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Inslee Attacks McKenna on Health Care Lawsuit

By Josh Feit September 30, 2011

Gubernatorial candidate US Rep. Jay Inslee (D-WA, 1) truly kicked off the 2012 campaign today by attacking his Republican opponent, Washington State Attorney General Rob McKenna, for signing on to the multistate lawsuit against President Obama's health care reform law.

McKenna joined the suit last year over the objections of Democratic Gov. Chris Gregoire and the Democratic-controlled state legislature.

Inslee doesn't actually challenge McKenna's big argument—McKenna claims the government mandate on individuals to buy health insurance oversteps federal authority. (The quasi-James Madison take on enumerated vs. unenumerated rights is hot with the Tea Party.)

Instead, Inslee points out that the lawsuit McKenna signed on to isn't just about the mandate. If the suit is successful, the entire law—which also includes things McKenna says he supports such as the popular ban against insurance companies refusing coverage due to pre-existing conditions—would get thrown out. And that is, in fact, what McKenna's co-plaintiffs—AGs from other states—are seeking.

(This issue has come up before and McKenna's office told PubliCola the the mandate provision is "severable" from the rest of the law.)

At a downtown press conference today in front of McKenna's Seattle offices, Inslee called on McKenna to acknowledge that the suit would kill the whole law and abandon the suit if he truly supports the other provisions—or file a separate lawsuit.[pullquote]What's odd about Inslee's hit is that he gives McKenna a free pass on the mandate.[/pullquote]

McKenna's office told the Seattle Times today that would be too expensive.

In a statement, Inslee said:
Since the day Rob McKenna signed on to that lawsuit, he hasn’t been straight with Washingtonians about his true intentions. He has continuously gone on record saying his goal was not to overturn the entire law - but his actions tell a different story entirely.

it’s time for him to make a decision. He needs to back out of the lawsuit immediately or give Washingtonians what they deserve – a credible, honest answer.

What's odd to me about Inslee's hit is that he gives McKenna a free pass on the mandate. Inslee voted for the bill and so, presumably, the mandate. He's a lawyer. I'd like to see him get in the ring with McKenna on that constitutional issue rather than the somewhat extra clever issue of McKenna's intent, which seems mostly like a gotcha.

Back in February, Inslee did tell us he thought the mandate was constitutional, although he didn't walk through his legal reasoning.

Now here's a problem with McKenna's reasoning: Attorneys general can and do drop suits when they disagree with the strategy or policy choices of lead plaintiffs. Recent examples include New Jersey and Wisconsin dropping out of the global warming suit against American Electric Power.
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