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State AG Volte-face: Multi-State Vow to Sue Sparks Likely Showdown on State and Federal Constitutions

Washington State Attorney General Rob McKenna announced yesterday that he would join in a multi-state (eleven and counting) suit by States challenging the recently passed health care bill on constitutional grounds arguing that the law's requirement that everyone purchase health insurance is an unconstitutional expansion of the federal government's authority in violation of the 10th Amendment and the Commerce Clause. McKenna argues that the U.S. Attorney General is unlikely to raise any of these constitutional infirmities and that that job of raising these constitutional questions thus falls to the states. His announcement triggered Washington State Governor Christine Gregoire to announce that she would launch her own legal challenge arguing that the state attorney general does not represent the state in making such claims. McKenna responded that he is a separately elected constitutional officer under the state constitution.

Those of us with long memories may recall that way back when, when the state AG's, with then-Washington state AG Gregoire in the forefront, decided to bring a multi-state lawsuit against the tobacco industry, a similar state constitutional stand-off in Mississippi led to its Republican governor suing Mississippi's Democratic AG Michael Moore arguing that the Chief Executive of the State had to authorize any such suit both as a matter of state constitutional law and the requirements of the applicable federal law.

Both the passage of the legislation and the suits contemplated by the eleven states prompted this careful press release by Connecticut Attorney General and current U.S. Senate candidate Richard Blumenthal, who praised the historic legislation, but carefully noted that "most of the federal health care legislative provisions will not take effect for several years, providing time to review and improve the law, if necessary." Blumenthal, with his finger in the wind, deftly added, "I have received no official request from an authorized state official to challenge federal health care legislation -- but we will review such a request if we receive it."

Both Republican supporters of such state suits and Democratic opponents thereof are likely to stumble over their own past positions, with Democrats hard pressed to say that these eleven states have no business regulating national policy matters, and the Republicans facing claims that they are now a bunch of activist state AGs overstepping their powers. And did Gregoire or Blumenthal ever take the position that they required permission from the governor to bring the host of state AG regulation through litigation actions for which they have received such public notoriety and press acclaim?

The health care bill, and challenges thereto, is likely to engender both state and federal constitutional lawsuits that could tie up the courts and enrich countless attorneys for years. If there is one lesson to be learned from this, it is that any legislation that promises to drag such litigious mischief in its wake, is usually a bad idea to begin with.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.