WASHINGTON-Obamacare took its first hit from the courts in early December. Its next blow may come in early January courtesy of the new Congress.
On Dec. 13 a federal judge ruled unconstitutional the central component of the new law that forces Americans to buy health insurance.
"At its core this dispute is not simply about regulating the business of insurance . . . it's about an individual's right to choose to participate," wrote U.S. District Judge Henry E. Hudson of Virginia in his ruling.
In striking down the insurance mandate, Hudson did not suspend the law in its entirety. But his 42-page ruling, coming after two other judges had ruled in favor of the law, gives new momentum to conservative efforts against the trillion-dollar overhaul.
Soon this push will gain new allies in Congress, with 87 new Republicans joining the House of Representatives in 2011 (63 taking over seats previously held by Democrats). Rep. Steve King, R-Iowa, is one of many lawmakers demanding that the first piece of legislation introduced and passed in the new congressional session is a bill to repeal Obamacare.
"It is essential that we have a record of lawmakers who vote for repeal of Obamacare and those who do not," said King, who doesn't want such a bill cluttered by policy ideas to replace Obamacare. He fears that debate over healthcare alternatives will add controversy and divide Obamacare opponents. "The votes are there in the House for a clean, stand-alone repeal bill."
Such a bill would likely pass in the House. But in the Senate, Democrats still will hold a majority in the 112th Congress, albeit a smaller one. Passage of repeal will be harder there-but not impossible. Some moderate Senate Democrats who will go before voters in 2012, such as Nebraska's Ben Nelson, may support repeal in an effort to keep their seats.
But even if the Senate passes repeal, President Barack Obama would likely veto the measure. That is where it would die: Congressional opponents of the law do not have the two-thirds majority needed in both chambers to override such a veto.
Still, King said it is important to go through the battle if for no other reason than to respond to what voters demanded last November. In an election exit poll conducted by Rasmussen Reports, 59 percent of those who voted favored repealing Obamacare, including 48 percent who said they strongly favored repeal.
Even with the inevitable failure of such a legislative repeal, there is another strategy conservative lawmakers can employ. King says Republicans, who will control the congressional purse strings in 2011, will shift their focus towars defunding the new law through the appropriation bills Congress must pass to fund the federal government.
House Republicans may try to zero-out any Obamacare-related item in the upcoming budget. King is also pushing lawmakers to insert language in every appropriations bill that explicitly restricts any money from being spent on projects needed to implement or enforce any part of Obamacare's mandates and programs.
King argues that if lawmakers are already on record having voted for a repeal of the law, it will be easier to get them onboard with such funding restrictions.
But pro-healthcare law Democrats will not be sitting idly by while Republicans work to defang Obamacare. Already Obama administration officials have been working quietly behind the scenes to advance the new law. This extends to elements of Obamacare that didn't even make it into the final law.
The proposal to include end-of-life planning in Medicare coverage did not survive a firestorm of scrutiny during debate over the law after opponents argued that it could allow the government to stop care for the severely ill.
But starting Jan. 1, thanks to newly written regulations, the government will begin a policy of paying doctors for the controversial end-of-life care counseling sessions, according to The New York Times.
The new policy authorizes Medicare coverage for end-of-life advising (that will likely include discussions on when to cease life-sustaining treatments) on an annual basis. This is a frequency that wasn't even included in drafts of the bill. Those proposals offered to pay for such consultations just once every five years.
So while conservatives work to kill Obamacare through legislation and the courts, liberals are advancing their policy objectives through the writing of new regulations in the labyrinth-like executive branch.
As for what's in the 2,000-page law, the requirement for most Americans to buy insurance or pay a penalty is one of the most controversial elements. The December court ruling ensures that debate over the law's merits will continue well into the 2012 election season. There are nearly two-dozen Obamacare lawsuits, nearly all arguing that the new law is a dangerous expansion of federal powers. The biggest suit is in Florida, where attorneys for 20 states are fighting the healthcare law.
"The act would leave more constitutional damage in its wake than any other statute in its history," David Rivkin, an attorney for the states, told a federal judge hearing that case on Dec. 16.
The likely final stop for these legal challenges: the Supreme Court.
But King and other conservative lawmakers in Congress are hoping for legislative stopgaps while the suits slowly make their way trough the legal system.