This Washington

Re: LawNerd v. McKenna

By Josh Feit February 7, 2011



McKenna on KCTS

Attorney General Rob McKenna's spokesman Dan Sytman talked with PubliCola today about what appears to be a big gaffe in McKenna's effort to undo the insurance mandate aspect of President Obama's health care law, which McKenna thinks is unconstitutional.

As two Cola LawNerd columns have pointed out, McKenna says he supports several parts of Obama's health care law—including not denying coverage for pre-existing conditions; caps on premiums; keeping young adults on their parents’ health care; and mandating that insurers can’t drop sick policy holders. However, the ruling last week from the federal judge in Florida threw out the entire health care law. McKenna was one of 14 state attorneys general who filed the case asking the judge to do just that.

How does McKenna's office square this?

"The big issue here is the insurance mandate," Sytman says.  "We believe the individual mandate is severable [from the law] and this judge [in Florida] does not."  A Virginia judge who ruled against the health care law did decouple the mandate from the popular items—meaning, there's an end game here that could make health insurance companies honor the congressional regulations on coverage guidelines, but would simultaneously toss the requirement that people get insurance.

Sytman believes the case will ultimately be decided by the U.S. Supreme Court and says McKenna's hope is that the high court finds that the insurance mandate is "outside the powers granted to Congress" while upholding the the popular regulations.

So why did McKenna join a lawsuit that contended the popular regulations were unconstitutional?

"It's a multi-state lawsuit," Sytman says. "There is going to be disagreement on some points."

It looks like McKenna went for the nuclear approach, but Sytman says that if the U.S. Supreme Court decides against the mandate, "there's nothing stopping Congress from keeping the things people like about the law in place."

But what if the court agrees with Florida?

"Members of Congress should immediately revisit the law and pass a version that does not violate the Constitution," Sytman says.

And here's McKenna on KCTS discussing the "severability" question, where he says "none of those provisions [the popular things noted above] is being challenged in this suit" ... an odd statement given that the Florida judge threw them out. McKenna also says those provisions "are popular and ought to be maintained."
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