More McKenna vs. McKenna vs. Ziff Blog

Since my initial post on McKenna vs. McKenna, I have read this piece by Brendan Williams in The Stand, in which Williams makes some additional inconsistency/hypocrisy-based arguments against McKenna.  And as a bonus, The Stand includes this cool photo:McKenna v. McKenna

Also, I read through all of McKenna’s ACA-related press releases and statements on his website, which you can find here (just click back for previous years).  I think these statements are entirely consistent with a politician who (a) wants the mandate struck down, (b) wants some “good” parts of the ACA to survive, and (c) wants to avoid much/any public acknowledgement that in seeking goals (a) and (b), he’s allied himself and our state with folks who want to toss the whole thing out.  And that (c) problem may indeed be a problem for him.

For example, back in July 6, 2010, McKenna claimed:

Despite what many have reported, this suit will not overturn or repeal the new health care reform legislation. In fact, this lawsuit will not affect most provisions . . . . Unchallenged provisions include, among many others, allowing children access to health insurance regardless of pre-existing conditions and prohibiting insurance companies from denying coverage to existing policy-holders when they fall ill.

That’s some fine parsing.  As a confident prediction of what McKenna thinks the suit will actually accomplish, sure, it is a true statement.  But nothing in the statement makes clear that while McKenna doesn’t think the suit will overturn the ACA in its entirety, the suit is attempting to do just that.

Just a couple of weeks prior, McKenna issued a statement claiming that “The lawsuit does not challenge most provisions in this 2,400-page bill, including” various popular provisions.  Again, that is technically true.  The lawsuit only “challenges” the individual mandate and the Medicare provisions.  As the State Petitioners explain in their brief on severability (at page 27):

Severability does not involve a distinct challenge to the remaining provisions of an act . . . . Instead, severability considers the consequences for the balance of the statute of the invalidation of provisions that the challenger has already successfully attacked.

See?  The lawsuit isn’t “challenging” the good provisions that everyone likes.  It’s just that after successfully challenging the bad provisions, the lawsuit asks for everything else to get tossed out as well.

Again, I think that’s pretty thin parsing.  And it’s more of the same in McKenna’s April 2, 2010, editorial, in which he states that the lawsuit is “challenging some provisions of the new federal health-care law.”

But it’s not as if McKenna has total blindness when it comes to his co-plaintiffs’ “kill it all” stance.  In response to the District Court’s ruling, McKenna’s January 31, 2011, press release acknowledged that:  “The ruling overturns the entire law.”

Recently, in a September 2011 press release, McKenna has tried more fully to explain his involvement with the State Petitioners.  I didn’t read this release before writing my initial post, but McKenna puts forward some of the possible justifications I initially outlined:

“I continue to believe the court may find parts of the federal health care reform law unconstitutional without nullifying the entire law,” McKenna said. “There are many parts of the law that may be beneficial to Americans and their families without violating their Constitutional rights—and I believe those parts should be retained.
“In a multi-state case, legal briefs reflect the majority’s opinion on the issue,” he said. “And while I was unable to persuade my colleagues to my point of view, it’s vitally important Washington’s viewpoint continue to be represented in this case. That’s why I did not opt to remove Washington from the 26-state group.
“At this point, Washington has been protecting the rights of its citizens at very little cost by participating in conference calls and reviewing briefs without participating in the cost-sharing agreement funding the legal costs of the multi-state suit,” he said. “Filing a separate suit would require additional funds at a time when Washington has nothing to spare—and furthermore, it would not impact the outcome. This case is before the US Supreme Court where it belongs.”

That position doesn’t seem terrible to me.  It’s a cost/benefit analysis on how to devote state resources.  But given the choice McKenna made, I think his public explanations of what is actually going on in the case should reflect, well, what is actually going on in the case, not what he wants/hopes/predicts is going to happen in the case.

Yesterday, however, it was more hoping and wishing, with McKenna issuing another statement, emphasizing that Florida is taking the lead, that Washington is not paying anything for its involvement, and that “we believe the Supreme Court will eliminate the unconstitutional section while leaving the rest of the law in place.”

I continue to think that there’s no particular reason to think McKenna is lying when he says he wants to strike down the individual mandate while saving other parts of the ADA he likes (other than the usual/general reasons to disbelieve what any politician says).  But that is certainly a tough position to defend, given his involvement with the State Petitioners.  And too often, it seems that his defense takes the form of careful language, parsing, and ignoring, instead of the more direct explanation in his September 2011 press release.

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3 thoughts on “More McKenna vs. McKenna vs. Ziff Blog

  1. Pingback: McKenna vs. McKenna . . . vs. A Plaintiff Group of Ninety Women | Ziff Blog

  2. Pingback: ACA Litigation Update: Court Refuses to Force McKenna to File Severability Brief with Supreme Court | Ziff Blog

  3. Pingback: The Lawyer Professor as His Own Client | Ziff Blog

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