Health Bill On Verge In Senate

Passage Of Overhaul Measure Expected Today

Republicans Label It Unconstitutional

December 24, 2009|By James Oliphant | James Oliphant,Tribune Washington Bureau

WASHINGTON - -With Senate Democrats poised to pass a sweeping overhaul of the nation's health care system, Republicans sought Wednesday to frame the bill as a tarnished product of backroom deals and political maneuvering, with some going so far as to declare it illegal.

Much of the day had the feel of the final minutes of a football game in which the outcome already had been decided. As Republican senators raised new criticisms of the measure, Democrats were celebrating on the sidelines as though the final vote had been taken.

That vote, scheduled for early this morning, was expected to give final approval to the Senate legislation, which must be reconciled with a version passed by the House of Representatives.

On Wednesday, Democrats marshaled 60 votes to overcome a final procedural hurdle, and only a simple majority will be necessary in today's vote.

"We stand on the doorstep of history," Senate Majority Leader Harry Reid, a Nevada Democrat, said late Wednesday.

With its passage all but certain, Republicans focused on trying to diminish the bill in the eyes of the public.

In particular, GOP senators questioned a deal struck by Sen. Ben Nelson, a Nebraska Democrat, who agreed to support the bill in part because a provision was added exempting his state from paying part of the cost of expanding the Medicaid program.

At the behest of Sens. Lindsey Graham and Jim DeMint, Republicans from South Carolina, that state's attorney general, Henry McMaster, has said he would investigate whether the "Nebraska Compromise," as it has been dubbed, is unconstitutional. The Nebraska exemption would cost the federal government an estimated $100 million over 10 years.

Attorneys general from other states joined the fray.

"The Nebraska Compromise, which permanently exempts Nebraska from paying Medicaid costs that Texas and all other 49 states must pay, may violate the United States Constitution as well as other provisions of federal law," Texas Attorney General Greg Abbott said Wednesday, joining at least nine Republican counterparts in other states.

David B. Rivkin, a conservative lawyer and constitutional expert in Washington, said he believes that the Republican claim is valid. Rivkin cited Article I of the Constitution, which says that Congress can use its power to tax and spend only to benefit "the general welfare."

"This is the antithesis of the general welfare. It's about the welfare of one particular state," Rivkin said. "This is worse than an earmark. This is money to buy the vote of one senator. It's not the way to use public funds."

However, Rivkin noted that even if a court found the deal to be unconstitutional, it would be unlikely to throw out the entire health care bill as a result.

Erwin Chemerinsky, dean of the law school at the University of California-Irvine, said that in the modern era, the Supreme Court has deferred to Congress in determining what constitutes the general welfare.

"Congress adopts earmarks that benefit one state more than other states," he said. "No one suggests that is unconstitutional."

In a bid to slow the bill, Republican Sens. Kay Bailey Hutchison of Texas and John Ensign of Nevada each brought up the issue Wednesday on the Senate floor.

"Anything on health care or any other good provision that we want to do around here has to fit within the powers that are listed within the Constitution of the United States," Ensign said.

After the Senate's final procedural vote Wednesday, the Democratic Caucus held a news conference in celebration. "We'll never cast a more important vote in our careers," said Sen. Christopher J. Dodd of Connecticut.

While Senate Democrats celebrated, some House Democrats fumed about the compromises they were being asked to swallow. Many seemed resigned to losing the battle for liberals' top priority - the establishment of a so-called "public option," a government-run insurance program that would compete with private insurers.

"They wanted a much stronger bill," said an aide to a senior House Democrat. "They recognize it's going to be pretty hard to do."

House Democrats are beginning to shift focus from salvaging the public option to determining what they will demand in its place, such as more generous premium subsidies and a quicker implementation of benefits. They might also try to make a proposed new insurance exchange - a marketplace to help consumers buy insurance policies - a national program rather than a state-by-state institution.

Reid refused to answer questions about the coming House-Senate conference on the bill. He joked that after today's vote, he plans to go back to his hometown of Searchlight, Nev., "and frankly, I'm just going to sit back and watch my rabbits eat my cactus."

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