Washington Attorney General Rob McKenna caught a lot of people off guard Monday when he said he’ll take part in a multistate lawsuit challenging the federal health care reform legislation signed Tuesday by President Barack Obama.
It was less surprising that a host of Democrats, led by Gov. Chris Gregoire, assailed Republican McKenna for the move. Many accused him, plausibly, of reaching out to tea party conservatives in case he runs for governor in 2012. Some likened him to politicians of the Deep South where anti-federal hostility has antebellum roots.
In red-state Idaho, Attorney General Lawrence Wasden’s similar stand raised no eyebrows.
But the two Northwest Republicans are not as isolated as their critics would suggest. In a dozen other states – including Pennsylvania and Michigan – elected officials have taken steps to contest the landmark legislation that imposes mandates affecting the way individual state governments carry out their functions.
Given the scope of the legislation, the intensity of the debate and the breadth of its impact on American life, a court test was inevitable. So although the law will be phased in over the next several years, there’s merit in resolving the constitutional questions as quickly as possible.
We use the term “resolve” with caution. The U.S. Supreme Court’s record on questions of state sovereignty has been anything but consistent. A labor case in 1976 held a federal law invalid because it intruded in a traditional state activity. A 1985 case reversed the 1976 ruling. Cases in 1992 and 1997 restored the idea that the feds can’t “commandeer” states and state officials to carry out federal programs.
Still, a case that deals with the specific provisions of a specific law is a legitimate exercise of McKenna’s office. Moreover, this focused approach demonstrates a seriousness that’s missing in the tedious 10th Amendment movement that has produced a campaign for immunity from any and all federal authority.
For the record, we believe the legislation suffers from an excess of expensive mandates and a shortage of effective cost containment measures. But whichever way the court ultimately rules, it’s better to have a decision about constitutionality now than after the plan is up and running.