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April 01, 2010

As I mentioned a couple of weeks ago, the Attorney General’s Office has received more than 25,000 messages both in support of and against my decision to join the multi-state lawsuit, led by the Florida Attorney General’s Office, challenging specific provisions of the recently enacted federal health care bill.  As promised, here is an in-depth look at the issue and some background information, which I hope you will find informative.


In December 2009 I joined several state attorneys general in expressing concerns over provisions in the U.S. Senate health care bill which appeared to violate our federal Constitution. At that point, we were primarily concerned about the special arrangement in the Senate’s health care proposal which permanently exempted Nebraska from paying its share of the additional Medicaid costs mandated by the bill – costs that all other states, including Washington, would bear. The attorneys general also indicated there could be legal or constitutional concerns with other provisions of the proposed legislation, and we were waiting to see what ultimately remained on final passage of the bill.

On Tuesday, March 23, 2010, after further legal analysis and deliberation — and after notifying Governor Chris Gregoire of my decision -- I joined what was then 12 fellow Attorneys General in a bi-partisan lawsuit challenging specific provisions as an expansion of federal power beyond that we believe is allowed under the U.S. Constitution. 

Florida AG Bill McCollum filed this suit in the U.S. District Court for the Northern District of Florida. As a party to this multi-state suit, Washington is one of 18 states now participating to date.  State attorneys general typically use multi-state lawsuits to address important national issues or when more than one state has an interest in a legal matter.  As the lead state, Florida has negotiated with a Constitutional expert to reduce his regular hourly fee and cap his total fees for the case at $50,000. Florida is also negotiating a cost-sharing agreement with the bulk of the states to cover the costs of resources and personnel to pursue the case. Washington is not participating in the cost-sharing agreement so the cost to the state will be minimal. 

What the lawsuit is about

As this state’s independently elected attorney general, I take my duty to defend your constitutional rights very seriously. Health care reform is much too important to build on an unconstitutional foundation.

The two main provisions of our lawsuit deal with:

  1. The unprecedented and unconstitutional mandate that individuals lacking health insurance must purchase private insurance or face a fine; and
  2. The massive expansion of the Medicaid program required by the bill, which will unconstitutionally require states to spend billions more on this federal program at a time when state budgets are already in crisis.

The attorneys general who signed on to this lawsuit believe both of these mandates represent expansions of federal authority that violate the 10th Amendment, which states that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” We’re also concerned the individual mandate violates the Commerce Clause, because never before has Congress required all Americans to purchase a specific product in the private marketplace.

This lawsuit does not overturn the health care bill

Contrary to what has been reported, I did not join this suit to “overturn” or “repeal” the new health care reform legislation.  In fact, this lawsuit will not affect the provisions of the federal health care legislation scheduled to take effect this year, including among other things:

  • Allowing  children access to health insurance regardless of pre-existing conditions;
  • Providing seniors a rebate to fill the so-called "donut hole" in Medicare drug coverage, which severely limits prescription medication coverage expenditures over $2,700;
  • Banning lifetime caps on the amount of insurance an individual can have;
  • Prohibiting insurance companies from denying coverage to existing policy-holders when they get sick; and
  • Allowing young adults to continue to be covered by their parents' health insurance until they reach age 27.

While most provisions of the federal health care bill meet constitutional muster, my fellow Attorneys General and I feel strongly that the federal government exceeded its constitutional authority in certain provisions of the health care bill, and that the individual rights of our citizens deserve to be given the respect that the Constitution requires. 

My office has received a tremendous amount of feedback on this issue, both supporting and opposing the lawsuit.   Some claim that because the majority in Congress approved the bill, I should not pursue these constitutional concerns. However, the Constitution was adopted as a means to ensure people’s basic rights are protected, using the judicial branch and other checks and balances in our system.  

I understand that health care is a very personal issue to us all. Regardless of the positions or viewpoints expressed, it’s important that Washington citizens are making their voices heard, and I very much appreciate the public engagement in this issue.

I hope this information has been helpful to you. If you are interested in reading the complaint, reading the health care bill itself, viewing video of me discussing the issue or just reviewing frequently asked questions, you may visit our Health Care FAQ Website at:

Rob McKenna
Attorney General

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