Washington Attorney General Suing Over Health Care Says It’s Not A ‘Right’

Attorney General Rob McKenna (R-WA)
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Washington Attorney General Rob McKenna said yesterday that state officials suing the federal government over health care reform are in active conversations to try and convince the rest of the nation’s attorneys general to join.

McKenna (R) said in an online chat hosted by the Seattle Times that he does not believe health care is a “right” and deflected critics who believe that the lawsuit he and more than a dozen other states have joined will not be upheld.

“Health care as ‘right’ is a policy argument, not found in the law,” McKenna said. “Supporting this lawsuit means that the Constitution still matters and that every law has to be constitutional in its details, and the rest of the unchallenged law is unaffected.”

He added that “Health care is not a ‘right’ in the constitutional sense, like free speech, but certainly is provided directly and indirectly by many legislative decisions, both state and federal.”

While several chat participants lauded him for being “fantastic,” McKenna was hammered by opponents of his decision who said they won’t vote for him for governor should he decide to run in 2012. He also did not answer several pointed questions from critics about the cost of suing.

McKenna noted that Gov. Christine Gregoire (D) opposes his decision and that she’s said she would support legislation cutting off funds for the state to participate in the lawsuit. “That, of course, raises serious constitutional questions itself, under the separation of powers doctrine,” McKenna said.

Times editors running the chat asked why McKenna appeared at a rally supporting the legal case over the weekend since he says the lawsuit isn’t political motivated. “Isn’t that unusual for a purely legal matter,” asked Jim Brunner of the Times.

“I had to attend the rally, if only for the novely (sic) of the experience. I doubt it will happen again in my lifetime,” McKenna said.

In one exchange, “Mark in Seattle” asked why McKenna believes the lawsuit will succeed:

From Mark in Seattle via e-mail: Why, from a legal point of view, do you believe that the lawsuit will succeed when so many experts are dubious of the chance of success for the lawsuit?

Rob McKenna, A.G.: This is a question for the courts to decide, not the commentariat. The lawsuit is important, and is likely to succeed, because the federal government is exceeding its auhority (sic). Its appeals to the commerce clause and tax & spending clause will fail, because the individual insurance mandate has no precedent in American history. If Congress wants the federal government to have this power, it will have to move towards amending the Constitution, just as it did when it decided to pursue a federal income tax.

Among the questions that went unanswered:

I have asked my State legislators to support legislation that would prohibit the use of State funds to fund your lawsuit against aspects of Federal health care reform. If this happens, how will you proceed? How will you account for your time to the people of the State of Washington?

Read the whole chat here.

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