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    Rob McKenna doth protest too much

    Op-ed: Defending his lawsuit to undo health care reform, Attorney General Rob McKenna demonstrates that he doesn’t understand the health care system.

    President Barack Obama signed health-care legislation in 2010  with 11-year-old Marcelas Owens of Seattle, left, looking on.

    President Barack Obama signed health-care legislation in 2010 with 11-year-old Marcelas Owens of Seattle, left, looking on. Pete Souza/White House photo

    In his March 8 guest column, "Health-care lawsuit: The real need is for a wiser approach to reform," Washington state Attorney General Rob McKenna decries “insidious and inaccurate accusations” by everyone from Congress to The Seattle Times that he is “trying to have the entire [health-care reform] law thrown out.” But McKenna alone joined our state in a Florida federal lawsuit seeking to do just that, forcing him now to disagree with the very judge who gave McKenna exactly what the suit sought in court. The attorney general’s real dilemma is trying to have it both ways on health-care reform as well, claiming to support reform but disingenuously attacking “only” the individual insurance mandate. Read on to see why McKenna should be more embarrassed than indignant.

    One year ago today (March 23) — just after President Barack Obama had signed the Patient Protection and Affordable Care Act (PPACA) into law — McKenna rushed to join 13 other attorneys general (all but one Republicans) in a Florida federal lawsuit to strike down the health care law.

    Five federal district courts across the country have now addressed the constitutional challenges to the PPACA: Three upheld the law, and two Republican appointees — Judge Henry Hudson in Virginia and Judge Roger Vinson in Florida — ruled in plaintiffs’ favor. Of the latter two, only Judge Vinson deemed the PPACA unconstitutional in its entirety, throwing out (among other things) the PPACA's prohibition against insurance denials based on pre-existing conditions and the authority for 26-year-olds to obtain coverage under their parents’ policies.

    Judge Vinson simply granted the relief McKenna requested in the March 23, 2010 complaint for a judgment declaring the PPACA unconstitutional and enjoining the act’s operation. McKenna elaborated in the summary judgment he signed onto on behalf of our state: “[B]ecause the mandate is concededly indispensable to the [PP]ACA, it cannot be severed: the Act must fall along with the mandate.”

    In a KUOW interview on April 2, 2010, however, McKenna described the action he had taken on behalf of Washington as follows:

    “In a nutshell, this case addresses two aspects of the federal healthcare law: the individual insurance mandate and some of the changes to Medicaid in terms of their impacts on the state. The case does not challenge any of the benefits or expanded programs in terms of what people will receive. All of those benefits — all of those new insurance regulations affecting, you know, preexisting conditions and 26-year-olds being able to stay on their parents’ policies — all of that takes effect. We’re not challenging any of it because I don’t think any of it’s unconstitutional (emphasis added)."

    Fortunately for Washington, the defendants persuaded Judge Vinson to stay his radical ruling pending appeal. That McKenna now seeks to distance himself from the Florida decision, however, only begs several tough questions left unanswered in his March 8 article:

    Did McKenna understand that the Florida plaintiffs intended to strike down the PPACA in its entirety before he made Washington a co-plaintiff? Since McKenna doesn’t agree that the PPACA should be struck down in its entirety, why did he sign a complaint and summary judgment motion asking for that very relief, and why hasn’t he limited Washington’s participation or withdrawn from the case altogether?

    Controlling costs and providing universal health care coverage to all Americans are the keys to real reform of our healthcare system. We can’t impose new restrictions on coverage denial — the PPACA provisions McKenna seems to like — without either significantly increasing the cost of insurance or getting currently uninsured people into the insurance pool. Since the former isn't tenable, the latter is necessary, and that's why the PPACA has a mandate.

    Republicans have not made any serious proposal that would simultaneously provide adequate near-universal coverage and control costs. That's because there's no way to do it without either a single-payer system funded by tax revenues instead of insurance premiums (the Canadian system) or a mandate to purchase insurance from a regulated private market (the Massachusetts system). Frankly, single-payer is better than the “regulate and mandate” model Congress enacted in the PPACA last year, but the mandate model is far better than all other remaining options. And what reform does McKenna favor? In his March 8 article, he points to an article by Newt Gingrich as an example of "numerous [Republican] concepts for bringing costs down while maintaining quality care,” none of which would do anything to meaningfully move us towards universal coverage.

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    Posted Wed, Mar 23, 12:14 p.m. Inappropriate

    Pete Holmes. The Seattle City Attorney that has tweaked sentencing guidelines so that illegal immigrants don't catch the attention of immigration authorities. Yo, Pete, by sending the message that the "law" is secondary to one's politics you are responsible, in part, for any cop shot in your fair city. And you lecture another on playing politics? Hypocrite.


    Posted Wed, Mar 23, 12:38 p.m. Inappropriate

    I'm not surprised that Mr. Holmes, in his hyperbolic essay, seems to be little concerned that the individual mandate is an unconstitutional abuse of federal power. Those on the left-wing of the spectrum, like those on the far right, typically care little for the Constitution and its limits on federal government power. But the Constitution exists, and its protections must be observed, no matter how un-stylish is it to observe them. McKenna may or may not understand the health care system. He understands the Constitution, and that's what counts.


    Posted Wed, Mar 23, 2:33 p.m. Inappropriate

    Hey Pete, did you just sign off on the agreement to let Hempfest take place in Seattle again? You know, in violation of the Smoking Ban in Seattle Parks within 25 feet of other park patrons.

    It really is a mystery why you still have a job, why are you so against people having their civil rights protected against government intrusion and over reach? Don't you have something better to do like raiding a massage parlor or something? Apparently that's about all you are good for, you are for legalizing every other crime you are tasked with prosecuting.


    Posted Wed, Mar 23, 2:40 p.m. Inappropriate

    I'll again point out that most constitutional scholars (and so far three federal district judges) see no contradiction between our Constitution and the health reform law's requirement that everyone obtain health insurance. This falls under the Constitutional provision that Congress has the power to regulate interstate commerce; the health insurance industry is surely interstate commerce. And I again suggest people read Simon Lazarus' comprehensive analysis of the McKenna litigation to understand the potentially dire impact on civil rights laws and other cherished federal regulations if the Supreme Court upholds his challenge to the health care mandate.

    Posted Wed, Mar 23, 2:44 p.m. Inappropriate

    And yet the case moves forward. That's why we litigate.


    Posted Wed, Mar 23, 6:17 p.m. Inappropriate

    Great piece, Mr. Holmes.

    If Mr. McKenna can tilt at windmills in this fashion with no damsel's hanky on his sleeve, just think what he would do as Gov'ner. Not a future devoutly to be wished!


    Posted Thu, Mar 24, 10:02 a.m. Inappropriate

    Mr. Meyer, the federal government has never required anyone to purchase a good or service from a private party before, and nowhere in the Constitution are they granted that authority. If this stands, it is in effect saying that citizens are engaging in interstate commerce just by virtue of the fact that they are not dead. There are still certainly judges and scholars who believe that the commerce clause lets the federal government do anything it wants to anyone it wants, but that definition flies in the face of other constitutional limits on government power, and the pendulum is jurisprudence is swinging away from the commerce clause granting dictatorial powers to the federal government. This lawsuit will be a test of whether the New Deal mindset has finally been eclipsed by a view of the constitution that by default limits, rather than grants, government power.


    Posted Thu, Mar 24, 11:24 a.m. Inappropriate

    Pete Holmes has no legal standing in any health insurance litigation. Rob McKenna properly represents the state of Washington due to medicaid and other issues. Pete should market some product under the Whole Foods model. They have their "365" brand and he could compete with his new gross misdemeanor "364" label and include health, safety, and nutrition information labels and warnings about the dangers of not prosecuting certain crimes pursuant to legal intent because they are solely and disproportionately committed by non-white, not citizen, members of the Seattle community. His time in public office has shown a personal agenda and bias and a general trend toward further dividing Seattleites.


    Posted Thu, Mar 24, 5:54 p.m. Inappropriate

    At least one of the commenters here should read the court decisions that ran against the PPACA, particularly Judge Vincent's decision. A couple of things are revealed.

    Judge Vincent does not believe WA state has standing in the case. There is an entire section on standing, and WA state was not one of the parties who was found to have standing. One party was the NFIB, though I would argue Judge Vincent's reasoning in accepting standing from the small businessperson NFIB represented contradicts his argument that the mandate is unconstitutional. The other party was a state whose legislature passed a law forbidding implementation of the PPACA portion affecting that state. That attorney general was the only one Judge Vincent believed had standing since that AG was defending that legislation.

    Taking the sum of reasoning of the two judges who've decided against the mandate, it comes down to the form of "persuasion" Congress chose to implement the mandate. The first judge, Judge Hudson, all but said if Congress had called it a tax then it would have been Constitutional. By backing off the "tax" language and calling it a "fee" instead, Judge Hudson called the mandate unconstitutional.

    Judge Vincent did not go quite so far as to help Congress fix his legal issue with the mandate, but there is enough in his decision to believe that a mandate is not inherently unconstitutional -- even ignoring for a moment the standing argument he uses for the NFIB businessperson.

    If Congress tomorrow passed a new tax/tax credit combination, there would be no mandate issue. The tax would be equal to the actual cost of mandated levels of insurance for the taxpayer. The credit would be equal to the cost the taxpayer actually paid for mandated insurance. The net impact on the taxes for an insured person would be zero. Those who are uninsured would have the fee. Those who have "Cadillac" plans would have only part of their insurance outlay offset by the deduction, with the rest being taxable income. The tax amount could be indexed to income, so uninsured low-income people have a lower penalty and insured low-income people gain a tax rebate to help them cover the insurance. This largely duplicates the "fee" system Congress decided upon.

    This approach would be 100% Constitutional -- assuming, of course, you're not one of those folks who happen to think the federal income tax is unconstitutional...

    More specific to Mr. Holmes' article, he's right Mr. McKenna should withdraw WA support for this litigation. Legally, Judge Vincent has said WA has no standing anyway so keeping WA involved in the appelate process is even more political grandstanding than it was when Mr. McKenna got us involved in the first place.

    David Miller


    Posted Thu, Mar 24, 6:45 p.m. Inappropriate

    "Mr. Meyer, the federal government has never required anyone to purchase a good or service from a private party before,"

    Actually, the "individual mandate" enjoys a long history in the US, going back all the way to the Militia Act of 1792:



    Posted Thu, Mar 24, 7:22 p.m. Inappropriate

    Chances are that the enthusiam for this illegal mandate will drop off considerably after Obama is defeated in 2012.


    Posted Thu, Mar 24, 7:33 p.m. Inappropriate

    "malamute" writes: "Actually, the 'individual mandate' enjoys a long history in the US, going back all the way to the Militia Act of 1792..."

    The article in the link says:

    "Within six months, every citizen enrolled and notified of his required militia service had to equip himself [with a firearm and accessories] as specified above."

    There is a big difference between conscription into military service and simply being a citizen going about his or her own business. Although I do understand that to many on the left, simply being a citizen makes one a pawn of government social engineers. That's when the Second Amendment comes in mighty handy. :-)


    Posted Fri, Mar 25, 8:47 a.m. Inappropriate

    I'm actually glad Mr. McKenna chose to support the Florida lawsuit. I used to think that as an independent minded person he would be a good governor. Now I see his true colors and will never vote for him again. And all while merely filing a brief on a lawsuit which will be decided at the Supreme Court whether or not WA had joined in. So he wasted a few million dollars doing it. I say it was money well spent.


    Posted Fri, Mar 25, 10:24 a.m. Inappropriate

    Insightful piece. Thank you for exposing how McKenna's position is clearly designed for maximum political effect, and indefensible from a legal perspective.

    You gotta love all the personal attacks on the author (above). When you can't counter an persuasive argument with one of your own, just go after the person's credibility and character.

    The level and tone of public discourse in this town is often shameful.


    Posted Fri, Mar 25, 1:10 p.m. Inappropriate

    In response to David Miller, a number of federal judges around the country have dismissed challenges to the health reform law, specifically the individual mandate provision, on the grounds that the plaintiffs lacked standing. States lack standing because they are not "harmed" by the mandate, which applies only to individuals. That's why the plaintiffs in the Florida suit and other suits have brought in individual plaintiffs, including people like Florida auto repair shop owner Mary Brown, who insists she wants to be free from health insurance but who almost certainly would need the rest of us to pay for her health care if she gets sick or injured. A George W. Bush-appointed judge in Mississippi named Starrett recently dismissed a health reform challenge on the basis that the individual plaintiffs hadn't shown they would be harmed by the law, and so did a California federal judge last year. Here's an article I wrote on this issue last year.

    Posted Sat, Mar 26, 5:13 a.m. Inappropriate

    The question remains, what will you do if the individual mandate is found unconstitutional? I have to agree with Harris Meyer on one thing though, I am really tired of paying for health care for illegal aliens in this country and nothing will change even if mandatory health care insurance is instituted.

    Will Washington State really support the identification and deportation of illegal aliens who do not conform with the madatory health care insurance purchase provision? Will they fine them and then prosecute them when they do not pay the fines just like everyone else? Or will they be automatically assumed eligible for totally subsidized care? Washington State doesn't do a good job of tracking eligibility for Federal and State Medicare and Medicaid programs now, what will change and how will it lower the cost to everyone?


    Posted Sun, Mar 27, 10:55 a.m. Inappropriate

    Cameron, the benefits of the health reform law explicitly do not apply to undocumented residents. They do not qualify for insurance subsidies to buy coverage through the state health insurance exchanges, and they won't even be allowed to use their own money to buy coverage through the exchanges. The law also exempts people below certain income levels from the individual mandate. Many if not most undocumented families will fall below that minimum income and thus will not be subject to the mandate's tax penalties come 2014. Undocumented people will continue to receive care through federally qualified community health centers and hospital emergency rooms. The cost to taxpayers and insurance policyholders of paying for illegals' health care is almost certainly less than the cost of paying for the health care of legal residents who don't have health insurance (the government estimates the total cost of paying for the uninsured is more than $40 billion a year). If you favor letting undocumented people die on the street rather than treating them, then just say so directly.

    Posted Sun, Mar 27, 11:49 a.m. Inappropriate

    I actually favor them self-deporting to their native lands.


    Posted Sun, Mar 27, 12:24 p.m. Inappropriate

    Cameron and BlueLight ought to give up eating apples and pretty much any other Washington-grown produce if they want to put their anti-undocumented worker jihad money where their mouths are.

    Posted Sun, Mar 27, 7:13 p.m. Inappropriate

    Picked them myself, Cherries too. It's not rocket science. Now if they want to be a part of an organized and sanctioned guest worker program, I don't have a problem with it. Why do so many people shy away from actual physical work?


    Posted Mon, Mar 28, 8:35 a.m. Inappropriate

    "Undocumented worker" sounds like someone who forgot his union card at home.


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