Article by Erik Smith. Published on Monday, June 07, 2010 EST.

‘Armchair Quarterbacks’ at the University of Washington are Wrong, McKenna Says

Alan Schauffler of KING-5 questions Attorney General Rob McKenna Friday.

By Erik Smith

Staff writer/ Washington State Wire

See Also: A Detailed Look at the Health Care Lawsuit

OLYMPIA, June 7.—The law professors are wrong about the Republican lawsuit against health care reform, says Washington’s attorney general. Those razzberries we’ve hearing from academia? Rob McKenna said he’d be surprised if he heard anything else.

            McKenna offered his own take on the national health care reform lawsuit Friday, during what was probably his most relaxed public talk on the subject since joining the suit two months ago. He was on friendly ground at Seatac, before a business-oriented crowd at the Washington Policy Center’s annual health care conference.

            And it was a measured, lawyerly account of the issues involved in the case – until McKenna was asked about the barbs he’s been getting from University of Washington law professor Stewart Jay and other academics.

            McKenna said, “I’m glad that we don’t decide constitutional questions by taking polls of law school professors.”

            The audience erupted in laughter.

McKenna went on, “By and large they have a certain point of view ideologically. The courts will look at this very seriously, and I think, frankly, that a lot of the objections that are being raised are like Lady Macbeth protesting too much.

            “They’re saying, ‘Well, of course we have authority to do something the federal government has never done before; the commerce clause [of the Constitution] allows Congress to do everything,’ and that is clearly not the case. So I appreciate the armchair quarterbacks who sit up there in the ivory towers of academia, but this is a serious question for the courts.”

            Jabs at Jay

            McKenna took a few punches in particular at Jay, who has become his most reliable legal critic. Calling the lawsuit meritless is one thing – dozens of professors nationally seem to be doing that, in columns and appearances on cable-TV talk shows. But one of Jay’s arguments challenges McKenna’s competence.    

Jay charges, among other things, that the suit was not been filed in accordance with legal procedure. He maintains that it should have been filed after health care reform takes effect in January 2014, when the states become “injured parties.”

 “He is simply mistaken about the latter point,” McKenna said. “The courts have been very clear that when you have a date certain for a law to take effect, you don’t have to wait until that date passes to bring a challenge, because it’s a certainty that it’s going to occur. So he’s just wrong about that.”

McKenna also said it is not appropriate to seek a temporary restraining order because the implementation date of the legislation is far off in the future. There will be ample time for the suit to make it all the way to the Supreme Court.

McKenna said,  “I can’t resist to also point out that Prof. Jay is the same professor who claimed that on the issue of whether or not ballot measure petitions are public records – this is the Referendum 71 case – he predicted I would lose that in the Ninth Circuit. We went 3-0.

“And he predicted I would lose in the Supreme Court when I argued on April 28, and we’re going to win that case 7-2 or 6-3, I think. So armchair quarterbacks—”

McKenna shrugged.

            Lightning Rod for Health Care Debate

All but one elected Republican attorney general in the country is suing, plus a few Republican governors – 21 states in all. The only exception was Wisconsin, which has an elected Republican attorney general who wants to sue, but who needs approval from the Democratic governor or legislature under the rules of that state. Virginia, it should be noted, is suing separately; all the others have joined together. 
           In other words, if McKenna hadn’t sued, it would have been a peculiar decision. But in this state, Democrats didn’t take time for context, and they have been hammering at him ever since. Party leaders said McKenna was making a special effort to court the teabaggers for a possible gubernatorial bid in 2012. Activists chanted outside his office, Democratic lawmakers threatened to cut off his funding, and Gov. Christine Gregoire declared he should have consulted with her, so that she could have told him not to do it.

            You have to take those arguments for what they’re worth, McKenna said Friday. Washington is one of 43 states that elect its own attorney general, rather than making its top lawyer a subservient appointee of the governor. “She said I didn’t represent her, and actually, that’s literally true,” he said. “In any lawsuit that you bring on behalf of the state of Washington, you are representing the state of Washington, not one officer of the state.”

            He said the same thing happened when Gregoire, as attorney general, sued the Bush administration over clean-air regulations. Gregoire wasn’t representing Gov. Gary Locke in that case – she made the decision to sue on her own.

            “We make these decisions based on what we think the state’s legal interests are,” he said. “No sidestepping or dodging I think is ever appropriate when there is a clear state interest at hand and there is a set of legal arguments that need to be made to defend those interests.”

McKenna said the lawsuit has attracted public furor really because it is the last target standing. The debate is done in Congress; the president has signed the bills; the only action remaining in Washington, D.C. is the quiet work of drafting of new regulations by various government agencies in advance of the national rollout in 2014. “This lawsuit is becoming a lightning rod for the entire debate over health care, not surprisingly, and people on both sides of the issue have seized on it as the latest phase of the battle over national health care reform,” he said.

            Narrowly Focused Legal Challenge

            Actually, some people are disappointed when he tells them the truth about the lawsuit, McKenna said. It doesn’t aim to overturn the health care reform bill. It can’t. It challenges only those elements of the bill that the attorneys general feel are unconstitutional. Even if they win on every point, McKenna said the health care reform bill would survive.

            “We’re challenging a half-a-dozen specific provisions out of the 2,400 page bill,” he said. “The court will attempt to sever those provisions from the rest of the bill, which is the standard practice when you’re challenging a complex statute. It is inconceivable that the Department of Justice will throw up its hands if we prevail on these six challenges and say the whole thing is off – the entire bill is null and void. They will vigorously argue that the remainder of the bill is still solid.”

            If you’d like to see the whole bill tossed out – McKenna says you need to talk to Congress about that.

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