House Repeal Vote: Health Care Reform Goes Under the Knife

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These gambits won't get serious until someone proposes to cut off the money. That could happen in March, when the House must initiate legislation to fund the government through September 2011. Likely to be on the chopping block is any spending directly or indirectly related to the Affordable Care Act, such as outlays for HHS and the Internal Revenue Service.

But even here, Congress's hands are partly tied: while some $10 billion to $20 billion in health-reform administration funds needed over the next 10 years could get chopped, the dirty little secret of federal health care funding is that the vast majority of spending in the law is mandatory; lawmakers are limited in their ability to withhold it. (Funds to expand coverage through Medicaid and federal subsidies to purchase private insurance fall into this category.) Representative Paul Ryan, the new chairman of the House Budget Committee, said in October the defunding effort probably would not work and would, at best, lead to a "stalemate."

IN THE COURTS
Is it constitutional?
While Republicans in Congress will mostly nibble at the edges of reform, governors and state attorneys general have mounted a more frontal assault. At least 20 states have filed suit to stop health care reform by judicial fiat, arguing in federal courts that Washington lacks the authority under the Constitution's commerce clause to force people to purchase health insurance. A federal judge in Virginia has ruled the individual-mandate provision unconstitutional, and a second jurist in Florida has indicated he may follow. "If [Washington] decided everybody needs to eat broccoli because broccoli makes us healthy," asked Judge Roger Vinson of Florida's Northern District at a recent hearing, "could [it] mandate that everybody has to eat a certain amount of broccoli each week?"

The Obama Administration argues that it can fine uninsured Americans because the penalty is a tax, which the federal government has the authority to levy. Even if it weren't a tax, however, the Justice Department says America's health insurance market and its health care system are so inextricably intertwined that Congress has plenty of room under the commerce clause to regulate them as it sees fit. Two federal judges have agreed so far, ruling that the individual mandate is within the bounds of federal power. The Justice Department points to a 1942 Supreme Court decision that Washington could determine how much wheat a farmer could grow, in part because the size of his crop could affect prices nationally.

"The Administration has a stronger case based on precedent, but it is not overwhelming," says Jonathan Turley, a law professor at George Washington University who voted for Obama. "There is, in fact, a legitimate and a serious constitutional question raised by the health care bill."

The Administration's arguments will be stacked against other Supreme Court decisions if the individual-mandate question lands before the high court, which seems likely. In 1995, for example, a majority of justices were not persuaded that the commerce clause allowed the federal government to enforce a ban on guns in school zones, on the grounds that firearms in classrooms lead to violent crime and depress the economy.

Which means opponents have already achieved one goal: casting uncertainty on a key provision of the law. That alone could slow its implementation. And in the hands of a Supreme Court that tilts to the right, it's conceivable the individual mandate could fall. Would Obama's reform have much teeth without it? Yes and no. The Administration has gone out of its way to say portions of the Affordable Care Act could survive without an individual mandate. New insurance marketplaces, called exchanges, could still be established; Medicare could still be significantly cut and Medicaid dramatically expanded. However, new insurance regulations requiring insurers to cover everyone even those with pre-existing conditions at the same prices would be jeopardized without the individual mandate.

IN THE STATES
Will money talk?
With so many state treasuries running short and millions of Americans swelling the uninsured's ranks, Democrats knew most states would jump at health reform's massive federal cash infusion. That has helped create what HHS Secretary Kathleen Sebelius calls a "parallel universe," in which many of the same governors who are suing to overturn the law are also quietly accepting the money that comes with it. "For lots of governors," she tells TIME, "they have resources to provide for their constituents that they wouldn't have otherwise."

Time.com

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