AG's decision is a political move, not a smart legal action

This editorial appears in the March 24, 2010, Yakima Herald-Republic.

With applause still echoing Tuesday in the hallways of the East Wing after President Obama signed into law the transformative health care reform bill, a group of 13 attorneys general filed a lawsuit challenging its constitutionality.

Among this group was our very own Rob McKenna.

"The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty, that all citizens and legal residents have qualifying health care coverage," the lawsuit states.

On the surface, it appears to be a worthy legal question to pose.

However, overturning the mandate for Americans to carry health insurance is seen by legal experts as a long shot at best.

That's because the health care reform law was crafted as tax legislation. The Constitution clearly states that Congress has the power to raise taxes. And while it may seem logical to assume Americans should have the right not to pay for health care, it again has no basis in constitutional law.

"There is no case law, post 1937, that would support an individual's right not to buy health care if the government wants to mandate it," Erwin Chemerinsky, a constitutional scholar and dean of the University of California, Irvine School of Law, told the New York Times.

The professor noted that Congress often passes laws limiting individual rights. Take, for instance, the Civil Rights Act of 1964, which forced hotels and restaurants to serve minorities.

The lawsuit challenging the reform law gained momentum several weeks ago when Florida Attorney General Bill McCollum started seeking allies. Of the 13 attorneys general, all are Republican except for James "Buddy" Caldwell of Louisiana.

It's also worth noting that a number of these attorneys general have either declared or are leaning heavily toward running for their state's highest office. It's no secret McKenna is readying a run for governor in 2012.

So have politics played a part in the decision by these attorneys general to file suit? A compelling argument could be made to that effect.

McKenna's entry into the lawsuit was clumsy at best. He failed to even ask for Gov. Chris Gregoire's advice. As a duly elected public official, McKenna is not required to enlist the governor's support and, as the state's top lawyer, he can bring action on behalf of citizens of the state. It still would have been prudent for the Republican attorney general to at least engage the Democratic governor in a conversation, instead of forcing her to read about it in a news article.

Now we have Gregoire vowing to file a brief in opposition, with McKenna's office being compelled to argue on her behalf. How's that for having the state talk out of both sides of its mouth?

As for the health care law, it's far from perfect. The law does not go far enough to rein in excessive medical spending on procedures and tests and fails to set adequate rewards to encourage people to stay healthy. It also comes up short with regards to lessening the threat of frivolous malpractice suits, which drive physicians to practice costly defensive medicine.

But at the very heart of any type of health care reform is the requirement to boost the pool of people being insured. Without vastly increasing this number -- to include those who are healthy and those who are sick -- the costs per citizen for health care will never come down.

That's something McKenna should have discussed with the citizens of this state before suing the federal government on their behalf. His unilateral action speaks more of opportunistic maneuvering than legal acumen. We have come to expect more of our state's usually astute attorney general. In this instance, we didn't get it.

McKenna, his fellow Republicans in Congress and anyone else who cares should now begin the work of improving the just-passed legislation, not spending years and untold millions trying to return us to a system that is today failing millions and bankrupting thousands every year.

* Members of the Yakima Herald-Republic editorial board are Michael Shepard, Bob Crider, Spencer Hatton and Karen Troianello.