Idaho joins lawsuit testing constitutionality of reforms

As Idaho joined a national lawsuit against the new health care reform law Tuesday, Washington’s attorney general was both blasted and praised for jumping into the litigation a day before.

Idaho Attorney General Lawrence Wasden has the backing of Gov. Butch Otter and a legislative mandate to challenge any federal health care law.

On Tuesday, Otter criticized the federal legislation with Wasden at his side. There’s a significant legal question whether the U.S. Constitution allows the federal government to require a person to buy health insurance, Wasden said.

“Our complaint alleges the new law infringes upon the constitutional rights of Idahoans and residents of the other states by mandating all citizens and legal residents have qualifying health care coverage or pay a tax penalty,” Wasden said.

“If it is a proper role for government to mandate that citizens buy certain products, then I’m going to get potatoes in line for ’em just as quick as I can,” Otter said.

Washington Attorney General Rob McKenna had a decidedly more split response. He didn’t do interviews or hold press conferences Tuesday, but offered similar reasons for joining the challenge in a posting on his Web site. The issue is too important to build on an unconstitutional foundation, he wrote.

“This lawsuit is about ensuring that the federal government does not exceed its authority in certain provisions of the health care bill, and that the citizens of the State of Washington are given the respect that the Constitution requires,” he wrote.

Several noted law professors told McClatchy Newspapers there are significant legal hurdles in establishing the states’ standing to challenge the health care law and in convincing federal judges that it violates the Constitution.

Congress is empowered by the Constitution to regulate interstate commerce. McKenna, Wasden and others are arguing that a mandate for individuals to purchase insurance is unprecedented because uninsured individuals aren’t participating in commerce. Many constitutional law experts, however, said that the health insurance mandate is clearly within Congress’ reach under the Constitution.

“It would be surprising if the (Supreme Court) says Congress can’t regulate people who are participating in the $1 trillion health care market,” said David Freeman Engstrom, a Stanford University Law School professor. “The lawsuit probably doesn’t have legs both as a matter of precedent and as a matter of common sense.”

Sanford Levinson, a University of Texas Law School professor, said that Americans who choose not to purchase health insurance can pay a fine under the new law. Congress, he said, clearly has the authority to levy taxes and fines.

Washington Gov. Chris Gregoire repeated her criticism of joining a suit that could keep state residents from getting health insurance under the new law. While saying she didn’t want to undermine the independence of a separately elected official, she called McKenna a “lone ranger” who was required to consult with her and legislative leaders before joining the suit.

But a spokesman for McKenna said he was acting on behalf of the citizens, not any state official or agency. “Our client is the people of the state of Washington. He’s elected to be an independent legal officer,” Dan Sytman said.

Washington state Senate Majority Leader Lisa Brown, D-Spokane, sent McKenna a letter asking him to reconsider a decision at odds with a majority of the Legislature, one she contended was “fiscally and morally irresponsible” because it has the potential to knock out federal funds for health care programs in the state and health coverage for more than a million of its residents.

Democratic leaders in the state Legislature, in a special session to address the budget, are looking at options to respond to McKenna’s decision, Brown said, including a budget restriction that would keep him from spending money from his budget on the suit.

Republicans rallied to McKenna’s side. U.S. Rep. Cathy McMorris Rodgers, who like all GOP members voted against the bill, said she was standing up for state residents “who have the constitutional right to decide what is the best health care for themselves and their families.”

State Sens. Janea Holmquist, of Moses Lake, and Val Stevens, of Arlington, applauded the move, saying they had introduced a bill similar to the one passed this year in Idaho to nullify any federal health care mandate.

It didn’t receive a hearing, let alone a vote, in the regular session. State Sen. Don Benton, R-Vancouver, introduced a new version Tuesday with a section requiring the state attorney general to go to court to fight any federal health care mandates. Benton is among the GOP candidates seeking to unseat U.S. Sen. Patty Murray, a Democrat and strong supporter of health care reform.

Brown called Benton’s proposal “more theatrics than substance – there’s zero chance of it passing the Legislature.”