PI Original Adam Doster Tuesday March 23rd, 2010, 12:46pm

Kirk's Health Care "Repeal" Gambit

How does U.S. Senate candidate Mark Kirk plan to repeal the health care bill? That's an important question the legislator has left unanswered.

Earlier today, President Obama signed the historic Senate health care bill into law. U.S. Senate candidate Mark Kirk is none too happy about it. Characterizing the bill (falsely) as too costly for premium holders and the government, the North Shore Republican told a group of supporters less than two weeks ago that if elected, he would "lead the effort" to repeal the new package of reforms.

How does Kirk plan to rescind the bill? That's an important question the legislator has left unanswered. And according to legal experts and lawmakers across the country, he and his allies don't have many options.

Conservative activists will undoubtedly try to challenge the constitutionality of the bill, a cause Kirk could champion. Already, about a dozen Republican state attorneys general are filing complaints that the federal government is abusing its power to regulate interstate commerce by passing an individual mandate for health insurance. But for decades, the courts have given Congress wide authority to regulate the national economy under the Commerce Clause. The most recent precedent is Gonzales v. Raich, which found that Congress can still ban the sale or possession of marijuana even though some states legalize the drug for medical purposes. In short, when decisions made in a local context (such as purchasing insurance) have nationalized effects (such as insurance premiums nationally), then it is "squarely within" the scope of Congress to apply federal regulations. "It's very hard to argue," summarizes The Atlantic's Marc Ambinder, "that an individual requirement to purchase health insurance is somehow less relevant to Congress's intent to lower the cost of premiums."

There's also the issue of time. The individual mandate won't go into effect until 2014. Even if the courts decide to hear a case challenging the mandate, they likely won't do so until it's fully implemented.

Overturning the law legislatively is just as unlikely. So long as President Obama is in the White House and has his veto pen ready, it’s literally impossible for Kirk and his party to win enough Senate seats this fall to pass legislation undercutting the law. There's a brief window in 2013 when Republicans could conceivably amass enough political power to toss it out, but that would take a Republican unseating the president as well as a the GOP winning a majority in the House and a 60-vote super-majority (barring filibuster reform) in the Senate. The odds of that, at least currently, aren't very strong. And they won't have any help building political support for repeal from their friends at the U.S. Chamber of Commerce, which says they won't back a repeal effort.

In Springfield, Republicans including gubernatorial nominee Bill Brady have already floated the idea of passing a law that would allow the state to "opt-out" of the federal reforms. Tabling the constitutionality of that effort, this scenario is just as unlikely as it is at the federal level. Gov. Pat Quinn has made crystal clear that he would not block any of the federal reforms. Even a Brady victory this fall would require the GOP retaking majorities in both chambers, where Democrats currently hold huge advantages. And Kirk, for what it's worth, would have no jurisdiction over any legislation in the state Capitol if he was elected to serve in the U.S. Senate.

Now that Kirk is a statewide candidate for federal office, the media should ask him to explain in detail to voters just how he plans to rescind a bill Illinoisans favor. They should also ask him why he favors tossing aside the entire bill -- including the wildly-popular provisions like closing the Medicare prescription drug donut hole, banning rescission, allowing kids to stay on their parent's insurance until they turn 26, and requiring insurance companies to cover pre-existing conditions -- as opposed to reforming it.

"We followed the most radical voices in the party and the movement," wrote conservative thinker David Frum yesterday, "and they led us to abject and irreversible defeat." The "moderate" Kirk is still following those voices.

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