The local press recently has been taking Attorney General Rob McKenna to task for his involvement in this week’s U.S. Supreme Court case dealing with the Affordable Care Act (“ACA”). The Stranger’s Eli Sanders had this piece on Monday, which was a follow-up on a similar piece he wrote back in January. And Jim Brunner of The Seattle Times warned over the weekend that McKenna’s involvement could cost him politically with Washington voters.
As you probably know, McKenna signed Washington on with the State Petitioners – the group of states that brought the case against the ACA. The State Petitioners claim that the ACA’s so-called individual mandate is unconstitutional. McKenna has said publicly that that is also his view—that the individual mandate is unconstitutional. McKenna has also said, however, that by attacking the individual mandate, his goal is to get rid of only the individual mandate. He wants to keep the other parts of the ACA that he likes, such as “[p]rotections for children with pre-existing conditions, young adults wishing to stay on their parents’ plans, and for those with little or no income.”
The curious thing (at least to me) about the recent critical press is that the articles do not attack McKenna on the substance of his views. That is, the articles do not argue that McKenna should support the individual mandate or that he should (either as a matter of policy or a matter of proper application of the law) want the ACA as a whole to rise or fall with the individual mandate. Instead, the articles criticize McKenna for the inconsistency between his stated views and the views of the State Petitioners as a group. The State Petitioners, according to their filings in the Supreme Court, agree with McKenna that the individual mandate is unconstitutional, but they disagree with him on the question of whether the individual mandate is severable from the rest of the ACA. The State Petitioners have argued (and continue to argue) that if the Supreme Court strikes down the individual mandate, then the Court should sweep away the rest of the ACA with it.
Sanders argues, based on this inconsistency, that McKenna is lying to Washington voters about his views. He writes that McKenna’s “contention that he’s only going after the mandate—just the mandate!—[is] simply not credible.” And that: “McKenna’s telling the Supreme Court that the whole law needs to come down, mandate and spokes and all, while telling Washingtonians that he thinks all of the law’s great benefits can survive the striking down of the mandate.” Brunner’s criticism seems to be a bit more subtle: that by asserting one position personally but lending his name to the opposite position in court filings, McKenna is taking a political risk that may cost him with Washington voters who won’t understand (or care about) his legal parsing.
I carry no brief for Rob McKenna. On the merits of the ACA case I think the individual mandate should be upheld. I would certainly criticize McKenna for his view to the contrary as well as his decision to sign Washington onto a lawsuit arguing that the individual mandate is unconstitutional. But I don’t think the recent anti-McKenna press-bashing has been entirely fair. Sure, he may be lying to Washington voters. And maybe his position is a huge political blunder. I have no idea. But I don’t think his actions with respect to the case thus far are necessarily the actions of a liar or someone who is flopping through a political mine field.
There are lots of good, honest, rational reasons for McKenna to be doing what he’s doing, even if you assume that he’s telling the truth when he says he is anti-mandate but pro-severability:
- By joining the State Petitioners, and letting other states take the lead, McKenna is saving Washington money. One of the costs of joining a group of plaintiffs is that you cede some control over the litigation. But one of the benefits is that you disburse the burden of legal fees, which in a case like this can be quite high. As Brunner reports: “The case is being directed by the Florida Attorney General’s Office, and Washington state is not paying any of the legal costs.”
- By joining a party in the case—and the State Petitioners are a party—McKenna is more able to influence the course of the litigation. Sure, McKenna was out-voted in the group on the severability question. But at least he had a vote and was in the room. One suspects that to the extent McKenna is involved in the case at all, he’s now assisting on the anti-mandate part of the case while staying out of the way on the severability part.
- There is nothing strange about one individual in a group representation disagreeing with the others in the group about one aspect of the litigation. Individual members of multiple-party groups disagree and compromise all the time. Some disagreements are bigger than others, but when you sign on to a multiple-party group, you are agreeing to compromise on certain things where you can. The odd thing here is that we’re hearing about the disagreement because McKenna has made it public. But the fact of the disagreement itself should be no surprise.
- He’s not wrong! While neither of the parties in this case is taking McKenna’s view that the mandate is unconstitutional and severable, the Eleventh Circuit Court of Appeals adopted that view. It’s a reasonable view, at least from a legal perspective. Severing the mandate may cause problems for certain parts of the ACA, but there’s no reason it would have to affect the parts he likes: protections for children and those with little income.
- But why not sign on with the State Petitioners on the anti-mandate briefs but not sign on with the severability briefs? Well, you can’t do that when you’re an actual honest-to-goodness party in the case. A party is unified for all purposes. The State Petitioners’ brief is the State Petitioners’ brief, and that means all the State Petitioners sign on to it. If McKenna just wanted to be an amicus curiae (friend of the court) instead of a party, he could pick and choose different briefs to join. But he’s a party so he doesn’t have that luxury. Sanders makes this mistake when he takes McKenna to task for signing “a high court amicus brief” for the State Petitioners. If it were just an amicus brief McKenna could have avoided signing it. But it wasn’t an amicus brief; it was the brief for the State Petitioners—a party, of which McKenna is a member. So his name is on the brief.
- So why not just be an amicus instead of a party? Amici are sort of useless. They hardly matter outside the Supreme Court. Courts of Appeals rarely accept/consider them and District Courts almost never do. By being a party, McKenna has been able to have a voice in this litigation from the inside and from the very beginning at the trial court. Also, if he were an amicus, he would have to file his own brief on Washington’s dime. That’s what Governor Gregoire did. On the merits, I agree with the Governor. But I don’t know if we needed to hire a team of Seattle lawyers at taxpayer expense to submit a brief making that point. Again, I think it’s good for Washington taxpayers that McKenna’s limited involvement means we are saving money and not wasting the time of government employees.
- So why not just drop out? Well, I don’t think that would make much/any practical difference. McKenna is one member of a group of petitioners. Maybe his participation in strategy sessions has strengthened the anti-mandate arguments (which he likes) and narrowed or limited the severability arguments (which he doesn’t like). But really, he is just a name on the line, and his participation is largely symbolic. By publicly stating that, unlike the State Petitioners, he’s pro-severability, he’s essentially muted whatever symbolic power his name has on that anti-severability brief.
At base, I think the critics are attacking McKenna for an apparent meekness. If he really thinks the individual mandate is unconstitutional but severable, then he should be out there making that case on his own, instead of signing on with a group of petitioners who only partially agree with him. But let’s assume McKenna actually did that—hired some Seattle lawyers, got more involved in the case, and filed briefs setting forth his exact views. I doubt that Sanders and Brunner would stand up and applaud. I certainly wouldn’t! If we assume that McKenna’s stated views are actually his views (and I have no reason to suspect otherwise), then I think what he’s done thus far is about the best course of conduct you could hope for if you are a Washington taxpayer who thinks the individual mandate is constitutional and the ACA should be upheld in full.