by Jessica Rettig
Federal judge in Florida declared the law unconstitutional
Republicans won another victory over the Democrats' healthcare reform law, as a federal judge in Florida, Roger Vinson, declared that a federal requirement to buy health insurance, which would go into effect in 2014, is unconstitutional. He sided with the 26 states that challenged the law, knocking it down in its entirety. "Because the individual mandate is unconstitutional and not severable, the entire Act must be declared void," Vinson wrote in his opinion.
With appeals expected, the question over the law's constitutionality will ultimately rest with the Supreme Court. "My conclusion in this case is based on an application of the Commerce Clause law as it exists pursuant to the Supreme Court's current interpretation and definition," Vinson also wrote. "Only the Supreme Court (or a Constitutional amendment) can expand that."
Until then, there's a number of ways the opponents of the law can keep up their fight.
They have been at it since the law was first introduced as a bill, but Republicans still say that the fight against the Affordable Care Act is just getting started. The House vote to repeal the healthcare law was "the end of the beginning of our push to make quality healthcare more affordable and accessible for all Americans," a group of Republican leaders wrote in a recent op-ed.
As they set their game plan moving forward, the GOP has a cadre of tactics at its disposal to either undo the healthcare law directly, or undo public support for the law, building the case for its repeal. Below are 10 ways that Republicans can fight against the Democrats' landmark healthcare reform law.
1. Pass repeal legislation.
Republicans vowed to repeal the healthcare law during their 2010 campaigns, and in mid-January, those in the House delivered, passing a bill to repeal the Patient Protection and Affordable Care Act, 245 to 189. But apart from keeping part of the GOP's "Pledge to America," Republican lawmakers accomplished little with the repeal legislation, which Senate Democrats are expected to stall indefinitely. Senate Majority Leader Harry Reid has said that the Senate won't take up the House-passed bill. And even if Republicans use procedural tactics to force them to do so, it'd be unlikely that the right could get enough Democrats on their side to reach 67 votes. Without this veto-proof majority, President Obama has final say on the bill, and there's no chance he would forfeit the law he worked so hard to push through.
2. Take the law to the courts to declare it unconstitutional.
Nearly two dozen lawsuits have been brought against the federal government challenging the legality of the law's requirement that all individuals must have health insurance. While most of those cases have been thrown out, two have backed up the constitutionality of the law, saying that the federal government's individual mandate is permitted under the "commerce clause" in the Constitution. The clause gives Congress jurisdiction over commerce that extends across state borders.
Two judges have ruled against the law. On December 13, U.S. District Judge Henry Hudson ruled in favor of the state of Virginia, represented by Attorney General Ken Cuccinelli, saying that the commerce clause doesn't give Congress the right to penalize individuals for "inactivity," or not doing something, such as buying health insurance. The Justice Department has since appealed the ruling. And today, a judge in Florida ruled against the law in another lawsuit in which 26 states and the National Federation of Independent Business sued the federal government over the individual mandate and its ability to force states to pay for changes to Medicaid.
The ultimate decision on the constitutionality of the healthcare law will likely come from the U.S. Supreme Court, but it could take years before they hear the case.
3. Cut down the law provision-by-provision.
As a full repeal efforts are held up, Republicans in Congress can introduce legislation to instead repeal specific provisions of the law, one at a time. However, since Senate Democrats and President Obama can block any attempts to pass such bills, Republicans may try to target the least popular provisions first, says Drew Altman, president and CEO of the Kaiser Family Foundation. For example, a bipartisan-supported bill has already been introduced to repeal a tax rule in the healthcare law that requires businesses to file a 1099 form to the Internal Revenue Service for all purchases over $600.
According to Brian Darling, director of government relations at the Heritage Foundation, the healthcare law's opponents would gain the most if they could pass a bill to undo the individual mandate, since so much of the law rides on that provision. Though it's a long shot, Darling says there's a possibility that due to negative public opinion over the mandate -- three in four people say the mandate is unfavorable, according to a recent poll by the Kaiser Family Foundation -- it may be possible to get enough politically vulnerable Democrats to approve its repeal. "Everything's built around the individual mandate in the bill," says Darling. "That is a pillar of Obamacare, and if you take that pillar out, the construct implodes on itself."
4. Defund the law.
It takes money to implement laws. So if the GOP can't stop the healthcare law itself, their next strategy is to stop funding it. As the budget fight ramps up, Republicans have said they would try to withhold funding for the bureaucracies that handle the implementation of the law, namely those under the Department of Health and Human Services, run by HHS Secretary Kathleen Sebelius. However, due to the nature of the law, only a fraction of the healthcare law's spending can be challenged during the appropriations process. Also, according to the recent Kaiser poll, 6 in 10 Americans disapprove of the defunding tactic, so the strategy may be harder to get past the public.
5. Come up with an alternative.
Republicans' calls for repeal have often been followed by commitments to replace the Affordable Care Act with their own version of reform. Indeed, the day after the healthcare repeal bill passed in the House, Republicans passed a resolution ordering committees to begin drafting substitutes for the current law. "House Republicans voted for a full repeal of this law, as we pledged to do, and we will work to replace it with fiscally responsible, patient-centered reforms that actually reduce costs and expand coverage," Wisconsin Rep. Paul Ryan said in the GOP's official State of the Union response.
If the GOP can put together a solid plan that enough Democrats approve, then the left may be more open to replacing their own act. However, Republicans have yet to put forth a viable alternative.
6. Delay implementation of the law.
According to Michael Cannon, director of health policy studies at the Cato Institute, a libertarian think-tank, Republicans could try to delay the implementation of the law through the legislative process. By voting to delay the implementation of certain aspects of the law, such as all the major provisions planned for 2014, for one or two years, he says, Republicans will have more time to make their argument against it, and may have more time to get political control. "That's something that doesn't directly repeal the law, but can help make the case against it," he says.
7. Launch an oversight campaign.
Republicans can demand extra oversight investigations of the agencies responsible for setting the law in motion, such as the Internal Revenue Service, which has control over how taxes in the law will be enforced, or HHS. By pulling the administration officials off their tasks and onto Capitol Hill for hearings, Republicans can indirectly delay implementation. Also, it could help the GOP's public messaging, says Darling. "[It] may change minds. One purpose of oversight is to make sure that they publicly disclose how they're going to implement," said Darling. "But it also is a way to educate the American public and members of Congress as to provisions that might become problematic in the future."
8. Get the pro-lifers on their side.
Though President Obama issued an executive order banning the use of public funds for abortion, Republicans and Democrats are still divided on how the healthcare law deals with the matter. House Speaker John Boehner has announced a bill that would issue a ban against the use of federal funds for abortions. Also, according to Cannon, as a way around direct defunding of the law, the GOP could try to bring up the abortion debate again during the appropriations process. While the outcome won't necessarily matter, by forcing Democrats and Obama to vote for or against anti-abortion language attached to the healthcare appropriations bills -- like something similar to the so-called "Stupak amendment" that never made it into the final law last year -- Republicans can ignite the pro-life cause against the Democrats yet again, he says.
9. Frame it as a tax issue.
Raising taxes has never been an easy sell with the public, and in the case of healthcare reform, it's no different. According to Darling, one way that Republicans could get the public on their side is to force Congress to vote separately on taxes included in the law. According to Americans for Tax Reform, a conservative group, the healthcare law has more than $500 billion in tax increases, which pay for other reforms. Without the tax revenue, these reforms wouldn't be possible, he says. "A member of Congress could go after all the taxes and get them struck from the bill," Darling says. "Conservatives would be very supportive, and it'd be a tough vote for many members. It's a straight up tax vote on Obamacare."
10. Take control of the Senate and the presidency in 2012 Elections.
The strategy and messaging around healthcare reform has to do with the legislation itself, of course, but the GOP also has a greater goal: To unseat both President Obama and the Democratic majority in the Senate during the 2012 elections. If the Republicans can transfer the momentum of the repeal fight into a takeover of the Senate and the White House in 2012, then they may ultimately get their way on reform. "The strategy begins and ends in 2012," Altman says.
10 Ways the GOP Can Take Down Healthcare Reform | Politics & Healthcare
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