Senate rejects repeal of health-care law as fight shifts to courts

February 3, 2011

By David A. Fahrenthold and N.C. Aizenman, The Washington Post

Democrats had the votes to beat them, as expected.

But now, the legal fight over the law threatens to overshadow the drama that Washington has been rehearsing.

Two federal judges have struck at a key provision of the legislation, ruling that Congress can’t force individuals to buy health insurance. These cases are almost certainly headed for the Supreme Court, which many predict will decide the law’s fate by the spring of 2012.

And now, legal experts say, it seems possible that the high court might strike down all or part of the law.

“Certainly, it’s becoming more and more clear that there’s a real legal issue here, as compared to a year ago,” said Ilya Somin, a law professor at George Mason University, “when people said this was just frivolous and had no chance of succeeding.”

On Wednesday, the Senate voted overwhelmingly, 81 to 17, to strip an unpopular tax-reporting provision of the law that opponents say overburdens small business. But, in a long day of emotional speechifying, that was about the only thing Democrats and Republicans agreed on.

Republican senators called for a repeal of the health-care overhaul, saying it will burden state and federal budgets with massive new costs. Democrats responded by saying that the GOP had no plans to replace the law.

“Republican Party . . . if you want to repeal, then let’s go replace,” Sen. Barbara A. Mikulski (D-Md.) said in a floor speech. “I want to hear their ideas for replacement. I challenge them right here, right now, today, on this amendment.”

In the end, the repeal was defeated, 51 to 47. All Democrats present voted to keep the law. All Republicans present voted to repeal it. Now, the two parties will settle in for a year of smaller battles, both believing that time is on their side.

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