Health Care Repeal Fails in the Senate

BY Quinn Bowman  February 2, 2011 at 7:02 PM EDT

Republican efforts to repeal President Obama’s signature health care reform law failed in the Senate Wednesday after supporters of repeal failed to garner the necessary 60 votes to overcome a procedural hurdle.

An amendment offered by Sen. Mitch McConnell of Kentucky called “Repealing the Job-Killing Health Care Law Act” would have been attached to a bill reauthorizing the Federal Aviation Administration required 60 votes because of a procedural rule. It failed by a vote of 47-51, with all 47 Republican Senators voting for repeal and all 51 Democrats voting against it. Sens. Joe Lieberman, I-Conn., and Mark Warner, D-Va., did not vote on the amendment.

Senate Majority Leader Harry Reid, D-Nev., said in a statement after the vote that Republicans should give up on their efforts to stop the health care law.

“It’s time to move on from extreme, ideological plans to repeal a health care law that is lowering prices, expanding access to care and lowering our deficit. There is plenty of work left to do together to create jobs, expand our economy and move this country forward,” Reid said in the statement.

The failed GOP Senate effort follows a successful House vote on Jan. 19 to repeal the bill. That vote also fell almost entirely along party lines. This effectively ends Republican efforts to repeal health care reform, which was a major theme of the GOP gains in the midterm election in 2010.

McConnell acknowledged that election message immediately after the vote.

“Senate Republicans promised the American people we would vote to repeal, and we have done that. But this fight isn’t over,” McConnell said in a statement. In a press conference following the vote, McConnell vowed to bring up repeal again and called the vote just the beginning of a continuing effort.

The Senate passed a separate amendment to the health care law that eliminates a tax form reporting requirement for purchases more than $600 that was unpopular with businesses and had strong bipartisan support. That amendment passed 81-17.

Repeal of the requirement, according to the New York Times, would cost $17 billion over ten years. The Senate amendment pays for it by using money already appropriated for spending; and mandates the Director of the Office of Management and Budget decide where the cuts are made.

The ongoing drama surrounding the health care law has heightened earlier this week when a U.S. District Judge in Florida ruled that the individual mandate that all Americans purchase health insurance in the law was unconstitutional.

Sen. Richard Durbin, D-Ill., chaired a hearing on that subject earlier Wednesday, which gave Senators on the judiciary committee an opportunity to listen to analysis from legal scholars about the merit, or lack of merit, behind Judge Vinson’s decision.

Democrats emphasized that the case would more than likely reach the Supreme Court and that the decision of one judge doesn’t mean the end of their party’s signature achievement in the last decade. Republicans looked to the witnesses to expound on the idea that the health care law, and the individual mandate in particular, was an unconstitutional overreach by Congress that forced Americans to buy a product.

The debate centered around one of the main aspects of the lawsuit aimed at invalidating the health care law – whether not buying health insurance was an activity that Congress was able to regulate. Judy Woodruff moderated a discussion on that topic last year between one of the attorneys in the lawsuit and then-Ohio Attorney General Richard Cordray, which you can watch here.

Randy Barnett, a professor of legal theory at Georgetown University, criticized Congress’ decision to use the individual mandate to make the expanded insurance program possible was an overreach.

Barnett described the rationale for allowing Congress to force Americans to buy insurance was similar to giving Congress “general police power” in his prepared testimony to the committee. “Congress exercises its commerce power to impose mandates on insurance companies, and then claims these insurance mandates will not have their desired effects unless it can impose mandates on the people – which would be unconstitutional if imposed on their own,” Barnett wrote.

Walter Dellinger, a law professor at Duke University and former solicitor general to the United States, told the committee that health care law’s individual mandate was similar to Social Security and Medicare – and that instead of forcing Americans to pay the government directly for services, it gives them a choice as to which insurance company to pay. He also argued against the health care lawsuit’s contention that people who do not buy health insurance are being punished for “inactivity.”

“This is descriptively inaccurate because the penalty for failing to maintain a minimum amount of insurance apples only to those who participate in the economy…and virtually everyone subject to the penalty participates in some way in the health care market,” he said in his prepared statement.