McKenna Declares Victory, But Ignores the Fine Print

On Monday, a federal district court judge in Florida struck down President Obama’s

health care reform law because the individual insurance mandate exceeded Congresses

Commerce Clause power. The lawsuit had been filed by among others Attorney General

Rob McKenna on behalf of the State of Washington.

The result was not unexpected as the lawsuit was specifically filed in a conservative Florida district to get the case before a particular conservative republican appointed district court judge. The decision continues the trend of Democratic appointees ruling the law constitutional (two so far) and Republican appointees ruling the law unconstitutional (two as well). See my prior PubliCola article here.

Rob McKenna was quick to claim victory against this congressional “power grab.” But was it a real victory for McKenna? The details of the decision show otherwise. For example, the court ruled that Washington doesn’t even have standing on McKenna’s central claim against insurance mandates.

The lawsuit contained two legal challenges. One challenged the individual mandate requirement. The other, in McKenna’s own words, challenged the “massive expansion of the Medicaid program which will unconstitutionally require states to spend billions more at a time when state budgets are already in crisis.”

On the Medicaid challenge, in which the States including Washington had a direct interest, the court granted summary judgment to the federal government. The Court ruled that a State’s participation in the Medicaid program was voluntary. Therefore, the federal government could condition participation and the receipt of federal benefits even in a financially burdensome way. The State could opt out if the cost was too high. All the courts that have considered this challenge have ruled in the federal government’s favor. So, McKenna lost on one of his two issues.

With respect to his supposed win on  the individual mandate challenge, the Court first addressed whether the State plaintiffs had standing to make the challenge. In other words, the Court had to decide whether a state acting through its attorney general had a sufficient interest in an individual right of its citizens to bring a lawsuit on its citizen’s behalf. The Court found that two of the state plaintiffs had standing (Idaho and Utah) but only because the Idaho and Utah legislatures had enacted specific laws signed by the governors of those states seeking to protect their citizens from forced compliance with the individual mandate. Those laws, according to the Court, triggered the duty of those state’s attorney generals to defend the state laws by bringing the federal lawsuit challenging the individual mandate.

There is no such legislation in Washington that would trigger a duty on behalf

of McKenna. Indeed, that is the crux of a lawsuit now pending in the Washington Supreme Court by the City of Seattle challenging McKenna’s authority to join the

Florida lawsuit in the first place. The Florida Court did not end up addressing whether

or not Washington and its Attorney General in fact had standing because it could reach

the merits based on the standing of Idaho and Utah alone. (The court also found that

two individual plaintiffs and an organization to which they belonged had standing to

challenge the individual mandate.) McKenna’s claim of a right unilaterally to bring a

lawsuit on behalf of the constitutional rights of Washington’s citizen’s was seriously

undermined.

Finally, when he filed the lawsuit, McKenna took pains to state that he was not

challenging the entire law, only the provisions requiring the individual mandate and

adding to the State’s Medicaid burden. The rest of the law, and its benefits, would be

maintained. McKenna was a loser on this as well. The Florida judge struck down the

entire law. McKenna has expressed surprised that the court struck down the entire law.

But that is exactly the result that all the plaintiffs, including McKenna, argued for in the

Florida lawsuit.

McKenna rightfully can claim victory in that the Court agreed with the arguments he

and the other plaintiffs advanced about the individual insurance mandate. (Of course,

at the end of the day, the U.S. Supreme Court will have the final say.) The lawyer in

McKenna knows, however, that at best the victory was far from complete. The politician

in McKenna refuses to let that be acknowledged.