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.

Crosscut archive image.

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

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

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.

Politicians like McKenna who don’t support universal health insurance coverage aren’t saving us money; they’re just perpetuating a system that spreads our ever-increasing health care costs among Medicare, Medicaid, federal, state, and local government employee plans, the VA, other government programs like SCHIP and Basic Health, private employee plans, individually purchased coverage, and charity care provided by public hospitals like Harborview Medical Center. This is an extraordinarily inefficient system — all levels of government already spend an enormous amount of money on health care, our economy as a whole spends more money per capita on health care than any other country, and our overall health outcomes lag behind those in other developed countries that have universal coverage with less overall spending than we do. This isn’t the sort of leadership we need in this Washington or the other Washington.

McKenna dragged Washington into the Florida lawsuit over Gov. Chris Gregoire’s and State Insurance Commissioner Mike Kreidler’s express objections and without consulting any other state officer. This unprecedented action was not authorized under Washington’s constitution or statutes. Accordingly, the City of Seattle petitioned the Washington Supreme Court to order McKenna to withdraw Washington from the Florida lawsuit, a petition that remains pending. McKenna correctly notes that the U.S. Supreme Court is likely to ultimately decide the PPACA’s fate, but we are doing our best to make sure that Washington isn’t numbered among the Republican plaintiffs standing in the way of genuine health-care reform.

As radical as Judge Vinson’s order was, it was far more intellectually and morally honest than Rob McKenna’s disingenuous attempt to appear moderate while actually looking to Newt Gingrich for ideas on health-care reform.


Please support independent local news for all.

We rely on donations from readers like you to sustain Crosscut's in-depth reporting on issues critical to the PNW.


About the Authors & Contributors