OLYMPIA – When a divided Supreme Court settled the question of whether federal health care reform is constitutional Thursday, it turned up the spotlight on the issue for Washington’s hotly contested governor’s race.
Now the question is, how long before that light dims?
Republican Attorney General Rob McKenna, one of the original plaintiffs in the failed multi-state challenge, said he was surprised at the ruling but insisted he was relieved, not disappointed.
Former U.S. Rep. Jay Inslee, Inslee’s likely Democratic opponent for governor this November, was happy: “I always believed this was constitutional. I had no qualms in voting for this bill.”
Gov. Chris Gregoire, who disagreed so strongly with McKenna’s decision to draw Washington into the court battle that she filed as a “friend of the court” on the other side, was both celebratory and caustic.
. . . It was a good day for Washington residents who won’t be denied insurance because of pre-existing conditions or will get health care as Medicaid expands or get to stay on the parents insurance until they are 26, she said. McKenna, she added, was “dead wrong” to insist the court could knock down one part of the law, mandate for people to buy health insurance, and leave the rest of it standing.
“You can’t have your cake and eat it too,” she said. The various opinions suggest that if the mandate had been thrown out, the entire law would have gone with it, she added.
The lawsuit over the Affordable Care Act hasn’t been far from the forefront of the race since McKenna signed on as an initial plaintiff in March 2010. He said Congress didn’t have the authority to require people to buy something like health insurance. When Gregoire and other state officials objected, saying the suit could kill provisions the state needs, he replied that wasn’t his intent, even though the lawsuit itself did ask the court to void the act.
On Thursday, McKenna seemed to be making lemonade from the biggest lemon for him in the decision, that it refused to strike down the individual mandate to buy insurance. A majority of the court agreed with him that Congress doesn’t have the power, under a section of the Constitution known as the Commerce Clause, to require people buy health insurance. But it does have the authority to penalize people who don’t buy insurance under its taxing powers, five justices agreed. So the mandate he sought to overtun stands, and with it, almost all of the Affordable Care Act.
“We achieved our goal of finding out if Congress has that power,” McKenna said.
He acknowledged he needs more time to study Chief Justice John Roberts’ reasoning on how the tax isn’t subject to other restrictions but cited some tough wording from that decision on the dangers of Congress “dragooning” state resources to expand Medicaid.
“We have a clear victory for federalism” the division of powers among the federal and state governments and the people, he said. “So we’re happy about that.”
Some of McKenna’s fellow Republicans, including Rep. Cathy McMorris Rodgers of Washington and Sen. Mike Crapo of Idaho, called for Congress to repeal the law almost as soon as the Supreme Court announced its decision.
McKenna said they should stop talking about a wholesale repeal of the Affordable Care Act, and instead focus on parts that aren’t working. “To completely blow it up means we’re essentially doing the same thing, in reverse,” that the Democrats did in ramming a massive bill through Congress.
Besides, he said, Democrats who control the Senate will never bring it to a vote and President Obama would never sign such a bill.
Inslee insisted McKenna had been “wrong from the beginning” in joining the lawsuit. Although legal scholars may debate the “intricacies” of the ruling for years, Inslee said he believed the law was “well within the constitution and about 200 years of jurisprudence.”
He deflected a question of whether the decision will remain a major campaign issue by saying health care will remain important for the state and nation for many years. In a possible appeal to women voters, he made repeated references during a brief press conference to coverage for breast cancer survivors and reproductive rights; he also said at least twice that the majority decision was reached by justices appointed by both parties.
Gregoire said she was happy about two things: One that the work the state has done that is required by the law – like setting up a Health Insurance Exchange to help small businesses and individuals shop for a medical plan much the way they shop for cheaper plane tickets on a website – won’t now be scrapped. “The Affordable Care Act is our way forward,” she said.
The other is that the problems Washington had nearly 20 years ago, when it tried to reform health care on its own without a mandate, were recognized by Justice Ruth Bader Ginsburg in a separate opinion. Washington and the other six states that went that route saw higher premiums, fewer people covered and fewer insurance companies willing to offer plans. “The results were disastrous,” Ginsburg said, citing Gregoire’s amicus brief that mentioned a “death spiral” in the state’s insurance industry at that time.
Gregoire said the distinction the court made between upholding the law on the taxing authority of Congress rather than the Commerce Clause is a nuance the average American “probably doesn’t pay much attention to.”
She insisted that people who have health care essentially are already taxed by paying for the uninsured, and the Affordable Care Act decreases the number of uninsured the a mandate that says “everybody has to be responsible.”