Could Piecemeal Repeal Efforts Undermine Legal Challenges to Obamacare?

Posted: Feb 09, 2011 1:34 PM
Last week I appeared on PJTV's The Bottom Line to discuss conservatives' array of options for hampering, repealing, or vitiating Obamacare.  In the clip below, I endorse an "all of the above" strategy -- arguing that full and partial repeal efforts, denial of funding, and legal challenges should all be employed simultaneously to advance the ball:

My operating theory was that at worst, these parallel efforts would be redundant; at best, they'd chip away at the unpopular new leviathan, and ultimately bring it down.  One significant contributor to the successful Florida lawsuit against Obamacare, however, disagrees.  Ken Klukowksi, whose amicus brief was cited on page 64 of Judge Roger Vinson's decision tossing out the entire new law as unconstitutional, warns that piecemeal repeal gambits could unintentionally sabotage Obamacare opponents' legal cases moving forward.

"A flat out legislative repeal would be perfect," Klukowski says, "but we saw that effort go down to defeat last Wednesday [in the Senate].  That would have been the easiest way to go.  Now, however, if Congress is tinkering with pieces of the law, the Justice Department may be able to convince a court that they could retroactively read severability into the statute."

Klukowski -- an attorney at the Family Research Council -- says an especially perilous option is being considered by a bipartisan klatch of Senators: Repealing or significantly altering the individual mandate.

"If you repeal the individual mandate, all of the current court challenges would become moot and would probably be immediately dismissed," Klukowski explains.  "As long as the individual mandate persists, the court challenges can continue." 

Although negating the individual mandate would start the process of unraveling the rest of the law, Klukowski worries that much of the new law would stand, at least for the foreseeable future: "The mandate is less than one percent of Obamacare.  The law is full of hundreds of provisions that make healthcare more expensive and less accessible to millions of Americans.  We want this whole law gone, so Congress can start over from scratch."

Rep. Dave Camp (R-MI) recently proclaimed that if Republicans can't chop down the "rotten" tree of Obamacare, they'll "prune it branch by branch."  Klukowski says he appreciates that sentiment, but urges Congressional Republicans to leave certain branches intact -- at least until the current lawsuits are resolved. 

"Republicans are right to try to repeal Obamacare outright.  If they can't, at least give us the chance to get the whole thing struck down in court.  Don't ruin our best chance of getting rid of this behemoth," Klukowski says.  "Let's not win a battle, but lose the war."