Our governor and state attorney general are acting awfully political these days. Chris Gregoire and Rob McKenna used to get along quite well, much to the dismay of their more partisan Democratic and Republican, respectively, cohorts.
Each has a keen understanding of the other’s job. McKenna succeeded Gregoire as attorney general, and many believe he wants to succeed her as governor, an ascension common among state AGs. Last week, Gregoire and McKenna bottled up the vinegar of politics with the oil of constitutional law. No matter how vigorously they shake that decanter, ultimately the two liquids will separate, and a winner and loser will emerge in this dispute.
McKenna has joined about 13 other state AGs in challenging the constitutionality of the “individual mandate” in the health care reform bill. They argue that requiring people to buy health insurance violates the U.S. Constitution’s commerce clause and the 10th Amendment, which deals with state sovereignty. To believe this is not politically motivated is to fantasize; all but one of the AGs in this challenge are Republicans. But McKenna smartly points out that all of the AGs who sued the Bush administration over greenhouse gas emissions were Democrats. So let’s not get caught up in the partisan angle, because to expect politicians not to act political is another fantasy.
Gregoire is angry over McKenna’s decision, and she’s surprised, insisting that he consulted neither her nor other state leaders (all Democrats). “He cannot be the Lone Ranger,” she said, to which a McKenna spokesman replied, according to the Seattle Times: “The bottom line is the attorney general is not a member of the governor’s Cabinet.” Very true.
How serious is this challenge? Well, it helps to remember that, even several days after the issue intensified, almost three-fourths of the states’ AGs were not questioning the constitutionality of the individual mandate.
Both sides present strong cases. Yes, many states require people to buy auto insurance, but that doesn’t mean the feds can do the same thing. In fact, much of this argument is based on states’ rights. The auto insurance requirement is for drivers; the health insurance mandate hits everyone.
Still, many legal experts believe the challenge by McKenna and others will not be upheld. They argue that the federal government already requires all workers to “buy” Medicare coverage. As Rutgers law professor Frank Askin inquired in a recent op-ed for the Star-Ledger of Newark, N.J.: “Should the younger members of the population have a right to opt out of paying Social Security and Medicare taxes from which they will not see any benefit for many years – if ever, should they die prematurely?” That would crumble the whole system of health care for seniors. There’s the similar argument that, if all people don’t participate in health care reform, that new system also will collapse. Why should you and I pay for the health care of some slacker who refuses to join us in paying for the overall system? Good question.
McKenna also doesn’t like the idea that the states will be required to expand Medicaid eligibility standards, to which Askin responded: “The Supreme Court has long upheld programs under the Constitution’s spending clause requiring states that accept federal program funds to comply with federal requirements under those programs. … States can simply opt out of Medicaid if they choose not to participate.” Of course, turning down the feds’ big bucks would be unwise.
More drama: What might the U.S. Supreme Court decide if the case gets that far? Askin wrote: “These lawsuits seem to be a Republican Hail Mary pass in the desperate hope that the conservative Supreme Court majority will rescue them as it did the George W. Bush campaign in 2000 in Bush vs. Gore.” That would be more judicial activism by those who decry it most.
Meanwhile, back in our state, the 2012 gubernatorial campaign might already have begun. McKenna is 2-for-2 in AG elections. Gregoire – in three AG races and two campaigns for governor – is 5-for-5. It would be one Goliath vs. another. Stay tuned!