Will the Health Care Bill Hold Up?

Ronald Reagan once said, “Nothing is so permanent as a temporary government program.” Last night’s vote on health care reform was heralded by supporter as a “historic vote” which will dramatically change American health care. Assuming that the Senate passes the bill using reconciliation (i.e. the nuclear option), will it actually become a permanent program?

There is reason to think it might not. For starters, none of the major spending provisions – the subsidies for insurance or the additional Medicaid provisions – will take place until 2014, four years from now. Likewise, while some of the tax hikes occur immediately, the major ones, including the individual mandate, employer mandate, tax on high income earners, and tax on “cadillac” health care plans won’t begin for several years either. That is, there is a lot of time between the passage of the bill and an actual government program.

The first set of challenges the legislation will face are Constitutional. There are a number of issues in the health care legislation, in particular the individual mandate, that would seem to be unconstitutional. Indeed a number of state attorneys general are already preparing legal challenges to the bill. Previously, a number of AGs threatened to sue over mandates that would pass costs on to the states. Additionally, some attorneys generals are preparing a suit over the individual mandate.

The second challenge to the health care bill will come from state legislators. Thirty-eight states have some version of a Freedom of Choice in Health Care bill introduced, which would effectively work to undermine any federal (or state) mandate placed on individuals to buy insurance products. Indeed, Virginia has already signed into law a Health Care Freedom Act which reads,

No resident of this Commonwealth, … shall be required to obtain or maintain a policy of individual insurance coverage.

Idaho has also has passed a law to similar effect, and Arizona voters will have the opportunity to vote on a state constitutional amendment supporting health care freedom in November. Similar legislation has been introduced in Pennsylvania, including both a statute (HB 2053) and constitutional amendment (HB 2179). The Economist gives a quick synopsis of the legal precedent in which state protections of individual rights have trumped federal laws.

Finally, there is the opportunity for popular repeal. The House passed the bill only with the slimmest of margins, and with only bipartisan opposition – every Republican, along with 34 Democrats – voted against the packaged. The latest Rasmussen poll shows that 54% of voters oppose the latest health care bill, while only 41% support it.

Health care is undoubtedly going to be an election issue in November — and remember, there will be two election cycles (2010 and 2012) before the health care provisions go into law. Larry Sabato’s latest projections forecast Republican gains of 7 Senate seats and 27 House seats. And many organizations, including the Club for Growth, are pushing Repeal It! as a campaign issue.

The battle over health care reform is far from over.