Why The Republicans’ Efforts To Invalidate Health Care Reform Will Likely Fail

BachmannRallyRepublicans are responding to last night’s historic passage of health care reform legislation by threatening to run a campaign to repeal it. In fact, moments after the House passed the bill, Rep. Michele Bachmann (R-MN) told protesters, “tomorrow, we’re going to file a discharge petition at the desk. We’re going to get every Republican to sign it and anybody else. If we get 218 signatures, Nancy Pelosi is forced to bring the repeal bill to the floor for a vote.” “Because we are putting the marker down now. We’re going to continue to fight to repeal this thing and we’re filing it tomorrow,” Bachmann added.

Some more, shall we say, moderate, leaders in the party agreed:

— ROVE: They also have the ability, and I hope they use it, to stand up and say as one that it will be the first priority of a Republican House and a Republican Senate to repeal this bill.” [Fox, 3/21/2010]

— ROMNEY: “For these reasons and more, the act should be repealed. That campaign begins today.” [The Corner, 3/22/2010]

— MCCAIN: “We’re going to try to repeal this and we’re going to have a very spirited campaign coming up between now and November. And there will be a very heavy price to pay for it.” [GMA, 3/22/2010]

Republicans will certainly try to run the November campaign on a pledge to repeal the bill, but it’s unlikely that they’ll muster the necessary votes or convince Americans that they should re-open the doughnut hole, allow insurers to deny coverage to children because of pre-existing conditions and bring back lifetime spending caps. As former bush speechwriter David Frum pointed out, “No illusions please: This bill will not be repealed.” Former Senate Majority Leader Bill Frist (R-TN) also predicted that “repeal’s not going to happen” this morning on MSNBC.

If conservatives can’t find a way to repeal the bill in Congress, they will likely encourage the 36 states that are already considering suing the federal government for imposing an individual mandate, to proceed with their legal challenges. Today, Florida’s attorney general confirmed that he will “file a lawsuit with nine other state attorneys general opposing the health care legislation passed by Congress” and Virginia’s Attorney General Ken Cuccinelli has promised to file suit as soon as the ink dries. Virginia and Idaho have even passed legislation allowing their citizens to opt out of the individual mandate and Arizona is considering the question on its ballot in November.

But these lawsuits seem as frivolous as the tort cases Republicans rally against. As Professor Timothy Jost of Washington & Lee University School of Law explained this morning on Washington Journal, “under the constitution as it has been interpreted by the Supreme Court — and that is really our constitution. Everyone has their own interpretation, but constitutional law is made by the Supreme Court — over the last 80 years, I do not see any serious problem with this legislation, and Congress did not either.” Jost noted that the individual requirement, which does not apply to anyone who is under the filing limit of $12,000 for individuals or $16,000 for couples or levy a criminal penalty for those who go without insurance — will likely stand up to a constitutional challenge:

JOST: Well, what the Virginia law says is, ‘nobody can make our citizens buy health insurance.’ They can say what they want to. But under the supremacy clause, a sate cannot tell the federal government what to do…the Commerce Clause says Congress has the authority to regulate commerce among the states. And since the 1930’s, that power has been interpreted very broadly….basically, the law now is that if there is any kind of economic activity involved, Congress has the power to regulate it. And of course Congress does. We have lots of federal laws, regulating all sorts of economic activity. The decision of when to buy insurance — do I buy it now when I’m healthy or do I buy it once I’m in not ambulance on the way to the hospital — is an economic decision and Congress clearly has the power to regulate it. And once Congress has the power to do something under the supremacy clause, its laws are supreme to the laws of the states and the tenth amendment only provides that states retain powers that are not granted to Congress.

Watch Jost discuss the legal precedent:

Earlier today, during an interview with Barry Young & Michele Larson on 550 AM KFYI-Phoenix, McCain was asked how much confidence he had in the state lawsuits. After pausing, the senator said, “I don’t know, except to say we’ve gotta try it… We’ve got to try it. I really don’t know, except to say, if we don’t try it, we will regret that for a long time.”