“He doesn’t represent me,” said the governor.

 

“He doesn’t represent me,” echoed a chorus of Democratic legislators, labor unions, party officials, and the pod of progressive policy groups populating this region.

 

So whom does he represent?

 

“Many Washingtonians look to the AG to represent their rights,” he told me, citing thousands of emails and phone calls on this issue.

 

He adds, “I took an oath to uphold the federal and state constitutions.”

 

So, with the sincerity and rectitude that sometimes causes Eagle Scout McKenna to resemble a more cerebral version of Jimmy Stewart’s Mr. Smith, he signed on to the lawsuit.

 

As with consumer protection and antitrust cases with no state agency client, he’s representing the broad public interest. While he could have opted out and avoided the controversy — the suit would have proceeded without Washington’s involvement – he chose to take a stand.

 

The attorney general of Florida, who is handling legal costs, initiated the lawsuit. Washington taxpayers are not at risk. It challenges the constitutionality of two elements of the 2,000-page health care legislation. The mandate that people have health insurance or pay a penalty and the imposition of expanded Medicaid obligations, the suit contends, violate the 10th Amendment and the Commerce Clause of the U.S. Constitution.

 

Although two states, Massachusetts and New York, have imposed the “individual mandate,” the AG’s contend the federal government has no such right. Compelling individuals to purchase a government-issued product from the private market or pay a “tax,” the AGs contend, goes beyond Congress’ constitutional authority to regulate commerce. Like Humpty Dumpty, Congress presumes that words mean what it says they mean. But this peculiar tax, the lawsuit points out, is “unrelated to any taxable event or activity… (and) levied upon persons for their failure or refusal to do anything other than to exist and reside in the United States.”

 

The other prong of the complaint contends that the bill’s expansion of Medicaid steps on state sovereignty. It topples the current federal-state partnership by dictating policies, benefits and eligibility standards and compelling deficit-plagued states to absorb billions of dollars in increased costs.

 

The feds call the shots. The states foot the bill. Since its inception in the ’60s, Medicaid has grown rapidly, rivaling education in its effect on state budgets. Yet, state government has enjoyed policy latitude. It’s unrealistic for a state to withdraw from a system so deeply embedded in our health care policy. But in this decade of fiscal distress, without relief, the cost of continued participation under the reform law will destabilize many state budgets. McKenna says the new requirements will cost Washington taxpayers nearly $7 billion more over the next 10 years.

 

Other states are expected to either join the suit or initiate their own independent challenges. Constitutional scholars disagree on their prospects. McKenna is confident.

 

Opinion on the lawsuit divides based on support or opposition to the reform legislation. It’s important to separate the two. Either the thing is constitutional or it’s not. The two challenged provisions don’t take effect until 2014. If they are struck down, McKenna says, there’s time to achieve the policy objectives “without violating the Constitution and the individual rights of Americans.”

 

The most sweeping social legislation in two generations should not be erected on a flawed foundation. In this lawsuit, McKenna represents all of us.