Rob McKenna defends health care lawsuit in Issaquah High School stop
June 1, 2012
By Warren Kagarise
NEW — 12:20 p.m. June 1, 2012
In a stop at Issaquah High School early Friday, state Attorney General Rob McKenna defended Washington’s participation in a lawsuit against the federal health care law, days before the U.S. Supreme Court is expected to issue a ruling.
The top legal officer in the state used the health care lawsuit to illustrate the concept of federalism — powers shared by state and federal governments — to seniors in Jeremy Ritzer’s Advanced Placement Government & Politics class.
The lawsuit stems from a provision in the Affordable Care Act — a requirement for all Americans to enroll in a health insurance plan or pay a penalty.
“Under that mandate, for the first time, Congress is attempting to do something which they’ve never tried before in our country’s history,” McKenna said. “They’re telling Americans that they have to go into the private markets to buy a commercial product — health insurance — with their own money.”
If the Supreme Court upholds the health care law, the individual mandate is scheduled to go into effect in 2014.
“The real motivation is to get younger, healthy people to subsidize everybody else’s health insurance for them,” McKenna said.
In early 2010, not long after President Barack Obama signed the legislation into law, McKenna and other attorneys general entered a multistate lawsuit challenging the health care law. Supreme Court justices listened to arguments in the case in late March. The high court is expected to issue a decision by late June.
The decision could hinge on a 16-word clause in the U.S. Constitution included by the framers to allow Congress to regulate commerce among the states.
The chief courtroom attorney for the Obama administration, U.S. Solicitor General Donald Verrilli Jr., argued health care is unique, because everybody inevitably needs health care.
“That’s the very argument that the solicitor general made to the Supreme Court,” McKenna said in response to a question from a student. “He said health care is unique, and he argued that because someone who isn’t insured poses a risk of having to be cared for by others, they can be required to buy health insurance.”
McKenna said the number of uninsured patients is not the cause of high health care costs in the United States.
“It is far higher in this country, but it’s not because of people who are uninsured,” he said. “It’s far higher in this country because we have a much higher utilization rate.”
McKenna suggested health care savings accounts as a step to tamp down costs. Under such a system, employers and employees contribute to the account each month. The result, he said, is more cost-conscious patients.
“What we’ve discovered is that when people have health savings accounts — they have a higher deductible and lower premiums — they behave differently,” he continued. “For example, they’re more likely to ask for generic drugs that are cheaper. They’re more likely to say, ‘Well, maybe I should go visit a chiropractor before looking at having my knee operated on.’”
Overall, 26 states — led by Florida — joined the challenge to the law, a centerpiece of Obama’s presidency. The challengers briefly discussed the possibility of McKenna arguing the case before the Supreme Court, but in the end chose Paul Clement, a solicitor general for former President George W. Bush.
McKenna successfully argued before the U.S. Supreme Court in 2010 for a public-records case, and in 2007 for cases related to campaign finance law and the primary election process.
Before the arguments before the high court, McKenna held practice sessions, or moot courts, in order to anticipate questions from the justices.
“In every one of my arguments in the U.S. Supreme Court, I didn’t hear a question I hadn’t prepared for,” he said. “That means that I had to prepare for hundreds of potential questions, but it’s much better to be prepared, even if you don’t have to answer some of them.”
Each side is allotted 30 minutes to present the case. McKenna likened the experience to standing before a pitching machine in a batting cage as justices fire off questions.
“Imagine having eight guns shooting balls at you — and I say eight because Justice Thomas doesn’t ask questions,” he said.
The health care lawsuit is also a flashpoint in the race to succeed outgoing Gov. Chris Gregoire, a Democrat. McKenna, a Republican, is in a close race for governor against Democrat Jay Inslee, a former congressman.
Ritzer and students also questioned McKenna about other issues expected to appear on the state ballot in November — marijuana legalization and same-sex marriage.
The proposed marijuana initiative sets up a conflict between state and federal law. McKenna does not expect the initiative to pass.
The possible defense of marijuana legalization to the federal government is certain pose a challenge.
“They’re going to say, ‘Well, the people of the state knew or should have known that there’s this federal law that pre-empts the state law,’” McKenna said.
Though McKenna is opposed to same-sex marriage, he pledged to defend the law if voters uphold the measure. Inslee supports same-sex marriage.
“I voted for Referendum 71, which allows same-sex partners to have the legal rights of different-sex partners,” McKenna said. “I don’t support changing the definition of marriage. For me, marriage is a religious institution more than a civil institution.”