The ultimate defense is the presidential veto pen. Even with a new majority in the House come January, Republicans concede that winning a repeal vote in the Democratic-controlled Senate is unlikely – and the two-thirds needed to override a presidential veto, well out of reach.
But Republicans say they'll seek every opportunity to repeal the new law and, failing that, to defund it or delay its implementation.
"If all of ObamaCare cannot be immediately repealed, then it is my intention to begin repealing it piece by piece, blocking funding for its implementation, and blocking the issuance of the regulations necessary to implement it," said Rep. Eric Cantor (R) of Virginia, in a 22-page letter to GOP colleagues in his campaign for majority leader after the Nov. 2 vote. "In short, it is my intention to use every tool at my disposal to achieve full repeal of ObamaCare."
No legislation more symbolizes what Republicans – and especially the conservative tea party movement – dubbed the overreach of an out-of-touch Democratic majority. Repeal would be a key vote for an insurgent freshman class eager to demonstrate that the 2010 election is producing change in Washington.
"My advice to [expected incoming] Speaker [John] Boehner is, as quickly as you can, take a simple and direct repeal of ObamaCare to the floor," said former GOP majority leader Richard Armey, who advised many tea party candidates. "He will find that the House will repeal it with no less than 20 Democratic votes. Don't worry about what the Senate does."
Senate Democrats, though holding a small majority, have the clout to block a vote on outright repeal. But Republicans say it's still important to get both Democrats and President Obama on the record on this issue for the 2012 election.
Votes on law's controversial features
In the likely event that repeal fails, Republicans' next step is to amplify the law's controversial features and take them to the floor for stand-alone votes. Exhibit A is a requirement that businesses file a 1099 form with the Internal Revenue Service every time they spend more than $600 with a new vendor. Many GOP candidates campaigned on nixing this provision, which is especially unpopular with small businesses. Mr. Obama has also cited this provision as an example of a "tweak" that could improve the law.
"It involves too much paperwork, too much filing. It's probably counterproductive," he said in a Nov. 3 press conference, explaining that "it was designed to make sure that revenue was raised to help pay for some of the other provisions."
There is plentiful opportunity for delaying or derailing implementation of the law – an effort that could dominate the work of the incoming Congress as decidedly as passing the legislation absorbed the outgoing Congress. Republican committee chairmen are already gearing up to boost the level of oversight on the Obama administration.
Rep. Darrell Issa (R) of California, incoming chairman of the House Oversight and Government Reform Committee, describes health-care reform as an "unparalleled encroachment of the federal government in the private sector and the lives of individual Americans." It will be met, he promises, by "vigorous congressional oversight of the massive federal bureaucracy," including use of his panel's subpoena power.
"It's not what the freshmen are going to do but what the new chairs are going to do," says Ross Baker, a political scientist at Rutgers University in New Brunswick, N.J. "Chairmen like Darrell Issa and others can haul [secretary of the Department of Health and Human Services] Kathleen Sebelius before the committee, hold lots of hearings, do oversight to the max. Call it death by a thousand cuts. Even without statutory changes, you can make it very difficult to get health-care reform implemented."
Oversight hearings to begin in House
One of the first oversight hearings will likely probe how the Obama administration intends to attain $500 billion in cuts to Medicare mandated by the health-care reform act. That will involve a trip to Capitol Hill by Donald Berwick, whom Obama appointed, without Senate confirmation and over GOP objections, to head the government's Medicare and Medicaid programs. Republicans will no doubt ask Dr. Berwick to explain how those cuts can be made and what their effect on seniors will be.
"The guy in charge with half a trillion [dollars] of cuts to Medicare has yet to speak to the American people," says Don Stewart, spokesman for Senate Republican leader Mitch McConnell. "The Democrats could have forced him to come up here so they can hear what he has in mind. The [GOP-controlled] House will have that opportunity. Democrats wouldn't allow it."
Republicans are also prospecting for ways to delay the new law by using annual spending bills to hold up funding to agencies charged with new health-care responsibilities or to bar agencies from using existing funding streams to advance provisions in the law. They are especially targeting mandates or charges on businesses that could discourage job creation.
In response, Democrats aim to amplify features of the new law that are popular with the public. These include:
• Helping seniors with prescription-drug costs. Seniors who have run up against limits for coverage of prescription-drug costs – the so-called "doughnut hole" in the 2003 Medicare prescription-drug law – started receiving monthly checks in June (not to exceed $250 this year) as a first step toward eliminating the gap altogether.
• Allowing young adults to stay on a parent's insurance plan until age 26. This provision began to take effect with new insurance plans on Sept. 23, 2010.
• Making 4 million small businesses eligible for tax credits worth up to 35 percent of the cost of providing health insurance to employees.
• Cutting premiums for the government's new Pre-Existing Condition Insurance Plan, mandated by the health-care reform law, in a bid to encourage more enrollment. The federal program is slated to continue until a national ban on insurance companies' discriminating on the basis of preexisting medical conditions takes effect in 2014.
"Frankly, I don't think working Americans will stand for a Republican crusade to take away the benefits and protections in the new health-reform law," said Sen. Tom Harkin (D) of Iowa, who chairs both the Health, Education, Labor and Pensions Committee (one of three panels that drafted the Senate version of the bill) and the Appropriations subcommittee that funds it. As such, he's in a key position to block House GOP efforts to defund the bill or void key provisions.
"Republicans are seriously misreading this election if they claim a mandate to drag us back to the days of out-of-control health care spending and insurance company abuses and discrimination," he added in a statement. "Ordinary Americans will not stand for it, and neither will I…. I will fight any misguided attempt to defund the law or repeal its consumer protections."
Did midterm voters repudiate reform?
Obama cautioned Republicans not to read the midterm elections as a repudiation of the health-care law. The electorate, in fact, gives mixed signals over health-care reform, including its effect on job creation, according to a poll released Nov. 8 by Rasmussen Reports. Just 26 percent of voters say repeal of the health-care law would help create jobs, 36 percent say repeal would not create new jobs, and 38 percent are undecided.
When asked what should be the No. 1 priority of the new Congress, Republicans cite repeal of health-care reform (36 percent) and cutting federal spending (29 percent), while Democrats (63 percent) overwhelmingly favored passing a new stimulus bill to create jobs, according to a Gallup poll of American adults released Nov. 3. But 12 percent of Democrats also cited repeal of health-care reform as their top priority for lawmakers.
"These partisan differences highlight the challenges that face the lame-duck Congress ... as well as the new Congress that will take office in January," says Frank Newport, editor in chief of the Gallup Poll, in a statement.