Almost three weeks ago, in response to this group article (to which I contributed a short profile of Marcelas Owens), I received the following e-mail, subject line: "Inaccurate Reporting in The Stranger."

Hi Eli,

I wish you wouldn’t scare your readers by inaccurately reporting that the lawsuit Attorney General McKenna joined will prevent good people from accessing the benefits of the recently approved health care reform legislation.

As this state’s independently elected attorney general, McKenna takes his duty to defend Washington's constitutional rights very seriously. Health care reform is much too important to build on an unconstitutional foundation.

The two main provisions of the lawsuit he joined deal with:

1) The unprecedented and unconstitutional requirement that individuals lacking health insurance must purchase private insurance or face a fine; and

2) The massive expansion of the Medicaid program which will unconstitutionally require states to eventually spend billions more on this program at a time when state budgets are already in crisis.

The filing states believe both of these mandates represent expansions of federal authority that 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.” The states are also concerned the individual mandate violates the Commerce Clause because never before has Congress required all Americans to purchase a specific product in the private marketplace.

This suit will not “overturn” or “repeal” the new health care reform legislation.

In fact, this lawsuit will not affect the provisions of the federal health care legislation scheduled to take effect this year, including among other things:

- Allowing children access to health insurance regardless of pre-existing conditions;

- Providing seniors a rebate to fill the so-called "donut hole" in Medicare drug coverage, which severely limits prescription medication coverage expenditures over $2,700;

- Banning lifetime caps on the amount of insurance an individual can have;

- Prohibiting insurance companies from denying coverage to existing policy-holders when they get sick;

- Granting business owners with fewer than 50 employees a tax credit (covering 35 percent of health-care premiums now, increasing to 50 percent by 2014) to help cover insurance costs; and

- Allowing young adults to continue to be covered by their parents' health insurance until they reach age 27.

While many provisions of the federal health care bill meet constitutional muster, the states who have joined this suit feel strongly that the federal government exceeded its constitutional authority in certain provisions of the health care bill, and that the individual rights of the citizens they represent deserve to be given the respect that the Constitution requires.

I know this will likely not make a difference, but I thought I’d appeal to your sense of decency in unfairly and inaccurately scaring your readers.

Thank you for your time,

Janelle Guthrie
Communications Director
Office of State Attorney General Rob McKenna

That same day, I wrote back:

Hi Janelle,

Thanks for your e-mail. I understand the argument you're making, but here's what it doesn't take into consideration: The health care reform project is so complicated, and its parts so interconnected, that if you begin to knock pieces of it off the whole thing can collapse. (See here.)

In that sense, I think it's fair to say that McKenna's desired outcome has the potential to destroy the entire health care reform project by removing some essential pieces of its architecture. In which case, good people will be prevented from accessing benefits of the new law.

If you have an argument to make for how the health care reform law, as it was envisioned by the people who passed it, can still accomplish its aims without the mandate and the medicare expansion (and can still functionally exist, as envisioned, without those two essential pieces), I'm all ears.

In the meantime, please feel free to post your reaction in the comments of the story.


To which Guthrie responded:

Thanks, Eli. I’ll do some more research and take you up on your offer. I see you note the whole thing “can” collapse and that’s where the scare tactics come in. Nothing that’s scheduled to go into effect this year will be impacted by the suit. I’m sure there’s an argument that the two pieces the states are challenging as unconstitutional can be removed or modified without damaging peoples’ access to health care—and neither takes effect until 2014 anyway. I’ll get back to you.

With regard to your offer to post in the comments, I see that others have already posted similar sentiments in the comments so I’ll defer.

Thanks for the response, Eli.


It was a nice exchange, and I appreciated Guthrie taking the time to write. But she still hasn't fulfilled her pledge to take me up on my offer, which was made on April 1.

Today is April 20.

If McKenna's office has an explanation for how his lawsuit can succeed without undermining the architecture of the Democrats' health care reform bill and preventing good people from accessing its intended benefits, I'm still all ears.