By Susan Brinkmann, OCDS
The push to repeal the vastly unpopular health care reform law gained considerable momentum last week when an Ohio suit challenging the law was permitted to go forward, and five newly elected Governors announced that they also plan to fight the law in court.
The Hill is reporting that Judge David Dowd of the U.S. District Court for the Northern District of Ohio issued a split ruling last Monday in a case brought by the conservative U.S. Citizens Association. Although the judge threw out three of the suit’s claims, it did agree to hear arguments that the law’s individual mandate — the requirement that people buy insurance — violates the Constitution’s Commerce Clause.
In his ruling, Dowd said he fully expects the Supreme Court to get involved. “It is apparent to the undersigned that the controversy ignited by the passage of the legislation at issue in this case will eventually require a decision by the Supreme Court after the above-described litigation works its way through the various circuit courts,” he wrote.
The Ohio lawsuit is one of about 20 healthcare reform challenges that are making their way through the court system. Thus far, only two cases have been dismissed – one in California and the other in Michigan.
But a large 21-state challenge in Florida appears to be gathering the most momentum as newly elected governors in the states of Kansas, Ohio, Oklahom, Wisconsin and Wyoming all indicated a desire to sign on to the suit. Much like the Ohio case, Florida Northern district Senior Judge Roger Vinson rejected some of the suit’s claims, but allowed challenges to the mandate to go forward.
With the majority of the public in favor of repeal, winning these court challenges is only adding to the momentum of repeal and threatens to make life very difficult for lawmakers who insist on supporting the bill.
“If you start to see a drumbeat from the courts that yes, some of these provisions are unconstitutional, that’s going to create very uncomfortable circumstances for some members,” said Robert Alt, a senior legal fellow at the Heritage Foundation, to the Hill.
The outcome of these legal challenges could have repercussions in Congress over the next two years, he said, especially for liberal members who are running in conservative districts where Tea Party groups are motivated to fight the law.
Meanwhile, incoming House Speaker John Boehner (R-Ohio) filed an amicus brief last week in support of the multi-state challenge, and a week before that, Senate Minority Leader Mitch McConnell (R-Ky.) collected 32 signatures for his own amicus filing.
Only nine “moderate” Republican Senators declined to join the amicus brief: Lamar Alexander (R-Tenn.), Scott Brown (R-Mass.), Robert Bennett (R-Utah), Lindsey Graham (R-S.C.), Judd Gregg (R-N.H.), Richard Lugar (R-Ind.), Lisa Murkowski (R-Alaska), Jeff Sessions (R-Ala.) and George Voinovich (R-Ohio). Three of them – Bennett Gregg and Voinovich – will be replaced next year with conservatives who campaigned on repeal. Lisa Murkowski’s re-election bid is currently being challenged by Tea Party favorite Joe Miller.
Surprisingly, two of the most famous moderate Republicans, Olympia Snowe and Susan Collins of Maine, agreed to sign the brief. The two may be reading the writing on the wall after the Tea Party in their state managed to flip both the legislative branch of the government and the Governor’s office from Democrat to Republican control.
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