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April 02, 2010
EDITORIAL: Sections of new health-care law violate the Constitution

Special to the Seattle Times 
By Attorney General Rob McKenna

I was sworn in for the second time last year as state attorney general. The oath of office requires that I "swear to support the Constitution of the United States and the constitution and laws of the state of Washington." It's an oath that I'm honored to take — and one that I take very seriously.

Our Constitution guarantees rock-solid rights and freedoms, including free speech, due process, and the right to keep and bear arms, among others. The framers of the Constitution believed in a system of checks and balances that prevents any one branch of government from wielding unstoppable power and infringing on individual rights.

The framers stressed that the rights listed "shall not be construed to deny or disparage others retained by the people" and that there are real limits on the powers delegated to the federal government. The 10th Amendment reinforces those limits and protects individual rights, stating that undelegated powers "are reserved to the States respectively, or to the people."

I've joined 13 other state attorneys general in a bipartisan lawsuit challenging some provisions of the new federal health-care law. We're concerned that the challenged sections violate the Constitution and are providing an important check on federal power.

Improving access to health care is too important to build on an unconstitutional foundation. For the first time in our nation's history, the federal government will require all Americans to purchase a particular product in the private marketplace: health insurance. The Internal Revenue Service will fine those without a federally approved health-insurance plan.

The Constitution's Commerce Clause allows Congress to regulate interstate commerce. But does it empower Congress to force you to engage in a certain kind of commerce? If Congress can order you to buy certain kinds of health insurance, what else can they order you to buy? Could they require you to buy General Motors vehicles, because the federal government now effectively owns that carmaker?

In addition, the insurance mandate is outside the powers delegated in the Constitution to the federal government, and therefore infringes on individual rights reserved under the 10th Amendment.

We are also concerned that the massive expansion of Medicaid required under the bill violates state sovereignty by taking control of state spending, forcing a budget-busting expansion of Medicaid coverage.

In our state, as many as 300,000 new people will qualify for the program. According to Dr. Roger Stark, of the Washington Policy Center, this will cost the state $1.36 to $6.8 billion over 10 years. And it's important to note that current Medicaid spending contributes to the chronic budget shortfalls we've faced the last two years, leading many lawmakers to propose tax increases.

All Americans should have access to affordable medical coverage. No one should go bankrupt because she gets sick. Those with pre-existing conditions should not be barred from obtaining health insurance. Our lawsuit does not cancel out sections of the health-care bill that address these issues.

As attorney general, I'm an independent guardian of the law. I've sued both the Bush and Obama administrations over their legally questionable environmental policies. I've fought both political parties in the U.S. Supreme Court, successfully defending the voter-approved, top-two primary. My office aggressively pursues illegal political fundraising and advertising activities uncovered by the PDC, regardless of whom, on the left or right, committed those violations.

The lawsuit over the health-care bill is consistent with my commitment to independently fight for your rights, to uphold my oath of office and defend the Constitution.

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