McKenna keeps state in health care lawsuit

OLYMPIA – Washington Attorney General Rob McKenna won’t withdraw from a multistate lawsuit against federal health care reform, even though the other states are asking the U.S. Supreme Court to do something McKenna says he doesn’t want:

Throw out the entire law.

Washington Democrats contend McKenna, the likely GOP nominee for governor next year, should be held responsible if the Supreme Court scraps the law and leaves thousands of state residents without health care.

The 26 states involved in the challenge filed in Florida asked the high court this week to go further than the 11th Circuit Court of Appeals and declare the 2009 law unconstitutional. The circuit court said Congress didn’t have the authority to order people to buy health insurance but said that provision, known as the individual mandate, could be split off and much of the rest of the law remain.

That’s the stance McKenna has taken since the suit was filed, even though the original lawsuit left open the prospect that the entire law could be void and the trial judge ruled it was.

“The 11th Circuit Court agreed with him,” McKenna spokeswoman Janelle Guthrie said.

When the states’ attorneys general discussed a Supreme Court appeal, McKenna argued unsuccessfully that they should not try to overturn the entire law, she said.

“Even though he didn’t win on the issue, he at least made the argument” to other attorneys, Guthrie said. “If he drops off the case, he no longer has any influence on strategy.”

McKenna is not filing his own brief and will not argue the states’ case in front of the high court. But he’s not withdrawing from the case, even though the appeal goes further than he wants, because he wants to make sure the Supreme Court rules quickly on it.

Washington state’s costs in the case are minimal, Guthrie said: primarily just McKenna’s participation in conference calls over the lawsuit. He turned down a request for the state to pay a proportional share of the costs because Gov. Chris Gregoire and some other state officials disagree with his decision to join. The Washington Supreme Court, however, has said he has that authority.

The U.S. Supreme Court is being pushed from many sides to decide the issue on this case and others involving health care reform, including a separate ruling that the law and the individual mandate are constitutional. The Obama administration appealed the 11th Circuit Court decision this week, asking that the entire law be upheld, and the National Federation of Independent Businesses asked that it be struck down.

If the court agrees to take up the issue, it could hand down a decision before the 2012 elections.

The outcome would be important for President Barack Obama, who pushed for the law and is seeking re-election. But it could be equally important for McKenna, who is likely to be running for governor against U.S. Rep. Jay Inslee, a Democrat who voted for the reforms.

Washington state Democratic Chairman Dwight Pelz said McKenna’s repeated statements that he wasn’t trying to repeal the whole law aren’t believable: “He intentionally misleads the public when he claims that his politically motivated lawsuit would not overturn the Affordable Care Act,” Pelz said.