Is there a legal case against the health-care bill?

Ezra Klein
WashPost

With the votes counted and the legislative battle finishing, conservatives are turning to a different branch of government to fight health-care reform: the courts. Their most promising tactic was to argue that "deem and pass" would be unconstitutional because the House and the Senate passed slightly different versions of the same bill. Previous challenges on those grounds had failed, but this is a different court and health-care reform is a different beast. But then the House rejected deem and pass and voted on the bill through the normal order. Undeterred, conservatives -- most prominently Ken Cuccinelli, Virginia's ambitious attorney general -- are planning to file suit against the individual mandate.

So is this -- or any of the other challenges being contemplated by conservatives -- likely to work? The basic answer is that the Supreme Court does not like to invalidate important laws passed by Congress. But for a more thorough look, see this article by Dave Weigel (who will soon be my colleague here at The Post!).

To put it very simply: This is good politics for conservatives but an unlikely legal strategy. And as Dave's article makes clear, the politicians pushing it know that as well as anyone. Two of the grounds for challenges that most excited conservatives ("deem and pass" and the Nelson deal) will not be relevant to the final bill, as "deem and pass" wasn't used and the Nelson deal is going to be erased in reconciliation. That means conservatives are largely left with the individual mandate -- an idea developed by the conservative Heritage Foundation and passed into law in Massachusetts by Republican presidential aspirant Mitt Romney -- and that's very unlikely to be repealed.

(More here.)