Healthcare Law Repeal DOA in Senate; Likely Headed to the Supreme Court

The Republican House of Representatives’ attempt to repeal the Patient Protection and Affordable Care Act was DOA — as expected — in the Democratic-controlled Senate.  Voting along strict party lines, all 50 Democratic Senators who were present and one Independent gave the repeal a thumbs down.  All 47 Republican Senators voted in favor of repeal.  Two Senators – one a Democrat and the other an Independent – were not present to vote.

Senator Barbara Mikulski (D-MD) delivered a scornful speech during the heated debate, saying the Republicans are offering “one more hollow, symbolic pander-to-the-masses amendment.  If you want to rewrite the bill, keep your promise, Republican Party, that if you want to repeal, then let’s go replace.  I want to hear their ideas for replacement.  I challenge them right here, right now, today on this amendment.”  Not surprisingly, Republican Senate leaders disagree with Senator Mikulski’s stance. “We think it is just the beginning,” Senate Republican Minority Leader Mitch McConnell (KR-KY) said Wednesday after the Senate voted to reject an amendment he offered to repeal the law.  “This issue is still ahead of us and we will be going back at it in a variety of ways,” McConnell noted.  “We’ll be looking at it in every different way to revisit it.”

The Republicans can claim a small victory as the Senate voted to repeal the 1099 requirement that was a highly unpopular inclusion in the healthcare reform law. Many perceived this as a tax on healthcare consumers and small businesses because it required anyone performing a transaction equaling $600 or more to file a 1099 form with the IRS.  The cost of the requirement had the potential to add up to 40 percent for some small businesses, which could have resulted in closures or layoffs.  The amendment passed the Senate by an 81 – 19 vote and has President Barack Obama’s support. Opponents of the amendment, such as Senator Carl Levin (D-MI), said that Congress, not the White House, should wield the budget-cutting ax.

The Senate’s actions come on the heels of a decision by Florida Federal District Court Judge Roger Vinson that it is unconstitutional for Congress to pass a healthcare law that requires Americans to obtain insurance coverage.  Judge Vinson’s decision created a 2 – 2 tie in lower courts. According to Judge Vinson’s decision, “The act, like a defectively designed watch, needs to be redesigned and reconstructed by the watchmaker.”

Judge Vinson’s decision increases the likelihood that the Affordable Care Act will end up in front of a Republican-dominated Supreme Court. “A year ago, it was a long shot,” said Randy Barnett, a law professor at Georgetown University.  “Now, it’s seen as a 5 to 4 case.  And nobody’s sure which way the 5 – 4 will come down.”  The stakes are enormous for the defining achievement of the Obama presidency.  The decision also has the potential to define the limits of federal power for generations.  “This case could define federalism for the next 100 years,” said Jonathan Turley, a George Washington University constitutional law professor.  “This is a very difficult case for the Supreme Court as an institution.  You have a slight majority of the states opposing it.  You have a national law that’s affecting hundreds of billions of dollars and services.  This is the type of case the justices do not relish.”

Additionally, Virginia Attorney General Ken Cuccinelli has asked the Supreme Court to fast track his state’s challenge to the healthcare law, saying he thinks the legal dispute has become so important that the nation’s highest court should take it up immediately. “We want to eliminate the uncertainty in both our governmental budgets and in the private sector,” he said.  “We want to eliminate at least the uncertainty associated with health care.” The Obama administration opposed the move, saying the case should follow the regular process.  This would put off until 2012 a Supreme Court ruling on the law that aims to provide more than 30 million uninsured Americans with medical coverage and cracks down on unpopular insurance industry practices.

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