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Congressional Republicans are moving to re-establish health care as a political weapon against Democrats, as the Supreme Court prepares to consider President Barack Obama's reform law on the cusp of the 2012 elections.
The court is expected to hear arguments in March regarding the constitutionality of the law's federal mandate to purchase health insurance, and the justices could reach a decision by June. And while Democrats appeared inclined to wait patiently for the court's decision, top House and Senate Republicans on Monday were already considering filing briefs and exploring other avenues to influence what they suspect will be the re-emergence of health care as a major political issue.
"Throughout the debate, Senate Republicans have argued that this misguided law represents an unprecedented and unconstitutional expansion of the federal government into the daily lives of every American. Most Americans agree," Senate Minority Leader Mitch McConnell said in a statement. The Kentucky Republican is likely to file an amicus curiae — or "friend of the court" — brief in the case, according to a senior GOP Senate aide.
Democrats and the White House expressed confidence that the mandate to purchase insurance will be found constitutional. Republicans are equally certain of the opposite, and perhaps that is why both sides are cheering the Supreme Court's decision to accept the case. Under review is an 11th Circuit Court of Appeals decision that ruled the mandate unconstitutional, although other lower court rulings have upheld it.
Republicans, however, are lining up to try to exact political damage. The National Republican Senatorial Committee on Monday issued a press release to local media and grass-roots Republicans in Missouri targeting Sen. Claire McCaskill (D) over her support for the health care law. And several House and Senate Republicans are expected to sign on to amicus briefs.
Rep. Steve King (R-Iowa), a vociferous critic of the health care law, said he is exploring whether to weigh in with an amicus brief. King and many other Republicans believe that the bill's requirement that citizens buy health insurance is unconstitutional.
"I have already joined two at the lower-court level," King said. "We'll probably take a look at that and see what we might need to do. But I have not consulted with my attorneys on this at this point."
King added that he sees the Supreme Court announcement as a political winner for Republicans because either the law will be struck down, or the GOP will have another issue to help in their effort to try to defeat Obama in his bid for re-election.
"Either it is going to be found constitutional or unconstitutional. If the court finds it unconstitutional, Obamacare falls. But if they find it constitutional ... the only recourse the voters will have will be to elect a new president that will sign the repeal."
King noted that Ohio, which last week defeated an effort by Gov. John Kasich (R) to limit collective bargaining for public employees, also passed a referendum seeking to block the individual mandate.
"If the union-friendly electorate in Ohio can vote 66 percent to reject Obamacare, I think President Obama's campaign and his re-election prospects drop like a rock," King said.
"I do see it as a win-win," King said. "What I would prefer would be a Supreme Court ruling that finds the law unconstitutional because I think that preserves the structure of the Constitution, and that is extraordinarily important. But should we not prevail there, then I think it will nearly impossible for [Obama] to prevail in the election a year from now."
Though Obama did not address the court review specifically, he told a crowd at a fundraiser in Hawaii on Monday that health care reform is an example of the change he has brought to the country and that "[e]verything that we fought for in the last election is now at stake in this election," according to a pool report.
Democrats said Republicans were miscalculating the political benefits from the case.
"It will be interesting to see when Republican operatives realize that it is no longer 2010, and that this election is going to be about the economy, plain and simple," said Matt Canter, spokesman for the Democratic Senatorial Campaign Committee.
Senate Majority Leader Harry Reid (Nev.) is unlikely to counter McConnell with his own amicus brief supporting the law, according to a senior Democratic Senate aide. The Democratic Conference is similarly unlikely to be active as a group on this issue in the runup to the deliberations before the court, although supportive Democrats are expected to be vocal in defending and promoting the law.
The health care law isn't a desirable issue for all Democrats, the Democratic Senate aide conceded. However, a spokesman for House Minority Leader Nancy Pelosi (D-Calif.) did not rule out an amicus brief to the high court, and it's possible House Democrats could be more active than their Senate counterparts. Pelosi had signed previous amicus briefs in favor of the law as the challenge has made its way though the courts.
Sen. Mike Lee, who previously served as a Supreme Court clerk for Justice Samuel Alito and strongly opposes Obama's health care law, declined to predict how the justices might rule.
"Trying to forecast what the Supreme Court might do with a case is always a treacherous exercise," the Utah Republican said in a telephone interview. "We've never had a case quite like this one."
Lee added that he used to hear the same admonition from his late father, who served as solicitor general under President Ronald Reagan. The Senator recalls his father often telling him that, "At the end of the day, it's all about counting to five" — a reference to the five justices needed to secure a court majority ruling. Many observers believe that the health care decision could boil down to swing Justice Anthony Kennedy.