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Senate votes on Obama healthcare today, but many lawsuit challenges already taking shape

December 24, 2009 |  1:10 am

Congression al Democrats Harry Reid and Nancy Pelosi

(UPDATE: As predicted, the Senate did approve the measure. Poetic Ticket coverage available here.)

Well, this morning is the biggest Senate vote of all-time ever. Or at least the next one ever. On healthcare. no longer called healthcare reform.

But wait!

After all of this healthcare talk, all of this healthcare debate, all of the healthcare writing and maneuvering and advertising and arguing. After all of this, none of it may matter. Or at least significant parts of it.

Because even as President Obama packs his Speedo and cool shades to ensconce his entourage to Hawaii through New Year's, squadrons of opposing lawyers are lining up and writing up their legal briefs for promised challenges to the measure in court.

Yes, as Arianna Huiffington points out here, this Senate bill leaves absolutely no special interest behind. Not a one

But assuming the deals hold and the Senate passes this version this morning, if some kind of legislative healthcare measure gets rewritten and through a Senate-House conference and then re-passed in both houses by the whopping but increasingly nervous Democratic majorities with something like the language carried in its 2,000-plus pages now and subsequently signed by Obama, a series of legal challenges are certain.

Good news for any involved attorney with holiday bills.

And if happy Harry Reid and nattering Nancy Pelosi amend the bill's language in anticipation of the emerging legal concerns, then the carefully-calculated political deal -- or sale, depending on your viewpoint -- could crumble.

News this morning that legal opposition is congealing around two major areas of concern: the nationwide individual requirement to force every American to buy health insurance and the exemption of several states from some requirements. (Hello, Nebraska, which got a special Medicaid subsidy deal from Reid for Sen. Ben Nelson's vote worth an estimated $100 million in coming years.)

"This thing may be stillborn even if it passes," said one attorney involved in preparing a legal challenge.

When a similar requirement was under consideration back in the first Bill Clinton administration, analysts called it "an unprecedented form of federal action" similar to the military draft and doubtfully authorized by current laws.

Administration officials liken the new federal insurance mandate to laws requiring the purchase of auto liability insurance by licensed drivers. However, opponents point out, those are state laws, they are designed to protect others not the insured drivers and individuals can exempt themselves by not driving. Despite financial subsidies for some, there are no opt-out provisions in the proposed Democrat healthcare legislation.

Republican Sen. Lindsey Graham of South Carolina said his state would be filing suit, charging that the numerous sweetheart deals like Nebraska's violated the Constitution's equal protection clause. More details here.

-- Andrew Malcolm

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Photo: Associated Press (Reid and Pelosi in a pre-holiday mood).

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