Clarification to This Article
An earlier version of this story should have made clear, in a quote in which Simon Lazarus of the National Senior Citizens Law Center explained a legal argument used by opponents of the law, that Lazarus himself strongly disagrees with the argument. This version has been clarified.
Senate rejects repeal of health-care law as fight shifts to courts

By David A. Fahrenthold and N.C. Aizenman
Washington Post Staff Writers
Thursday, February 3, 2011; 11:08 AM

On Capitol Hill, the battle over the health-care overhaul law has become a kind of scripted political theater. On Wednesday, Republicans in the Senate tried to repeal the law, as expected.

Democrats had the votes to beat them, as expected.

But now, the legal fight over the law threatens to overshadow the drama that Washington has been rehearsing.

Two federal judges have struck at a key provision of the legislation, ruling that Congress cannot force individuals to buy health insurance. These cases are almost certainly headed for the Supreme Court, which many predict will decide the law's fate by the spring of 2012.

And now, legal experts say, it seems possible that the high court might strike down all or part of the law.

"Certainly, it's becoming more and more clear that there's a real legal issue here, as compared to a year ago," said Ilya Somin, a law professor at George Mason University, "when people said this was just frivolous and had no chance of succeeding."

On Wednesday, the Senate voted overwhelmingly, 81 to 17, to strip an unpopular tax-reporting provision of the law that opponents say overburdens small business. But, in a long day of emotional speechifying, that was about the only thing Democrats and Republicans agreed on.

Republican senators called for a repeal of the health-care overhaul, saying it will burden state and federal budgets with massive new costs. Democrats responded by saying that the GOP has no plan to replace the law.

"Republican Party . . . if you want to repeal, then let's go replace," Sen. Barbara A. Mikulski (D-Md.) said in a floor speech. "I want to hear their ideas for replacement. I challenge them right here, right now, today, on this amendment."

In the end, the repeal was defeated, 51 to 47. All Democrats present voted to keep the law. All Republicans present voted to repeal it. Now, the two parties will settle in for a year of smaller battles, both believing that time is on their side.

"There's a narrative I've seen and read out there that this was somehow a futile act because Republicans didn't have the votes to repeal Obamacare. But I have to tell you, these are the first steps in a long road that will culminate in 2012 whereby we will expose the flaws and the weaknesses in this legislation," Sen. John Cornyn (Tex.) said at a news conference held by GOP leaders after Wednesday's vote.

Republicans in Congress will seek to deny the Obama administration the money it needs to implement parts of the law. They could try to strip out specific provisions, such as some of the cuts to Medicare.

They might win a few of these skirmishes. But even if they lose, Republicans could use the assault as a campaign issue in 2012.

Democrats, by contrast, think a protracted health-care battle could favor their side. They think Americans will become attached to the law's provisions - including an end to lifetime caps on health insurance benefits and a ban on denial of coverage for children with preexisting conditions - and turn against the GOP.

20 lawsuits pending

But the unpredictable contest in the courts could overtake Congress's script.

The law is being challenged in 20 pending suits. In two cases, federal judges have upheld it. But in two others, including one in Florida on Monday, judges have ruled against it. These cases are likely to be heard in midlevel appeals courts before reaching the Supreme Court.

Legal scholars' view of the effort, once widely dismissed as a quixotic political tactic, has already undergone a sea change. The first ruling overturning the law, by U.S. District Judge Henry E. Hudson of Virginia in December, was the catalyst, said Randy Barnett, a Georgetown law professor who has filed briefs opposing the law.

"There's no logical reason why one judge's opinion should have that much effect, but it really did," he said. "It was like getting hit over the head with a two-by-four. Suddenly they had to take these arguments seriously."

And Monday's decision by U.S. District Judge Roger Vinson in Florida - which at 78 pages is nearly twice as long as Hudson's - cemented that impression.

"They can no longer dismiss Hudson's ruling as a one-off," Barnett said, "and the breadth and depth of Judge Vinson's opinion is very impressive."

If law professors still differ on the possible outcome, there is now a consensus that the lawsuits are teeing up a seminal showdown in the Supreme Court over the scope of congressional power under two of the Constitution's most far-reaching provisions: the commerce clause and the necessary and proper clause.

Defining 'commerce'

First, the Constitution empowers Congress to regulate interstate commerce. Since the 1930s, the Supreme Court has interpreted that as a wide array of actions that substantially affect commerce, even if only indirectly.

Opponents of the health-care law, however, say its individual mandate is about something else: inaction. The provision would penalize those who have not bought insurance.

If Congress can crack down on those people, they say, why not try to bring down health-care costs by penalizing people who don't eat enough healthful vegetables?

The argument that "if Congress can do this, then it can make you eat broccoli" is a "baseless fiction, akin to 'death panels' and similar smear tactics from health reform opponents," said Simon Lazarus of the National Senior Citizens Law Center, who supports the new health-care law.

The other key words in contention are "necessary and proper." The Constitution empowers Congress to make all laws "necessary and proper" to carry out its enumerated powers.

Supporters of the law say the individual mandate is necessary to its insurance regulations. They argue that some of those rules would fall apart without the mandate - particularly the prohibition against insurers denying coverage or charging higher rates to people with preexisting conditions.

If people could put off buying insurance until they got sick, the argument goes, insurers would go bankrupt or be forced to raise their rates to unworkable levels.

'Just a rehearsal'

Although politicians are aiming their arguments at a nation of millions, the real audience for these arguments is just nine. Or maybe just one.

The high court's decision, assuming it does get the final word, may turn on its "swing justice," who frequently breaks ties between the four liberals and four conservatives on the bench.

The battle in the lower courts is "certainly a rehearsal just for the Supreme Court," said Richard Fallon, a law professor at Harvard. "It's essentially a rehearsal for Anthony Kennedy."

Staff writer Felicia Sonmez contributed to this report.

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