Senate Positioned to Pass Healthcare Overhaul

December 24, 2009

With Senate Democrats poised to pass a sweeping overhaul of the nation’s healthcare system today, Republicans sought to frame the bill as a tarnished product of backroom deals, with some going so far as to declare it illegal.

With final approval of the bill all but certain, Republicans on Wednesday focused on diminishing it in the eyes of the public. In particular, GOP senators questioned a deal struck by Sen. Ben Nelson (D-Neb.), who agreed to support the legislation in part because a provision was added exempting his state from paying part of the cost of expanding the Medicaid program.

Democrats on Wednesday marshaled the 60 votes they needed to overcome one last procedural hurdle; the bill is expected to pass early this morning on a simple-majority vote.

"We stand on the doorstep of history," Senate Majority Leader Harry Reid (D-Nev.) said.

But at the behest of Sens. Lindsey Graham and Jim DeMint, both Republicans from South Carolina, that state’s attorney general has said he would investigate whether the "Nebraska compromise" was unconstitutional. The cost to the federal government of the deal struck with Nelson is estimated at $100 million over 10 years.

"The Nebraska compromise, which permanently exempts Nebraska from paying Medicaid costs that . . . all other 49 states must pay, may violate the United States Constitution — as well as other provisions of federal law," Texas Atty. Gen. Greg Abbott said. Nine other Republican attorneys general joined him Wednesday in protest.

David B. Rivkin, a conservative lawyer and constitutional expert in Washington, said he believed the claim of illegality was valid. Rivkin cited Article I of the Constitution, which says Congress can only use its power to tax and spend 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."

Rivkin noted, however, that even if a court were to find the deal unconstitutional, it would be unlikely to throw out the entire healthcare b ill as a result.

And Erwin Chemerinsky, dean of UC Irvine’s law school, said the Supreme Court in the modern era had 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."

After the Senate’s procedural vote Wednesday, the Democratic caucus held a news conference in celebration. "We’ll never cast a more important vote in our careers," Sen. Christopher J. Dodd (D-Conn.) said.

Meanwhile, some House Democrats fumed about the compromises in the Senate bill they were being asked to swallow. Many seemed resigned to losing the battle for liberals’ top priority — establishing a government-run program that would compete with private health insurers.

"They wanted a much stronger bill," said an aide to a senior House Democrat, who requested anonymity when discussing the legislative process. "They recognize it’s going to be pretty hard to do."

If they lose the public option, House Democrats may demand more generous premium subsidies and a quicker implementation of benefits. They also may try to make a proposed state-by-state insurance exchange where consumers could buy policies into a national program.

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