Here's a controversial question you won't see debated on the editorial pages coming out of Fairview Fanny: Is Attorney General Rob McKenna a crappy lawyer or a crappy liar? Inquiring minds want to know.
The question was raised again last week after the Obama administration formally appealed a federal court ruling striking down the individual insurance mandate, a core provision of the landmark Affordable Care Act (ACA). The winners in that appellate case, McKenna and a cohort of right-wing attorneys general, responded by asking the high court to toss out the entire law. Which means you'd think the press might ask some serious questions about how McKenna's actions don't match his words.
In talking to both the press and the public, McKenna has repeatedly insisted that he is not seeking to toss out the entire health care reform act, but rather just the individual mandate.
At issue is a legal concept known as "severability." According to McKenna, the mandate is legally severable from the rest of the ACA. "The provisions we've been talking about regarding 26-year-olds and preexisting conditions... they are not the subject of the lawsuit," McKenna told TVW's Austin Jenkins in a March 24, 2010, interview, "they're not affected by it at all." And on June 4, 2010, speaking before a conservative audience at the Washington Policy Center, the Republican gubernatorial wannabe insisted that "it is inconceivable that one lawsuit could bring down the entire measure."
Yet from their first filing for summary judgment, McKenna and his fellow attorneys general have argued exactly the opposite in court:
Plaintiffs have established that the Act's Individual Mandate and Medicaid provisions are unconstitutional. Because each of these portions is essential to the [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 ... that the Court declare the entire ACA unconstitutional and enjoin its enforcement.
After the latest filings, McKenna's office told the Seattle Times that he was overruled by his co-plaintiffs, explaining that in a multistate 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 the lawsuit, which by his own account, McKenna took the lead in pursuing: "Two 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. Severability is not a new issue. And McKenna has been arguing both sides of it from day one. (McKenna did not respond to a request for comment.)
At a press conference on Friday, his Democratic opponent, Representative Jay Inslee, called McKenna a "camouflage candidate" like Governor Scott Walker of Wisconsin. "This lawsuit is a fraud," Inslee insisted, demanding that McKenna either drop the suit or "come clean" with voters. Given McKenna's penchant for arguing one thing in a court of law and another in the court of public opinion, it's an assessment that should be obvious, even to his fans over at Fairview Fanny. 
