing Health Care Reform will still run afoul of the President Obama's veto to say nothing of the enthusiastically obstructionist Democratic Senate Minority (what goes around comes around). The sorts of majorities that would enable to the Republicans to overcome these obstacles so staggeringly improbable as to not even merit mention here.
At this point the reader may be asking, "why all the focus on 2010, surely the Republicans can attempt to rally in the 2012 and 2014 races as well?" That is certainly the case, however as time passes the GOP's ability to repeal Health Care Reform becomes less about Republican political gains and more about the success or failure of the Health Care Reform itself. Come 2012, should Health Care Reform prove itself reasonably popular, Republicans will have a difficult time assailing the program. Despite GOP claims to the contrary, a number of measures in the bill will go into effect immediately and repealing those provisions could prove politically suicidal.
Despite non-stop campaigning from both sides of the aisle, Health Care Reform has polled reasonably steady since November of last year, establishing a base-line of popularity for the measure in the neighborhood of 47%. Yet as Silver points out in another post on FiveThirtyEight, the individual provisions of the Health Care Bill poll much better than the bill as a whole. Moreover, a large percentage of American have no idea that provision they favor so strongly are part of the measure now before Congress. For example: just over half of Americans are aware that the bill contains tax credits for small businesses that provide health insurance yet Americans are a staggering 62% more likely to support a bill that includes such a measure.
Assuming everything in the Democratic bill works as advertised - which is, admittedly, a big assumption - Republicans seeking to overturn the legislation will be facing down some very popular programs and the longer they are in place, the more difficult it will be to overturn them.
Perhaps a more viable political stratagem then, is to seek to overturn the bill judicially. Doing so would require bringing suit, likely against the Federal Government, on some grounds, appealing the decision to the Supreme Court, and there receiving a ruling that declares Health Care Reform "unconstitutional." A lot of Republicans and Conservatives have made a lot of noise about the supposed unconstitutionality of the Democratic plan though few have really worked through the case law to make their accusations more substantial than mere talking points.
While the right has labeled everything from Reconciliation to "Deem and Pass" unconstitutional (despite using both tactics frequently when Republicans have held power), the strongest contender for a constitutional challenge to Health Care reform is the suggestion that Congress, despite being charged to "regulate Commerce ... among the several States," lacks the power to mandate that individuals purchase health insurance.
The interstate commerce clause has long been a favorite of those seeking to extend Congressional oversight and the Court's attitude towards such justifications has changed over the years. Most recently the Rehnquist Court took a somewhat hostile view to the use of the Commerce Clause to justify the expansion of Congressional power. The Roberts Court, while ideologically similar in makeup, is yet too young for such sweeping generalizations, however, and thus predicting the outcome of such an approach is difficult.
Which may go a long way towards explaining why Virginia Attorney General Ken Cuccinelli has yet to reveal on what grounds Virginia intends to sue the Federal Government should the Health Care reform bill pass. Cuccinelli has gone on record indicating that the state will sue though the specifics of the suit - for what and why - remains up in the air. In a turn towards the bizarre, however, various commentators including MSNBC's Rachel Maddow have pointed out that Cuccinelli was caught on tape speculating on how his office might set about challenging President Obama's legitimacy as President by demanding that he produce a birth certificate.
Below the Beltway provides a helpful transcription of Cuccinelli's remarks:
Q: What can we do about Obama and the birth certificate thing?
Cooch: It will get tested in my view when someone… when he signs a law, and someone is convicted of violating it and one of their defenses will be it is not a law because someone qualified to be President didn’t sign it.
Q: Is that something you can do as Attorney General? Can you do that or something?
Cooch: Well only if there is a conflict where we are suing the federal government for a law they’ve passed. So it’s possible.
Q: Because we are talking about the possibility that he was not born in America.
Cooch: Right. But at the same time under Rule 11, Federal Rule 11, we gotta have proof of it.
Q: How can we get proof?
Cooch: Well… that’s a good question. Not one I’ve thought a lot about because it hasn’t been part of my campaign. Someone is going to have to come forward with nailed down testimony that he was born in place B, wherever that is. You know, the speculation is Kenya. And that doesn’t seem beyond the realm of possibility.
Could Health Care Reform be the "conflict" Cuccinelli is looking for? Only time will tell.
