The other day, Washington's Attorney General, Rob McKenna, paid a visit to Crosscut's regular writers-and-editors brown-bag lunch, impressing many with his calm, centrist manner on many knotty legal questions. To several of us, it was as if we were getting our first glimpse of our next governor. He only gave a few glimpses of his more conservative past, favoring charter schools for one thing.
Still, I wondered how long he could both keep his office, where his main client is Gov. Chris Gregoire and her administration, while starting down the path to the governor's mansion in 2012.
President Obama seems to have forced his hand. Yesterday, McKenna threw in with several other Republican attorneys-general from Florida, Texas, Nebraska, Utah, North Dakota, South Dakota, Pennsylvania, Oklahoma, and Alabama in preparing to sue the Obama administration for passing a health-insurance mandate for all of the states. That steps over a constitutional line, McKenna argues, saying:
I believe this new federal health care measure unconstitutionally imposes new requirements on our state and on its citizens. This unprecedented federal mandate, requiring all Washingtonians to purchase health insurance, violates the Commerce Clause and the 10th amendment of the US Constitution.
I'm concerned that the measure unconstitutionally requires all Washingtonians to purchase health insurance and places an extraordinary burden on our state budget by requiring Washington to expand its Medicaid eligibility standards in violation of our state's rights guaranteed under the 10th amendment.
Lest anyone miss the obvious political crossing of a Rubicon here, Gov. Gregoire immediately fired back (here's the YouTube version).. "He doesn't represent me," she said, in language rather close to firing one's attorney. She added that she might well file a legal brief opposing McKenna, putting him in the spot where he would be obliged to represent the governor and her case as well as his own, contrary lawsuit — or quit.
McKenna's move can't help him with the independents he has been courting with his moderate politics. It also appears to be quite a longshot legally. a href="http://www.nytimes.com/2010/03/23/health/policy/23legal.html?ref=politi…" target="_blank">A quick survey of constitutional experts indicates that Congress has framed the new mandate as a tax, which the federal government has long had the ability to levy.
But given the nature of blogspheric politics today, I'm not sure McKenna has much of a choice on the issue, risky as his stance is. Had he not joined the other Republican A-G's, he would have been pilloried by conservative bloggers, and it's possible that a more conservative GOP challenger would be able to steal a march on McKenna and greatly complicate his primary campaign in 2012. Also, McKenna's voters are not likely to be fans of Obamacare and the expansion of federal authority it represents, so he might as well show his loyalty to his base at this critical testing point. A new Rasmussen poll has the voters favoring the state lawsuits by 49-37 percent.
In short, he was trapped by the polarized politics of the day and the GOP's need, now that Obamacare is about to be enacted and the "Repealicans" put on the defensive, to keep up the warfare against the Democrats' big achievement. But taking such a stand badly compromises McKenna's ability to continue to be an effective and admired attorney general, appealing to the center.
Other Democrats such as Congressman Jay Inslee, Snohomish executive Aaron Reardon, Senate Majority Leader Lisa Brown, and King County executive Dow Constantine suddenly seem more likely gubernatorial successors to Gregoire. And the livid Gregoire, herself an attorney for whom health care is a core issue, might find herself recharged to fight for a third term. As many observers have been saying, the political fallout from Obamacare will start right now and go on for years.