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Originally published September 28, 2011 at 10:01 PM | Page modified September 29, 2011 at 6:33 AM

McKenna overruled on scope of health-care challenge

The constitutional clash over the national health-care law moved closer to the Supreme Court on Wednesday, when both the White House and Republican state attorneys general asked the justices to hand down a verdict early next year.

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The constitutional clash over President Obama's national health-care law moved closer to the Supreme Court on Wednesday, when both the administration and Republican state attorneys general, including Washington's Rob McKenna, separately asked the justices to hand down a verdict early next year.

Both sides in the legal battle cut short their time for filing their appeal petitions, and both said they are eager for a final ruling.

"This health-care law is an affront on Americans' individual liberty," said Florida Attorney General Pam Bondi, who asked the high court to strike down the entire law, not just its mandate that all Americans have health insurance. "This case is paramount in our history and will define the boundaries of Congress' power as set forth in our Constitution."

The Atlanta-based 11th U.S. Circuit Court of Appeals, ruling in August on the lawsuit filed by Florida and Republican officials in 25 other states, struck down the mandate as unconstitutional but upheld the rest of the law.

Bondi's request to strike down the entire law was at odds with McKenna's statements when he made Washington state a plaintiff in the case last year.

McKenna, a Republican candidate for governor in 2012, said his goal in joining the lawsuit was not to strike down the entire law, just the provisions he argues are unconstitutional — chiefly the mandate. But the plaintiffs' legal briefs since then repeatedly have sought to scrap the entire law.

McKenna's office said he has been overruled on that point by his co-plaintiffs.

"With all multistate lawsuits, when you have lots and lots of states that have an interest, an individual state can't necessarily dictate to the group every aspect of the case," said Dan Sytman, a McKenna spokesman.

Ultimately, McKenna believes the Supreme Court will rule narrowly on the issue of the mandate without striking down the whole law, Sytman said.

Democrats, however, argue the public shouldn't accept McKenna's explanation.

In a statement, Dwight Pelz, the state Democratic Party chairman, said McKenna "intentionally misleads the public when he claims that his politically motivated lawsuit would not overturn the whole of the Affordable Care Act, and will be held responsible should his actions cut off thousands of Washingtonians from access to affordable, quality care."

Shortly after Florida's announcement, U.S. Solicitor Gen. Donald Verrilli Jr. asked the high court to review the 11th Circuit decision and to uphold the law in full. He said the justices should defer to "the considered judgment of the elected branches of government on how to address a crisis in the national health-care market."

The Justice Department filed its Supreme Court petition far earlier than it had to. The department had foreshadowed its intentions Monday when it announced it would not ask all 11 judges of the 11th Circuit to review the August decision by the three-judge panel.

The political calculus is complicated. A decision striking down Obama's signature legislative achievement only months before the 2012 presidential election would doubtless be a blow. But a decision from a court divided along ideological lines could further energize voters already critical of last year's 5-4 campaign-finance decision, Citizens United.

A decision upholding the health-care law also might both help and hurt Obama's chances. It would represent vindication, but it also could spur some voters to redouble their efforts to elect candidates committed to repealing it.

Under the new law, all Americans with taxable income must have minimal health insurance by 2014 or pay a tax penalty that begins at $95. Verrilli said the provision is needed to make sure that all who can afford it pay a share of the costs. Uninsured persons used $116 billion worth of health-care services in 2008, he told the court, and these costs were paid by others with insurance or by taxpayers.

While the 11th Circuit struck down the mandate, the Cincinnati-based 6th Circuit ruled in a 2-1 decision that it's constitutional.

It is unclear which case the justices will agree to hear. Several individuals and the Thomas More Law Center, which describes itself as a defender of "America's Christian heritage and moral values," already has petitioned the court to review the 6th Circuit decision.

Nor is it clear which issues the justices will focus on. Agreeing to hear a case does not guarantee the Supreme Court will decide whether Congress had the power under the Constitution's commerce clause to enact the individual mandate, the question at the heart of the challenges.

The court could agree with some lower courts that some or all of the plaintiffs lack standing to sue or that the central issue is not ripe for decision. The Richmond, Va.-based 4th Circuit, for instance, ruled this month that it was premature to decide the central question, citing a federal law allowing suits only after certain taxes and penalties are due. The administration found itself in an awkward position on this question before the Supreme Court, as it initially had pressed but later abandoned the argument.

In Wednesday's brief, Verrilli said the administration did not believe it should win on the 4th Circuit's theory. It nonetheless suggested the justices consider the issue and perhaps appoint a lawyer to present arguments in favor of it, as the court occasionally does when the parties agree on a significant issue that could alter the outcome of the eventual decision.

Compiled from the Tribune Washington bureau, The New York Times and McClatchy Newspapers. Seattle Times political reporter Jim Brunner also contributed to this report.

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