David "Goldy" Goldstein over at The Stranger has penned an enlightening and revealing article about Washington State Attorney General Rob McKenna.
An excerpt:
More than the naked, teabagger-pandering politics of it all, what should be most disturbing to voters about McKenna's involvement in the health care lawsuit is the way he's consistently misrepresented its intended goal, by repeatedly implying that most of the health care reforms could survive, even if his lawsuit succeeds. From the official Q&A on his office's website:
Attorney General McKenna believes challenging the two unconstitutional provisions will ultimately not prevent Congress from implementing other features of the health care reform legislation if they see fit... Attorney General McKenna continues to believe that individual mandate and the Medicaid expansion provisions may be deemed unconstitutional without overturning the entire health care reform act.
Recognizing that much of the health care reform package is popular with voters, and would greatly benefit Washington State, Mc-Kenna repeats this line again and again. At a June 4, 2010, conference with the conservative Washington Policy Center, McKenna insisted that "we can only challenge those provisions that we think are constitutionally defective," but "it is inconceivable that one lawsuit could bring down the entire measure." And in a March 24, 2010, interview on TVW, McKenna claimed that he actually likes many of the provisions, bluntly telling NPR's Austin Jenkins:
You can't overturn a 2,400-page law with a trillion dollars in spending and 80 new federal agencies with one lawsuit, nor do we attempt to... The governor and the legislative leaders are making it sound like this lawsuit challenges the provision in the bill regarding preexisting conditions for health insurance; it does not. That it challenges the provisions that 26-year-olds can stay on their parents' health insurance; it does not. It does not address these many, many provisions that they keep citing... The provisions we've been talking about regarding 26-year-olds and preexisting conditions, they are all going to take effect this year. They are not the subject of the lawsuit; they're not affected by it at all.
Huh. That seems pretty clear. So... um... how does McKenna explain the request for summary judgment filed in his very own lawsuit?
Plaintiffs have established that the Act's Individual Mandate and Medicaid provisions are unconstitutional. Because each of these portions is essential to the [Affordable Care Act (ACA)] as a whole, neither can be severed. It follows, as a matter of law, that the unconstitutionality of either renders the entire Act unconstitutional. Accordingly, Plaintiffs ask, as requested in Counts One and Four of the Amended Complaint, that the Court declare the entire ACA unconstitutional and enjoin its enforcement.
In the court of public opinion, McKenna has repeatedly argued that he's only challenging two unconstitutional provisions of the health care act, that the more popular components of the health care act are "not affected" at all by his lawsuit. Yet in a court of law—you know, the court that really matters—McKenna argues that these two provisions cannot be severed from the act as a whole and thus asks the judge to toss out the entire package. Yes, even the provisions regarding 26-year-olds and preexisting conditions.
Go read the whole piece. See you at the ballot drop-off box in November 2012.
1 comment:
There's hypocrisy on both sides of the HCR debate. The worst, and most damaging, was the President's continuing public claim that HCR would have a public option even after (per Daschle and many other sources) he had bargained the public option away.
If the bill had a public option, it is conceivable that Democrats could claim the mandate was a "tax" since Americans could at least choose to pay it to a government entity, rather than be forced to pay to a private corporation. Forced commercial relationships are a new power, and the Constitution is pretty explicit about new powers.
Of course, that brings up the hypocrisy of the Democrats arguing that the mandate was not a tax when passing HCR, but now trying to claim (very oddly) that the mandate is a tax before the courts now. Even the friendliest courts aren't buying that argument, not so much because of the Democrats hypocrisy (though they note it), but because the mandate is a mandate and the fine is a fine. Neither is a tax. Just ain't.
McKenna may be two-faced in what he says in public and private, but it doesn't necessarily follow that a law should stand as constitutional just because unconstitutional parts can't be severed from parts that arguably good policy.
In my opinion, though, the requirements on insurance companies can be legally severed, as the Virginia court did when ruling against the mandate. But, that doesn't mean the system that remained would be economically viable. The Democrats are again hypocritical here--arguing both that the whole must stand and that the mandate can be severed.
Not that I care much--Obama blew a chance for meaningful reform with this crappy bill. Another hypocrisy from the President was promising open negotiations, but then cutting a secret deal with the pharaceutical industry. Drugs are an enormous cost issue.
We need singlepayer, socialized medicine. It works, and it's constitutional. Might as well just say it:
Medicare for all.
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