Lawmakers Not On Sidelines As Health Law Repeal Gains Momentum In Courts

A decision this week by a federal judge in Ohio marks at least the third time a legal challenge to Democrats' healthcare law has been allowed to go forward, underscoring the extent to which the legal push for repeal is gaining momentum.

While top-ranking Republicans have acknowledged that they won't be able to fulfill their campaign promise to “repeal and replace” the law so long as a Democrat sits in the White House, many see promise in the court fight against it. A number of Republicans have signed onto a 21-state challenge to the law that seems almost certain to end up at the Supreme Court.

Newly elected governors in at least five states are also preparing to join the fray, even as advocates of the law push back.

Robert Alt, a senior legal fellow at the Heritage Foundation, said the interest from Republicans in the lawsuit stems partly from the midterm elections.

"Don't underestimate the fact that the election results really created a strong impetus for the Republicans to demonstrate that they're taking an active role" in repealing the law, Alt said.

He added that the legal challenges could have repercussions in Congress over the next two years, especially for Democrats in conservative districts where Tea Party groups are hosting regular readings of the Constitution.

"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."

The Ohio decision came down on Monday. Judge David Dowd of the U.S. District Court for the Northern District of Ohio issued a split ruling in a case brought by the conservative U.S. Citizens Association. Dowd rejected three claims but agreed 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 made clear that he expects the Supreme Court to get involved. "It is apparent to the undersigned," Dowd wrote, "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."                         

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