McKenna can challenge health care law, state high court rules

McKenna can challenge health care law, state high court rules

Credit: KING

Washington state Attorney General Rob McKenna


by Associated Press

Posted on September 1, 2011 at 11:43 AM

OLYMPIA, Wash. -- Washington Attorney General Rob McKenna has the authority to challenge President Barack Obama's health care overhaul, but the governor might have the power to intervene, the state Supreme Court said Thursday.

Justices said unanimously in their ruling that the City of Seattle cannot force McKenna to withdraw from litigation against the law. The decision emphasized that the high court was not expressing an opinion on the wisdom of challenging the law.

McKenna said he was pleased with the ruling.

"It's important that the state's constitutionally-established, independently-elected Attorney General -- whomever it may be -- have the authority to protect the legal rights of the state and its people in the years to come," he said in a statement.

The justices left open the possibility that the governor could intervene to stop McKenna's action, saying there's merit to the argument that the state's chief executive has superior authority when the two agencies disagree on the correct course of action. Gov. Chris Gregoire was not a party to the case, and the justices said they will rule separately on that issue if it comes to them.

McKenna, a Republican now running for governor, said he believes the health care law is unconstitutional because of a requirement that individuals without health insurance must purchase private insurance or face a fine.

Gregoire, a Democrat, has said in a federal court brief that McKenna's participation in the multistate lawsuit does not represent Washington's position. She has moved ahead with plans to implement the health care law.

The legal challenge against the Obama health care law will proceed with or without McKenna's support. Conflicting decisions throughout federal courts have pushed the health care dispute toward an eventual decision by the U.S. Supreme Court.

The provision requiring all Americans to carry health insurance or face a tax penalty has been at the center of the legal debate. The law does not allow insurers to turn away the sick or charge them outrageous premiums. To cover their health care costs, others -- particularly the young and healthy -- will need to pay premiums to keep costs from skyrocketing. The potential tax penalties are meant to ensure they will do so.

While Thursday's ruling affirmed the broad powers in McKenna's office, a separate ruling seemed to limit it.

Justices ordered McKenna to represent the state's public lands commissioner in a legal appeal, arguing that he doesn't have the power to deny it.

The court said it was the first time it had been presented with a case in which the attorney general had refused to represent a state official on an appeal.

"This duty is mandatory, and the attorney general has no discretion to deny the commissioner legal representation," justices wrote.

Commissioner Peter Goldmark had argued that state law requires McKenna to provide legal aid upon request, but the attorney general refused to appeal a right-of-way case in Okanogan County.

The county's Public Utility District won a lower-court case allowing it to run power lines across state trust land that Goldmark manages.

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