Rob McKenna

A bunch of states – the final number may not be clear for a while though at least 11 have joined out of the chute – have filed a lawsuit challenging the constitutionality of the newly-passed federal health care law.

Putting aside the merits, the political effect could vary according to state.

Oregon Attorney General John Kroger (the one Democrat among the three northwest attorneys general) has not given any indication he will join the multi-state suit. Like he won’t.

On the other hand, joiner by Idaho Attorney General Lawrence Wasden probably was close to foregone. The Idaho Legislature had already specifically said that it wanted to challenge the federal law, and Governor C.L. “Butch” Otter signed a law to that effect. Left to act independently, Wasden’s moves might not have been especially predictable. But adding his name and Idaho’s to an already-existing case was probably too easy to do to resist. In Idaho, there’ll be no political negatives coming out of the action.

Wasden’s statement on rationale: “Our complaint alleges the new law infringes upon the constitutional rights of Idahoans and residents of the other states by mandating all citizens and legal residents have qualifying health care coverage or pay a tax penalty. The law exceeds the powers of the United States under Article I of the Constitution and violates the Tenth Amendment to the Constitution. Additionally, the tax penalty required under the law constitutes an unlawful direct tax in violation of Article I, sections 2 and 9 of the Constitution.”

Washington state has a different political calculus, though, and when Attorney General Rob McKenna joined the case, he was immediately set upon by Democrats starting with Governor Chris Gregoire.

She came out roaring: “I’m disappointed that the Attorney General would participate in a lawsuit to repeal a law that would help 1.5 million Washingtonians get access to affordable, quality health care. I completely disagree with the Attorney General’s decision and he does not represent me. He doesn’t represent the people of Washington who would get assistance so they could afford quality health insurance. He doesn’t represent the thousands of small businesses that would benefit from tax credits to provide coverage for their employees. He doesn’t represent the thousands who will no longer be denied coverage because of a pre-existing condition. He doesn’t represent the half million young people in our state who would be covered under their parents plan until they are 26. He doesn’t represent our state’s Medicare recipients. He doesn’t represent the taxpayers of Washington.”

Note the language McKenna uses as his reason: “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.”

It sounds a lot less combative than Wasden’s, and for reason. McKenna has not come across as a particularly partisan Republican, and that seems to be key to his substantial appeal, a part of the reason he is such a strong prospective gubernatorial candidate for 2012. Keep watch on this and see how well he is able to maintain that stance in the hurricane of this issue.