Can the attorney general sue over health care?

Author: Daniel Himebaugh

A big story is developing in the Pacific Northwest this week, following passage of President Obama's health insurance overhaul.  MYNorthwest.com reports that Washington State Governor Chris Gregoire is fuming over Washington Attorney General Rob McKenna's decision to join a lawsuit which seeks to invalidate portions of the new federal health insurance law as unconstitutional.  Appearing on a local radio program yesterday, Gregoire said that she is pushing the state legislature to pass a bill preventing McKenna from using public funds to litigate the case.  She also indicated that she would consider suing McKenna to stop him.  But McKenna says he will press ahead with the lawsuit because he has a duty to uphold the Constitution.

So who has the upper hand?  I won't venture to guess how this dispute will be resolved, except to point our readers to an interesting case from 1978 that might be helpful in predicting the legal outcome.  In Young Americans for Freedom v. Gorton, a group of Washingtonians sued Washington Attorney General Slade Gorton for filing an amicus brief at the U.S. Supreme Court in Regents of the University of California v. Bakke.  The Young Americans for Freedom did not agree with the state's stance in that case, and alleged that the filing of the brief violated state law and their constitutional rights.  The Washington Supreme Court, however, found for Gorton and held that the attorney general had broad authority under state statute to file the brief, and that the attorney general has substantial discretion in any case "which may directly or indirectly impact upon state functions or administrative procedures and operations."

Whether this rule means that McKenna may join in a health care complaint with other states against the governor's wishes is not crystal clear, but it seems to support the attorney general.  Of course, PLF will be monitoring this situation as it develops.