AG McKenna has the independent authority to protect constitutional rights

ATTORNEY General Rob McKenna has joined with a dozen other state attorneys general in a lawsuit challenging the constitutionality of the individual mandate in the health-care bill enacted by Congress and signed by President Obama.

That mandate requires individual citizens to purchase health-care insurance, whether they want it or not, or to pay a fine — a type of mandate never before required in U.S. history, and one McKenna feels violates the rights of the people who elected him. Since he went public with his position, Gov. Chris Gregoire and Democratic members of the Legislature have objected, asserting that McKenna is misusing his authority.

They are wrong.

The decision to challenge specific provisions of the health-care bill is well within the authority of the attorney general and is one that he has the right to make alone — as I should know, both as a former state attorney general and U.S. senator.

In Washington state, the attorney general is elected by the people and is not a member of the governor's Cabinet, nor is he a servant of the Legislature. This is in stark contrast to the federal system in which the attorney general is nominated by the president, confirmed by the Senate and serves at the president's pleasure as his chief legal adviser.

The office of attorney general is not mentioned in the U.S. Constitution, but is created here in Washington by our state constitution, which says:

"The attorney general shall be the legal adviser of the state officers, and shall perform such other duties as may be prescribed by law."

Washington statues describe that authority in language that has been interpreted by our state Supreme Court "as broad and inclusive enough to confer upon [the Attorney General] the authority to appear as amicus curiae [friend of the court]" before the U.S. Supreme Court in cases "which may directly or indirectly impact on state functions."

I am particularly familiar with that language because it appears in a decision that arose out of a challenge to my participation as attorney general in 1970s litigation over affirmative action — an issue as controversial a subject then as health care is today.

Gov. Gregoire knows that what the attorney general can do as a "friend of the court," he clearly can do as a party to a lawsuit like this one.

And it cannot be argued that the new health-care bill does not "directly or indirectly impact on state" functions. For good or ill, those potential impacts are huge.

The nature of the constitutional challenge to the individual mandate to buy health insurance is that imposing it is not a power delegated to the Congress by the U.S. Constitution, and also that it may be barred by the 10th Amendment to the Constitution. The challenge by attorneys general across the country is not to the entire health-care bill (though some have attacked it as such) but rather against potentially unconstitutional elements of the bill.

While this may be a difficult challenge for these 13 attorneys general, it presents a serious constitutional question, one that should be taken all the way to the U.S. Supreme Court. It can be argued that it would be irresponsible not to challenge it, not to present these arguments to the Supreme Court of the United States.

Finally, of course, while there is a serious question as to whether Congress, under the federal Constitution, can impose the health care individual mandates, there is no question about the authority of our state Legislature to do so here in Washington by passing a bill to that effect. So if those in Olympia who protest McKenna's lawsuit wish to do so, they have it in their power to do just that.

If passing an individual health-insurance mandate is truly their priority, perhaps they should consider doing what is within their authority, rather than making a political attack on the office and powers of the state attorney general.