Navigation Top
AGO Logo Graphic
AGO Header Image
File a Complaint
Contact the AGO

Frequently Asked Questions

Q: What was this lawsuit about?


A:  As this state’s independently elected attorney general, McKenna takes his duty to defend Washington's constitutional rights very seriously. Health care reform is too important to build on an unconstitutional foundation. That is why he joined this lawsuit.


The two main provisions the states challenged were:

1) The unprecedented requirement that individuals lacking health insurance must face a fine if they don't purchase private insurance at a level determined by the federal government; and

2) The massive expansion of the Medicaid program which will require states to spend billions more at a time when state budgets are already in crisis.


The states believed that forcing people to buy a specific health insurance product in the private marketplace is beyond the power of Congress and violates the Constitution. Never before has Congress required all Americans to purchase a specific product in the private marketplace.


As Judge Roger Vinson said in his ruling in favor of the states:  “Regardless of how laudable its attempts may have been to accomplish (its) goals in passing the Act, Congress must operate within the bounds established by the Constitution. My conclusion in this case is based on an application of the Commerce Clause as it exists pursuant to the Supreme Court’s current interpretation and definition. Only the Supreme Court (or a Constitutional amendment) can expand that.”


The filing states believed 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.”


Q. What did the US Supreme Court say?


The US Supreme Court upheld most of the Affordable Care Act--including the requirement that people who do not have health insurance coverage pay a tax if they do not obtain insurance approved by the federal government.  While the majority of the Court agreed with the states that the mandate violated the Commerce clause, the Court ultimately ruled that the mandate is constitutional under Congress’s taxing power. 


The Court struck down the provision allowing the federal government to withhold from states existing Medicaid funds if states choose not to expand Medicaid as envisioned under the law, saying "Nothing in our opinion precludes Congress from offering funds under the ACA to expand the availability of health care, and requiring that states accepting such funds comply with the conditions on their use. What Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding."


Q:  How much did Washington spend on this lawsuit?


A: It's important to remember Washington was one of 26 states involved in this lawsuit. As the lead state in the multi-state suit, the Florida Attorney General negotiated a cost-sharing agreement with the bulk of the participating states to cover resources and personnel to pursue the case. Washington did not contribute to the cost-sharing agreement. No additional state resources were set aside for use on this case.


In contrast, as a leader on the predatory lending issue, Attorney General McKenna has invested a great deal of office resources into investigating predatory lending practices and foreclosure trustee issues to help struggling homeowners in Washington and those who have already suffered losses.


Q:  What is the role of the Washington Attorney General in this state? How can he unilaterally join this suit without the Governor’s permission?


A:  The Attorney General is a separately elected, independent state official.  The Attorney General derives his powers from our state constitution, which says that “the attorney general shall be the legal adviser of state officers, and shall perform such other duties as may be prescribed by law.” As recently as Sept. 2011, the Washington Supreme Court has interpreted these duties broadly, ruling that as legal adviser, his role is something more than a passive observer of state government.  Finally, the role of the Attorney General is one of many “checks and balances” in our democratic form of government.  


Q. Did the Attorney General consult with Gov. Gregoire before joining this lawsuit?


A.  Attorney General McKenna joined a conference call with fellow attorneys general on Sunday, March 21, to discuss concerns about the constitutionality of provisions of the health care bill as passed by Congress. McKenna expressed interest in joining the suit but requested time to review the brief.  McKenna received the brief the following morning. His chief deputy sent a copy of the brief to the Governor's office to review at roughly 10 a.m. and had discussions with staff in the Governor's office at that time. Attorney General McKenna called Gov. Gregoire around noon on Monday, March 22. He issued a media advisory 1 p.m. and notified Florida late on Monday afternoon he would join the suit. The suit was not filed until Tuesday, March 23, after President Obama signed the bill into law.


Q. Many Constitutional scholars, including all of those at a 2010 UW forum, contended this suit has no merit. How do you respond?


A. Multiple federal judges heard challenges to the health insurance mandate.  Not one of them dismissed the challenge as meritless or frivolous, including those who upheld the constitutionality of requiring all Americans lacking health insurance to pay a tax if they don't purchase a government-approved plan in the private marketplace. All the judges have recognized the important constitutional questions before them.


The US Supreme Court heard an extraordinary three days of oral argument March 26-28, dedicating more than five hours for oral arguments. Finally, while they ultimately upheld the bulk of the Affordable Care Act, the US Supreme Court did agree with the states on several points. First, while they ultimately ruled the individual mandate was Constitutional under Congress's taxing authority, they agreed with the states that the mandate violated the Commerce Clause of the Constitution. Second, the Court struck down the provision allowing the federal government to withhold from states existing Medicaid funds if states choose not to expand Medicaid as envisioned under the law.


(Last updated: 6-28-2012)

Content Bottom Graphic
AGO Logo