Former AG, senator defends McKenna joining health care lawsuit

Chris Rizo Mar. 27, 2010, 3:34pm

OLYMPIA, Wash. (Legal Newsline)-Washington Attorney General Rob McKenna may have ruffled some political feathers when he joined with other Republican AGs to challenge recently enacted health care legislation but he is within his powers to file suit, one of McKenna's predecessors said Friday.

McKenna and more than a dozen other state attorneys general -- all Republicans but one -- are challenging the constitutionality of the health care overhaul signed by President Barack Obama last week.

They object specifically to a provision that will require Americans to have health insurance or face penalties.

The attorneys general say when the Democratic-led Congress approved the individual mandate they overstepped their authority under the Commerce Clause.

McKenna has made his objections to the law known, much to the chagrin of Washington's Democratic governor, Chris Gregioire, and the Democratic-led state Legislature.

For her part, Gregioire, a former state attorney general, has criticized McKenna's decision. She has said the attorney general did not consult with her or legislative leaders, including Democrats House Speaker Frank Chopp or Senate Majority Leader Lisa Brown before making his decision to join in the lawsuit.

"I just don't agree with his legal analysis. But most importantly, I'm worried about the fact that he's decided that, on the behalf of the people of the state of Washington, he's going to challenge health care reform when millions of Washingtonians will benefit from that health care reform," Gregoire said in a television interview Tuesday evening.

Although the governor and the majority of state legislators in the Evergreen State might disagree with McKenna's joining suit, they would be wrong to say he is overstepping his constitutional authority by suing the federal government, said Slade Gorton, a Republican former Washington attorney general and U.S. senator.

Gorton, who served three terms as attorney general and in the U.S. Senate from 1981 to 1987 and from 1989 to 2001, outlined his case for McKenna in an op-ed published Friday on the opinion pages of the Seattle Times.

McKenna, he said, is well within his authority to challenge elements of the nearly $1 trillion health care overhaul.

"The decision to challenge specific provisions of the health-care bill is well within the authority of the attorney general and is one that he has the right to make alone," Gorton wrote, adding that McKenna is neither a member of the governor's cabinet nor does he serve at the pleasure of the state Legislature.

Gorton conceded that McKenna and his counterparts may have a difficult legal road ahead in challenging the Patient Protection and Affordable Care Act. Moments after the legislation was signed into law, the attorneys general filed their lawsuit in Florida.

"While this may be a difficult challenge for these 13 attorneys general, it presents a serious constitutional question, one that should be taken all the way to the U.S. Supreme Court," Gorton wrote. "It can be argued that it would be irresponsible not to challenge it, not to present these arguments to the Supreme Court of the United States."

The law marks the most significant expansion of medical care in the United States since Congress created Medicare in 1965 for the nation's elderly and disabled.

In closing his op-ed, Gorton took aim at McKenna's legislative critics, saying that the Washington State Constitution clearly allows lawmakers there to impose individual mandates on health care coverage.

"If passing an individual health-insurance mandate is truly their priority, perhaps they should consider doing what is within their authority, rather than making a political attack on the office and powers of the state attorney general," he said.

Parties to the lawsuit are the AGs from Florida, South Carolina, Nebraska, Texas, Utah, Louisiana, Alabama, Michigan, Pennsylvania, Colorado, Idaho, South Dakota and Washington.

Virginia's attorney general filed a separate lawsuit in his state Tuesday. Louisiana Attorney General Buddy Caldwell is the only Democrat who joined Republicans in their effort to block the new health care law.

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