The governor hates it. So do leaders of the state legislature, members of the Seattle City Council, members of the King County Council, and the more than 19,000 people who have joined the Facebook group “Washington Tax Payers OPT OUT of Rob McKenna’s lawsuit.”

But can anyone stop Republican attorney general Rob McKenna’s attempt to take down the new health-care law in federal court?

The simple answer is yes. Over time, the legislature has described certain parameters for the AG’s job—which currently give McKenna plenty of leeway to take the new federal health-care law to court.

“He probably has sufficient authority to bring this kind of action,” said Hugh Spitzer, an affiliate professor at the University of Washington School of Law who specializes in Washington State constitutional law. “The legislature, obviously, could change that.”

There are a number of possible routes. Lawmakers could amend restrictions on the AG’s powers to prohibit a Washington State attorney general from acting against the will of, say, the Washington State governor. Or they could get very specific and prohibit any attorney general from challenging the federal Patient Protection and Affordable Care Act signed into law by President Obama on March 23, 2010. You get the idea.

The problem with this kind of tinkering is that it can easily boomerang in unexpected ways, or flat-out backfire. To take one hypothetical example: a future Democratic AG needing to stand up to a Republican governor. For this reason, no kind of limits on McKenna’s statutory powers are currently under serious discussion in the Democrat-controlled legislature—though Jeff Reading, spokesman for the state senate Democrats, says there is talk of using the special session currently under way to bar McKenna from using public funds for his suit.

Another option, recalling McKenna from office, would face a very high hurdle. In order to get a recall petition on the ballot (which requires a staggering 710,485 voter signatures), backers would first have to convince the state supreme court that McKenna has engaged in “malfeasance, misfeasance, or violation of the oath of office.”

Political gamesmanship, yes, but those other things are not necessarily provable in this case.

All of which leaves Election Day as the best way to stop McKenna (though not, unfortunately, his lawsuit). While it will be two years before McKenna is up for reelection—or, as many suspect, runs for governor—it’s not too soon to start hanging the unpopularity of his own lawsuit around his neck. Representative Jay Inslee (D-1), a likely opponent of McKenna in the 2012 governor’s race, dove right into this strategy recently, telling a health-care rally in Seattle that even Ronald Reagan’s former solicitor general thought McKenna’s lawsuit was absurd. Inslee then asked the rally: “If Ronald Reagan’s solicitor general can figure out it’s absurd, why can’t Rob McKenna?” Repeated often enough, that’s exactly the sort of attack that could re-brand McKenna, transforming him from a “moderate” Republican to an unelectable, teabagging, right-of-Reagan extremist. recommended

Eli Sanders was The Stranger's associate editor. His book, "While the City Slept," was a finalist for the Washington State Book Award and the Dayton Literary Peace Prize. He once did this and once won...

18 replies on “How Rob McKenna’s Lawsuit Can Be Stopped”

  1. One of the benefits of this lawsuit is that once it’s over and the law is upheld, the GOP may stop yelling “unconstitutional”.

    Senator Rockefeller has advised me that
    “Some possibilities for limiting the lawsuit are currently being examined, however, there are some concerns that such limitations might prevent a future Attorney General from defending the healthcare bill.” This tells me that the Dems in the state legislature are not going to take substantive action to stop this lawsuit.

  2. If the lawsuit wins, then the law is not constitutional and should not be allowed, if the lawsuit loses, then the law is constitutional and Obama wins… This is how the system works, you can’t just blow off the constitution whenever it goes against what you want to do, those were called the Bush Years…

  3. While I see this lawsuit as frivolous and incredibly partisan all of the options but the last are totally unacceptable since they restrict a worthy att. gen. from protecting us from a rampant governor or state congress. Unfortunately we are blessed with an activist Supreme Court and I question whether or not they will support the law or their agenda.I would also support the idea that McKenna pay the costs of this suit, for sure the state has better use for these funds!

  4. This report is so biased and stupid. “Lawmakers could amend restrictions on the AG’s powers to prohibit a Washington State attorney general from acting against the will of, say, the Washington State governor. Or they could get very specific and prohibit any attorney general from challenging the federal Patient Protection and Affordable Care Act signed into law by President Obama on March 23, 2010.” Glad you pointed out that this could be used against both sides of the political field. Since those are the only options it shows that stopping this would be going against separation of powers. Oh, but of course… we’re liberal here in Washington so this must be bad right?! 55 percent of Washington voters are weary of the heath care bill… McKenna is one of our political officials actually listening to the people.

  5. Hey, #3. That’s State Senator Phil Rockefeller Democrat in Kitsap County.

    Get a clue before you post the same reply three times, you double douchebag.

  6. Speaking of political gamesmanship, where does Dino stand on this lawsuit. If he wants to take over Murray’s seat he ought to say whether he’s for or against health care.

  7. @1&2 If we had a halfway reasonable Supreme Court, that might be a viable way to go about things, but I fear with all of these state AGs filing lawsuits that the Roberts-Alito-Scalia trifecta could opt for a 5-4 activist ruling. Though I agree with Namora, none of the tactical options for reining in McKenna are any better than the ruling we’d like to prevent. And besides, even if we were to take steps to block a Washington lawsuit, with the AGs in Florida, South Carolina, Texas, Utah, Louisiana, Alabama, Michigan, Colorado, Pennsylvania, Idaho, and South Dakota also filing suit, it wouldn’t make any difference anyway. We might as well preserve the integrity of our state’s institutions and cross our fingers that Scalia or Thomas retires soon…

  8. Funny how when if its Obama going against the constitution is perfectly ok! If you support your ends over the constitution, rather using the correct way of creating laws, then you are no better than bush. This mandate does nothing but force you pay to a private company and be fined by the federal government if you don’t pay.

    We had to put up with Bush bending the law, I was expecting more from Obama. Yes, most of the healthcare bill is great, but the mandate is wrong, pure unconstitutional. But then, it seems breaking the constitution and calling it legal seems to be the new Fed way. Obama is no better than Bush.

  9. I don’t frequently have a reason to throw up my hands and groan, “Oh for fuck’s sake, Slog,” but this is one of them.

    Why the hell are we even discussing monkeying around with the state constitution or holding a recall to stop the AG from filing a lawsuit? It would be just as much political gamesmanship as the lawsuit in question, not to mention set a shitty legal precedent, in addition to the obvious risks to WA Dems that Eli mentions (though, as in the case of the MA Dems, they’d have deserved it).

    The Stranger is hardly a nonpartisan paper and it doesn’t have to be, but I don’t understand how you can suggest or condone the same kind of nakedly partisan chicanery you regularly bawl the GOPs out for. How hypocritical of you.

  10. This bill is crap! its not even close to the systems in canada and europe! Its a mess of idiots trying to impress us, the only good thing in this bill, is that youngsters won’t be denied coverage. But now I have to get insurance or i will be fined! Its crap and I will vote out every piece of crap out that wants to take my rights away!

  11. The health care reform bill was written by the insurance companies, because it enriches them; the bill is horrible for people and works to enslave them, making them “wards of the state”. Read it.

  12. Dear Washington,

    When you are feeling depressed about the Douchebag in the AG office, please see Coleman versus Franken in Minnesota. There was all this chest banging “we’re gonna sue” crap going on then too. And then Al finally got to go to Washington, AFTER Coleman spent thousands of dollars and cost Minnesota one Senate vote for months. He WAS running for governor.

    Like I said, I’m counting on the Republicans jumping the shark and Caribou Barbie running on a Nader-esque third party thus dividing the electorate and ensuring Obama’s second term.

    Payback’s a bitch. And I agree that this healthcare bill ain’t even close, but hell… it’s in the park. It’s a start.

  16. @11 – the mandate is actually a Republican idea – last floated by Senator Bennett of Utah in 2009, and previously sponsored by Bennett and Hatch in 1993. So if you have issues with the mandate, start there. And the mandate isn’t really a mandate – more like a coercion. If you get health insurance, you get an income tax credit. If you don’t get health insurance, you get an income tax penalty. And no, the IRS will not be hunting anyone down. Congress is well within its right under the Commerce clause to regulate the national economy, and health care most certainly does fall within that realm, particularly given the proportion of money spent on it in this country these days.

    I am glad McKenna showed his true colors, because prior to this, I was more inclined to think he was one of the few reasonable Republicans left, and might have considered voting for him depending on the other candidates. Now I know better. Hopefully the legislature will cut off funding for this lawsuit so as not to waste the few taxpayer dollars we have left, but otherwise, let it play out. Once the constitutionality is proven, then the extremists can turn back to their “activist judges on the Supreme Court” whining, and we can watch more uneducated hypocrites on government assistance protest “big government” and handouts, threaten politicians and judges, and have their hate-filled tea parties where they display their misspelled signs and little confederate flags and claim that this isn’t all based on race.

  17. how is it reasonable to make americans buy insurance? There is nothing in this world that we currently are forced to purchase. My freedom should not be taken from me or anyone else! This is flippin ridiculous that you are making this a republican/democrat issue! This is a bad bill, that a group of morons wrote while making backroom deals. If you are so romanced by this bill then keep living in your dream world, just forget to vote, then we have one less idiot ruining it for the rest of us.

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