Washington State

Office of the Attorney General

Attorney General

Bob Ferguson


The following guest editorial appears in the Washington State Chapter of Association of Corporate Counsel newsletter:

Health care reform: Too important to build on an unconstitutional foundation

By Washington State Attorney General Rob McKenna

Health care is an intensely personal issue, whether you have excellent health insurance coverage or whether you risk surviving without it. Predictably, the complex new federal health care reform stirs strong passions from both those who support the measure and those who oppose it — regardless of whether they've read the 2,400 page measure.

On March 23, I joined a dozen (now 20) of my fellow AGs in a multistate, bipartisan lawsuit challenging a portion of the new federal health care law. We believe that certain provisions in the law expand federal authority beyond what is allowed under the U.S. Constitution. As the state’s independently elected attorney general, I take my duty to defend our state's interests and citizens’ constitutional rights very seriously. Health care reform is too important to build on an unconstitutional foundation.

The lawsuit makes two main arguments. First, we’re challenging the constitutionality of the unprecedented requirement that individuals without health insurance must purchase private insurance or face a fine. Second, we’re concerned about the constitutionality of the massive expansion of the Medicaid program, which will require states to spend billions more on this program when state budgets are already in crisis.

We believe both of these mandates represent unconstitutional expansions of federal authority and therefore 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.” Specifically, the states argue that the individual mandate violates the Commerce Clause. Never before has Congress required all Americans to purchase a specific product in the private marketplace.

Despite what many have reported, this suit will not overturn or repeal the new health care reform legislation. In fact, this lawsuit will not affect most provisions in the 2,400-page bill, including several scheduled to take effect this year. Unchallenged provisions include, among many others, allowing children access to health insurance regardless of pre-existing conditions and prohibiting insurance companies from denying coverage to existing policy-holders when they fall ill.

State attorneys general use multistate lawsuits to address important national issues or when more than one state has an interest in a legal matter. As the lead state, the Florida Attorney General is committed to handling representation in the most cost-efficient manner possible. In fact, Florida has negotiated with a respected Constitutional expert to cap his fees at $50,000 for the suit. Florida is also negotiating a cost-sharing agreement with the bulk of the states to cover the costs to pursue the case. Washington is not participating in the cost-sharing agreement.

The Attorney General is a separately elected, independent state official who 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.” Our state Supreme Court interprets these duties broadly, ruling that as legal adviser, the AG’s role is something more than a passive observer of state government. The role of the Attorney General is one of many “checks and balances” in our democratic form of government.

Some have asked how the health care bill insurance mandate differs from requirements to purchase auto insurance. But auto insurance is mandated by the states, not the federal government.  The individual states are not bound by the Constitution’s Commerce Clause.  And auto insurance is imposed on the privilege of driving, which you may choose to forgo. The health insurance requirement is a mandate on every American.

Others have asked how the insurance mandate differs from Medicare or Social Security – federally-required entitlement programs. The insurance mandate isn’t a tax. Medicare and Social Security are taxes that we pay in return for government services. It’s unprecedented for the federal government to force you to buy a product from the private market, controlling which product qualifies, and penalizing you if you don’t buy it. The government is neither collecting money you would pay for insurance nor providing the insurance. Under the health care bill, if you don’t buy a qualified, government-approved insurance package, you pay a fine. Even though the penalty would be collected by the Internal Revenue Service, it’s still a fine – not a tax.

There has been robust debate on this issue. Randy Barnett, the Carmack Waterhouse Professor of Legal Theory at Georgetown Law Center, is one of many who agree with the states. He points to two recent cases where Constitutional law professors predicted the court would uphold laws banning handguns within 1,000 feet of a school (U.S. v. Lopez) and permitting women to sue rapists in federal court (U.S. v. Morrison) — yet the U.S. Supreme Court struck these laws down because they exceeded Congress’ power under the Commerce Clause.

In a New York Times interview, Barnett says, “The individual mandate goes far beyond these previous acts. Congress has never before mandated that a citizen enter into an economic transaction with a private company, so there can be no judicial precedent for such a law. Telling someone how they must do something is one thing; commanding that they must do something is entirely different.”

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

To learn more about Washington’s involvement in the health care lawsuit, go to /health-care-lawsuit.