Yesterday the Obama administration formally appealed a ruling by a federal court in Atlanta striking down the individual insurance mandate, a core provision of the controversial Affordable Care Act (ACA). This will almost surely put the issue before US Supreme Court in its coming session, with a decision to come during the 2012 presidential election season. But 2012 is also a gubernatorial election season here in Washington state, which means Attorney General Rob McKenna has some serious 'splainin' to do about how his words don't match his actions.
The issue is "severability." In talking to both the press and the public, McKenna has insisted that he is not seeking to toss out the health care reform act in its entirety, but rather, just the individual mandate. According to McKenna, the mandate is legally severable from the rest of the ACA. From a policy perspective, it's a bullshit argument on its surface, as key reforms like eliminating preexisting conditions don't work without the mandate. But legally, this claim also flies in the face of what he and his fellow attorneys general are telling the courts:
At the same time, however, the winners in that appellate case, 26 states and the National Federation of Independent Business, also asked for high court review Wednesday, saying the entire law, and not just the individual insurance mandate, should be struck down.
McKenna's office told the Seattle Times that he was overruled by his co-plaintiffs, explaining that in a multi-state lawsuit "an individual state can't necessarily dictate to the group every aspect of the case." But that's an excuse that simply does not jibe with the timeline of a lawsuit which by his own account, McKenna took the lead in pursuing. "[T]wo of us got together, and others joined us," McKenna told the Christian Science Monitor back in March of 2010, in explaining the genesis of the lawsuit.
And it's a lawsuit that from its very first filing for summary judgement, has always sought to toss out the entire ACA:
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.
Severability is not some new issue that's suddenly popped up on appeal despite McKenna's best intentions. His lawsuit—the one he claims he took the lead in filing—has always argued that the individual mandate cannot be severed from the rest of the act. So how he can simultaneously argue in a court of law against severability, while arguing in the court of public opinion for it, and still maintain his credibility, just beggars the imagination. I mean, if he is truly at odds with his co-plaintiffs over the severability issue—if he really doesn't want to toss out the entire ACA—he could always withdraw from the case and file his own.
But when McKenna tells an audience that "it is inconceivable that one lawsuit could bring down the entire measure," at the same time he's asking the courts to do exactly that, one can only come to only one of two conclusions: Either McKenna is lying to voters and reporters about the true intensions of his lawsuit, or he's such a crappy lawyer that he truly doesn't understand its consequences.
Neither is a flattering option.