Wednesday, March 24, 2010


Conservative opponents of the recently signed health care reform law better hope that their legal attempts derail efforts to enact the measure.

There are a number of reasons why all efforts to stop enactment of the lopsided Democrat-supported measure will require high hurdles.

First and foremost, the argument for repealing the law would require a landslide takeover of Congress by Republicans. Not only would they need to win a majority of seats – they would require a supermajority and here’s why.

If the GOP succeeded in winning Congress and passed a full-throttle repeal, it would still require a Presidential signature to become law. Improbable, considering Obama will sing the praises of the reform measure as a signature accomplishment of his administration.

So one could reasonably expect a veto of a repeal effort, which would then require a two-thirds vote of both Houses of Congress to overturn. That means the Senate would have to find 67 sympathizers and 288 would be needed in the House of Representatives. I’ve yet to see any projections that would come close to this political outcome in November and we’ve seen how difficult the threshold is to get 60 Senators to agree to anything.

That leaves repealers with the prospect of delaying or denying the new law’s impact through legal remedy. Several national articles have quoted constitutional scholars who say that the argument for states’ rights over this federal law remain a possibility, but a long-shot. Others are more conclusive in their analysis claiming that legal challenges won’t derail the new law.

While it’s under review, an injunction could be ordered, which might stall the immediate changes the law requires.

Still, it’s the best prospect that the repeal movement has. While the political rhetoric of a repeal pleases those who want to see the reform measure scrapped, the political reality is that the courts may be the only route to make that happen. Taking over Congress by a large enough margin would require a more historic act than the signing of the health reform law itself.