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Sunday, March 25, 2012 - Page updated at 08:30 p.m.
If 'Obamacare' falls, McKenna could pay political price
By Jim Brunner
Seattle Times political reporter
Ever since he joined the multistate lawsuit challenging President Obama's health-care overhaul, state Attorney General Rob McKenna has taken pains to say his goal is not to kill the entire law.
McKenna, the Republican gubernatorial hopeful, has voiced support for the more popular provisions — such as allowing children to stay on their parents' health insurance until age 26, and the ban on insurers denying coverage to people with pre-existing medical conditions.
The lawsuit will not strike down those patient protections, McKenna has repeatedly said. Its purpose was to challenge the constitutionality of just a couple provisions, he says, chiefly the requirement that most Americans buy private health insurance by 2014 or face a fine.
But such statements are at odds with the legal arguments that have been made in McKenna's name, a conflict that Democrats have seized on in trying to poke holes in his image as a moderate Republican.
For more than a year, plaintiffs in the health-care case have explicitly argued in federal-court briefs that the whole health-care law — including its popular patient protections — must fall if the so-called individual mandate is ruled unconstitutional.
This week, as the U.S. Supreme Court hears oral arguments in the case, the lawyers representing McKenna and other opponents of the law will again argue that the entirety of the Patient Protection and Affordable Care Act, frequently called "Obamacare," should be scrapped along with the mandate.
"The Court should not rescue provisions of an Act that never would have become law without the linchpins that held the Act together. Accordingly the Court should hold the Act invalid in its entirety," the opponents wrote in a March 13 brief to the Supreme Court.
26 states are suing
McKenna said he has been overruled on such arguments by his co-plaintiffs representing the 25 others states in the lawsuit. The case is being directed by the Florida Attorney General's Office, and Washington state is not paying any of the legal costs.
McKenna points out that the last court to hear the case — the 11th U.S. Circuit Court of Appeals — agreed with him that the individual mandate can be struck down without overturning the rest of the law.
"The Supreme Court is not going to strike down this law in its entirety," McKenna said in an interview last week.
Many legal and health-care experts agree. But they also point out that some of the law's key provisions, such as coverage of pre-existing conditions, will not work without the mandate.
In any case, it was entirely predictable that most of the Republican attorneys general who filed the case would target more than just the mandate, said Brad Joondeph, a law professor at Santa Clara University.
"If you are joining Mississippi, Alabama and South Carolina in this lawsuit, it's unrealistic to think they are going to take your more moderate position on the question of severability," said Joondeph, a constitutional-law expert who has closely tracked the health-care case.
The tension between McKenna's views that much of the law can remain intact versus the knock-it-all-down approach by his co-plaintiffs illustrates the political gamble he took in joining the case.
McKenna, attorney general since 2005, is running this year to become the first Republican governor elected in Washington in three decades. The former King County councilman has cultivated a reputation as a moderate whose views will be acceptable to a majority in the Democratic-leaning state.
His participation in the health-care case has drawn praise and condemnation.
When the lawsuit was filed in March 2010, on the day it was signed into law, McKenna was given a hero's welcome by thousands who attended a quickly organized rally at the Capitol in Olympia. The move was widely seen as quashing any doubts about McKenna from conservatives.
"There is no question in my mind it solidified the right," said state Republican Party Chairman Kirby Wilbur.
But Democrats pounced on the filing in an effort to erode McKenna's image as a moderate. In the past two years they've publicized stories of cancer survivors, small-business owners and others who have benefited from the law's protections — saying McKenna doesn't care about their concerns.
Nationally, the individual mandate has proved unpopular. A poll by the Kaiser Family Foundation this month found 51 percent of respondents believed the Supreme Court should rule the mandate unconstitutional, versus 28 percent who said it should be upheld. The rest didn't know.
The poll also found widespread confusion about the details of the law. But it found support for many specific provisions, including Medicaid expansion and tax credits to help small businesses pay for health insurance.
From the day he joined the lawsuit, McKenna has emphasized it would focus only on narrow constitutional questions, especially around the individual mandate.
"You can't overturn a 2,400-page law with a trillion in spending and 80 new federal agencies with one lawsuit, nor do we attempt to," McKenna said in a March 24, 2010, interview on TVW still featured on his official website.
On July 6 of that year he sent out a news release declaring, "Despite what many have reported, this suit will not overturn or repeal the new health care reform legislation."
But within months, the lawsuit was seeking to do precisely that.
In November 2010, the plaintiffs argued in a legal filing that if either the individual mandate or Medicaid provisions were ruled unconstitutional, the court should nix the whole law.
In January 2011, Florida federal Judge Roger Vinson agreed, ruling that Congress had overstepped its authority. "Because the individual mandate is unconstitutional and not severable, the entire Act must be declared void," Vinson wrote.
Yet McKenna continued to insist the lawsuit would not imperil the entire health-care law.
A month after Vinson's ruling, McKenna appeared on KCTS 9 and grumbled that Democrats were accusing him of trying to scuttle provisions such as keeping 26-year-olds on their parents' health plans, or the ban on denial of coverage for pre-existing conditions.
"None of those provisions is being challenged in this suit," he said.
In August, the 11th Circuit decision upheld Vinson's ruling that the mandate was unconstitutional, but disagreed that the entire law had to fall with it. McKenna hailed that decision as evidence his legal view would prevail.
But Democrats have continued to attack McKenna as the plaintiffs have filed briefs to the U.S. Supreme Court arguing for the whole law to be struck down.
In September, Democratic gubernatorial candidate Jay Inslee called a Seattle news conference to bash McKenna over one such filing. He called on McKenna "to be straight with the citizens of Washington state" and withdraw from the case — or file a separate lawsuit — if he disagreed with his co-plaintiffs.
McKenna has brushed off such demands, saying the underlying constitutional question about the mandate is too important for him to back off.
For the first time, he said, the federal government wants to require people to buy a specified private product. If that is OK, there is nothing preventing a subsequent law forcing people to buy cars made by General Motors, he said.
McKenna said federal and state governments can find other ways to reduce the cost of health insurance, such as by limiting medical-malpractice lawsuits and reducing regulations on insurance plans.
It's not clear what would happen if the Supreme Court invalidates the mandate without striking down the rest of the law.
Larry Levitt, senior vice president at the Kaiser Family Foundation, said some provisions can operate without the mandate, including those that allow children to stay on their parents' health plans longer and that require insurers to cover preventive care without co-pays or deductibles.
But, Levitt said, major portions of the law are too inextricably linked to the mandate to function without it. The government could not realistically force insurers to cover people with pre-existing conditions, for example, without the mandate to ensure there are enough healthy people paying premiums.
Congress could try to coax more people into the insurance market through tax subsidies, deregulation or other means, Levitt said. But "the consensus is fewer people covered and premiums going higher," he said.
McKenna said that's no reason to keep the mandate.
"You are not allowed to include unconstitutional provisions in any law simply because it makes other parts of the law easier to implement," he said.
Jim Brunner: 206-515-5628 or firstname.lastname@example.org.
On Twitter @Jim_Brunner.
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