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Originally published March 22, 2010 at 9:50 PM | Page modified March 23, 2010 at 8:21 AM

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Washington to join lawsuit over mandate

State Attorney General Rob McKenna said Monday he'll join a lawsuit challenging the health-care overhaul passed by Congress, prompting a barrage of attacks from Gov. Chris Gregoire and other state Democratic leaders.

Seattle Times political reporter

OLYMPIA — State Attorney General Rob McKenna said Monday he'll join a lawsuit challenging the health-care overhaul passed by Congress, prompting a barrage of attacks from Gov. Chris Gregoire and other state Democratic leaders.

McKenna is among at least 10 state attorneys general who say they will sue, arguing the legislation's requirement that everyone purchase health insurance is an unconstitutional expansion of federal authority.

"If the state AGs don't step up when they see a constitutional defect, then who will? It's not going to be [U.S. Attorney General] Eric Holder," said McKenna, a Republican.

The lawsuit, to be filed after President Obama signs the bill, will argue the law violates the 10th Amendment to the Constitution and the Commerce Clause, McKenna said.

Gregoire said McKenna's decision betrays the people of Washington state who will be helped by the law.

"I don't know who he represents. He doesn't represent me," Gregoire said. "I don't think he represents a million and a half Washingtonians that will be helped by this. I don't think he represents small business that will be helped by this. I don't think he represents Medicare people who will be helped by this."

Gregoire said she'll file her own legal challenge to McKenna's lawsuit, arguing he doesn't represent the state.

The feud rang with political overtones extending well beyond the health debate.

McKenna, the state's highest-ranking elected Republican, is widely believed to be positioning himself for a gubernatorial bid in 2012.

Democrats already have been working on a Web site portraying him as a conservative extremist. They pounced on his announcement Monday, saying it only proves their point.

"It says Rob McKenna cares more about his right-wing ideology than the health of the people of Washington state," said state Democratic Party Chairman Dwight Pelz.

Besides Gregoire, two other possible Democratic gubernatorial candidates — U.S. Rep. Jay Inslee and state Senate Majority Leader Lisa Brown — also weighed in.

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"The tea party can take this position. The insurance industry can take this position. But the state of Washington certainly doesn't need Rob McKenna to take that position," said Inslee, who negotiated changes in the health-care bill giving Washington state larger Medicare reimbursements.

Brown, D-Spokane, said she was "extremely disappointed" by McKenna's action. "I think this bill is good news for Washington state, so I'm not sure why he'd make a move like that."

Republicans, meanwhile, said McKenna was doing the right thing.

"Standing up for the Constitution is the job of the attorney general, and if that bill is unlawful I think the lawsuit should proceed," said state Republican Party Chairman Luke Esser.

McKenna said the suit isn't trying to undo all of the health-care legislation, just the parts he deems unconstitutional — chiefly the requirement that individuals have to buy health insurance or face fines.

Inslee said McKenna is irresponsible to pretend he can kill that portion of the law without destroying other changes. The individual mandate for insurance is needed, Inslee said, so everyone pays into the system, instead of just the elderly and sick.

Eliminating that would be "like pulling the cornerstone out of the building," Inslee said, adding that all other advantages of the bill, including an end to lifetime caps on benefits and insurers' practice of denying coverage to those with pre-existing medical conditions, would be destroyed.

McKenna said it's not his fault if bill writers pinned the whole proposal on an unconstitutional foundation. "I'm sorry if that's inconvenient," he said.

McKenna first raised objections to the bill in December but said his decision to join the lawsuit was finalized in a conference call with other attorneys general Sunday night.

The effort is being led by Florida Attorney General Bill McCollum, a Republican running for governor there.

By Monday, state attorneys general from Alabama, South Carolina, Pennsylvania, Texas, Utah, Michigan, Nebraska and Colorado had joined the effort. North Dakota officials were weighing whether to join the case.

Meanwhile, Virginia and Idaho have passed legislation aimed at blocking the insurance requirement, a Michigan Republican lawmaker is trying to put a measure on the ballot asking voters if they want to exempt the state from the overhaul and Arizona lawmakers approved a constitutional amendment that will be on the ballot in November.

Some legal scholars say such efforts are unlikely to succeed.

"There is no precedent whatsoever that would call this into question," said Mark Hall, a professor of law and public health at Wake Forest University.

Hall said the Constitution's Commerce Clause can apply broadly to allow the government to regulate health insurance and that courts have shown "a very strong presumption in favor of the validity of whatever Congress does."

States can sue, "but I can't imagine a scenario in which a judge would enjoin the implementation of the federal health-care bill," said Lawrence Friedman, a professor who teaches constitutional law at the New England School of Law in Boston.

"Federal law is supreme," he said. "There's really no room for doubt that federal law controls."

But McKenna said the health-care legislation is unique — it is the first time the federal government has mandated that individual citizens purchase a certain private product, in this case health insurance.

That's a huge expansion of federal power, he said. Other major changes to the landscape of individual rights — such as granting women the right to vote — were achieved by a constitutional amendment, he argued.

Legal issues aside, Gregoire said McKenna should have consulted with her and legislative leaders.

But McKenna said it's his call: That's why the state constitution makes his office independently elected rather than appointed, as in some states. It's "checks and balances," he said.

Material from The Associated Press and Seattle Times staff reporter Andrew Garber is included in this report.

Jim Brunner: 206-515-5628 or jbrunner@seattletimes.com

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