As we reported on Monday, Attorney General Rob McKenna announced today that he was “joining a multi-state lawsuit challenging the constitutionality of the recently-approved federal health care measure, once it is signed into law.” McKenna goes on to state:
“I believe this new federal health care measure unconstitutionally imposes new requirements on our state and on its citizens. This unprecedented federal mandate, requiring all Washingtonians to purchase health insurance, violates the Commerce Clause and the 10th amendment of the US Constitution.
“I’m concerned that the measure unconstitutionally requires all Washingtonians to purchase health insurance and places an extraordinary burden on our state budget by requiring Washington to expand its Medicaid eligibility standards in violation of our state’s rights guaranteed under the10th amendment.”
McKenna is not acting at the request of the Governor or the State legislature or any State Officer. By his own press release he is acting on his own beliefs and concerns. But is he authorized to institute litigation on behalf of the State based on his own beliefs and concerns?
Article III, Sec. 21 of the Washington Constitution provides: “The attorney general shall be the legal adviser of the state officers, and shall perform such other duties as may be prescribed by law.” Thus, the Constitution itself provides no authority for McKenna to bring his health care challenge.
RCW 43.10.030, which proscribes the general powers and duties of the attorney general has only two potentially relevant provisions:
(2) Institute and prosecute all actions and proceedings for, or for the use of the state, which may be necessary in the execution of the duties of any state officer; . . .
(8) Enforce the proper application of funds appropriated for the public institutions of the state, and prosecute corporations for failure or refusal to make the reports required by law . . . .
Neither of these provisions seems to grant the power to the Attorney General to challenge the constitutionality of a federal law on his own volition. There is almost no case law in Washington interpreting the Constitutional or Statutory power of the attorney general as to the exercise of his powers other than to observe that the attorney general has the discretion within his constitutional and statutory authority whether to initiate or defend an action. So case law is of little help as a source of McKenna to proceed. So attorney general McKenna what gives you the power to bring and expend the state’s resources on such a lawsuit? Washington’s citizens deserve to know.
