Legal twists, turns of McKenna’s road to the U.S. Supreme Court

By BRENDAN WILLIAMS

As historic arguments unfold this week before the U.S. Supreme Court on the constitutionality of the Patient Protection and Affordable Care Act (PPACA), it’s not unreasonable that our state’s citizens should want to know what is being argued on their behalf.  After all, their attorney general, Rob McKenna, has joined litigation seeking to overturn, in their name, health care reform.

The second comment to Rule 3.1 of the Rules of Professional Conduct makes it clear attorneys must “inform themselves about the facts of their clients’ cases and the applicable law and determine that they can make good faith arguments in support of their clients’ positions.”

Yet statements from Attorney General McKenna suggest, to put it most generously, considerable confusion as to what exactly he’s arguing on behalf of his client: Washington taxpayers.

In a July 6, 2010, press release, McKenna asserted,

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 in the 2,400-page bill, including several scheduled to take effect this year. 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.

Actually, repealing the entire Act is exactly what the suit McKenna signed on to sought to do.

In a brief filed in McKenna’s name on May 14, 2010, the plaintiff states asked Judge Vinson to “Declare the Patient Protection and Affordable Care Act, as amended, to be unconstitutional[.]”

On Nov. 4, 2010, the plaintiff states moved for summary judgment, and specifically asked the judge to not save any portion of the Act, stating, “As a matter of law, the mandate’s unconstitutionality renders the entire Act unconstitutional[.]”  They warned of “[t]he danger of severing unconstitutional portions[.]”  In other words, far from his lawsuit not “affect[ing] most provisions” of the Act, McKenna was expressly asking that the politically-popular consumer protections he had stated were “[u]nchallenged” be overturned.

This pattern continued through Jan. 18, 2011, when McKenna, in a final filing with such extremists as disgraced former Mississippi Gov. Haley Barbour and Arizona Gov. Jan Brewer, asked one more time that the entire Act be overturned.  Finally, U.S. District Court Judge Roger Vinson of Florida gave McKenna and the plaintiff states exactly what they asked for – invalidating the entire Act in a Jan. 31, 2011, ruling.  He wrote, “I must conclude that the individual mandate and the remaining provisions are all inextricably bound together in purpose and must stand or fall as a single unit.  The individual mandate cannot be severed.”

Having never asked Judge Vinson, as he had suggested publicly and in his press release, to do anything other than strike down the entire Act, McKenna proceded to celebrate a decision that had, in fact, struck down provisions “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.”

As a Jan. 31, 2011, press release from his office stated, “Attorney General Rob McKenna, who joined the 26-state suit on behalf of the state of Washington, called the ruling a victory for individual and state rights.”

So which press release told the real story: The qualified one on July 6, 2010, or the unconditionally celebratory one on Jan. 31, 2011?

The website for the Attorney General’s Office states, “Attorney General Rob McKenna believes access to open government is vitally important in a free society.”

Yet how can government be trusted if it says one thing here at home in its public utterances and does quite another thing in a Florida courtroom?  At a minimum, “open government” would seem to demand citizens are entitled to straight answers as to what actions are being taken in their name.

Under Rule 1.4 of the Rules of Professional Conduct, “A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”  Should taxpayers be entitled to anything less?

So far, under the PPACA here in our state, more than 2.4 million Washingtonians no longer face lifetime caps on their health benefits; more than 52,000 young adults up to age 26 have stayed on their parents’ health plans; more than 1.2 million now have coverage for preventive care with no co-pays or deductibles; and more than 60,000 Washingtonians on Medicare have saved hundreds on their prescription drugs.

Through April 30, we are amidst another open enrollment period in which, under the PPACA, Washington parents can enroll their children in health insurance and enjoy the fact that insurers are forbidden from denying coverage to children under age 19 due to health issues.  Beginning Aug. 1, all health plans must cover contraceptives and other preventive services for women.

All of the foregoing consumer protections, some of which McKenna has spoken in favor of, will be swept aside if McKenna prevails before the U.S. Supreme Court.  And the only clear thing about McKenna’s legal position is that it is no clearer.

In a Sept. 30, 2011, press release, McKenna stated, “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.”  Yet, once again, in a Jan. 6, 2012, filing with the Court on the question of whether any of the PPACA can be saved, McKenna joined other states in arguing, “The Court should hold the ACA invalid in its entirety” so as to “honor Congress’ evident intent that the ACA stand or fall with the individual mandate.”  Did he argue that with his fingers crossed?

That begs another question: Under Rule 11 of the Federal Rules of Civil Procedure (CR), an attorney’s submission to the U.S. Supreme Court is a representation by that attorney that “the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law[.]”

In short, the attorney must believe in his or her argument. If McKenna believes parts of the PPACA are constitutional, according to his public statements, and yet represented to the Court that the Act, in its entirety, is unconstitutional, his fulfillment of his CR 11 obligation is in question.

Brendan Williams, a former state representative and Washington Supreme Court law clerk, is a candidate for Thurston County Superior Court judge.