Two local writers dive into the motives of state Attorney General Rob McKenna in suing the federal government over the health care bill just passed. I think they both do a pretty good job, with the caveat that each is assuming there is something beyond a legitimate belief that the health care reform just passed is unconstitutional. If McKenna believes the reform law is unconstitutional, you could rightly ask what choice he had but to challenge it.
The writers, though, are probably right in making that assumption. We can never assume that meeting constitutional muster is the only issue at play in constitutional issues. Former U.S. Supreme Court Justice Charles Evans Hughes said:
“We are under a Constitution, but the Constitution is what the judges say it is . . . “
He was also quoted by fellow justice William O. Douglas as saying 90 percent of the decisions made at the Supreme Court are based on emotions, that justices find ways in the document to back up their beliefs.
McKenna, though, seems at first blush to be the one AG in this fight with the most to lose by sticking his neck out. He’s a Republican who hasn’t been demonized by the left and is seen as a legitimate contender for the governor’s office. And yet the state is more left than right, and I think it’s not a bad bet to assume that most Washingtonians favor health care reform generally.
Let’s do assume again, as most of us have, that McKenna wants to be Washington’s governor. David Brewster at Crosscut.com offers this possibility:
Judging by the over-the-top reaction by local Democrats — talking about defunding his suit, slicing away A-G authority, even a recall — maybe McKenna was engaging in some “performance art.” That form of political craftiness consists of doing something so that your opponents fall right into the trap of extreme behavior, making you look sensible.
Then Peter Callaghan at the (Tacoma) News Tribune reminds us that to win in a November 2012 governor election, he’d first have to make it to that election, qualifying as one of the top-two vote getters in the primary. A move like this at least sets him apart from other Republicans. And if he hadn’t done it:
Had McKenna not joined the litigation he would have been savaged by Republicans and become a target of conservative talk radio. In the short term, it doesn’t hurt him much to instead be savaged by Democrats. They take their own risks by using budget maneuvers to block Mc-Kenna’s participation in the suit.
And then of course, Callaghan reveals the ultimate truth in all of this:
Anyone who claims to know how it will play in 2012 is making it up.