Washington state Attorney General Rob McKenna's crusade against healthcare reform has a motto, it seems. “Congress has never passed a law requiring its citizens to buy a commercial product,” says the Republican in a phone conversation.
He is busy in what he hopes will become a national movement of state attorneys general, numbering 14 so far, striking back against what they consider the most egregious provision of the healthcare overhaul bill signed this morning by President Obama.
They hope to strike down the requirement mandating purchase of health insurance by all Americans.
In Olympia, Wash., Democrats are condemning him for his decision. Washington Gov. Chris Gregoire (D) says Mr. McKenna did not consult her before he decided to join the others in challenging the congressional bill. She said in a statement that she “totally disagrees” with his opinion and she’ll fight his lawsuit.
The clash raises the question: What happens when a governor and an attorney general disagree? And will other states run into the same problem? In the wake of the healthcare bill’s passage, a heated legal debate has ensued.
“This happens fairly frequently across the country, especially when the governor and attorney general are from opposite parties,” says Larry Sabato, director of the Center for Politics at the University of Virginia. “The key here is that both are independently elected so neither has control over what the other does."
“McKenna is free to file the suit and Gregoire is free to criticize him for it,” says Mr. Sabato. “But McKenna has the power to do what he has done.”
McKenna certainly agrees. He says the 10th Amendment protects states from being forced to follow federal laws that are not covered by the US Constitution. This measure "unconstitutionally imposes new requirements on our state and on its citizens,” says McKenna. "It's an unprecedented federal mandate, requiring all Washingtonians to purchase health insurance, and violates the Commerce Clause and the 10th amendment of the US Constitution.”
“It might be politically incorrect but not legally incorrect,” says Mr. Langran. “The Supreme Court has held for over a century that the federal government does have the police power to look out for the welfare of their citizens (and it has held since Reconstruction that we are federal citizens and state citizens).”
Langran says the police power must be related to some federal power in the Constitution, and here it might be the spending power. The Court has often held that when Congress gives money out, it can impose conditions (unless some basic First Amendment right is being contravened). So, Langran says, the Tenth Amendment argument wouldn’t hold up.
“That train left the station 70 years ago,” says Joerg Knipprath a professor at Southwestern Law School in Los Angeles. He calls the movement among the attorneys general "political theater," and says that during the era of the New Deal, the courts greatly expanded the ability of Congress to regulate commerce.
These cases address the issue of the federal government’s right to regulate large, national industries such as health insurance companies, says Mr. Knipprath. Congress has never passed a law that imposes requirements “simply for living,” he says, but the only way to regulate something like healthcare reform’s ability to deny coverage for pre-existing conditions was to require everyone to buy into the system. “Otherwise,” he explains, “you would have unacceptable behaviors such as people waiting until they got sick to buy insurance, which would not work.”
Given legal precedents, most experts seem to agree it is unlikely that these state challenges to the federal health care law will prevail. But the clash of attorneys general versus their state governors is another matter.
“State attorneys general are constitutionally independent state officers and have autonomy in their decisions to take action on behalf of their states,” says Steven Schier, a political scientist at Carleton College in Northfield, Minn. He says the same thing could happen elsewhere, such as in California, but that given Jerry Brown’s support for the healthcare legislation, “that seems unlikely.”