by Goldy, 03/29/2010, 11:11 AM

I am not an attorney (much to my mother’s chagrin), yet longtime readers of HA know that when it comes to analyzing legal issues I’ve proven extraordinarily insightful, dating back to my first year of blogging, when I completely pegged the court decision in the BIAW/Rossi challenge of the 2004 gubernatorial election, months before the trial. And I didn’t just predict the result; I explained the legal grounds behind Judge Bridges’ ultimate decision.

So with that and other subsequent legal feathers in my cap, I’d like to take a moment to present a layman’s refutation of Attorney General Rob McKenna’s politically motivated lawsuit, that concisely explains just some of the reasons why his arguments are total bullshit, but without a lot of legal mumbo jumbo. It’s not complicated, so I’m sure even the Seattle Times editorial board can follow along.

And speaking of uncomplicated, let’s start with a recent comment from an HA regular, the aptly named Troll:

If a Republican President signed a bill requiring all U.S. citizens to purchase a handgun, and the Washington State AG filed a lawsuit saying that was unconstitutional, would Goldy say his lawsuit was absurd?

I guess the quick answer would be “No,” depending on the specifics of the law, and the legal arguments within, I would not find such a lawsuit absurd. Which gets to the heart of the absurdity of McKenna’s lawsuit, because this is not an apt legal analogy at all.

See, the recently passed health care reform legislation does not require that all U.S. citizens purchase insurance, it merely provides a tax incentive to those of us who do. If you are not covered by an employer, and if you have not purchased your own individual policy, and if your income is above certain levels, and if you don’t hail from a state that has opted out of this mandate by implementing its own qualified health insurance system, you will be required to pay an additional federal tax, starting at the greater of $95 or 1% of income in 2014, and rising to $695 or 2.5% of income in 2016, up to a cap of the national average premium on a bronze plan. Both the minimum tax and the cap will increase by the annual cost of living adjustment.

Now, some might argue that this is still a mandate to engage in some sort of economic activity because it targets a tax at those who refuse, but one could easily flip this perception around. What it really is, is a flat, 2.5% federal income tax — much along the lines of what is already imposed to fund Social Security and Medicare — but for which the law provides a substantial exemption to those who choose to purchase private health insurance.

And don’t attempt to bog down this discussion in jibberish over whether this is a “tax” or a “fee” or a “penalty” or a “mandate” or whatever. The courts have long been consistent that lawmakers need not jump through such semantic hoops; if a law is constitutional worded one way, it is constitutional worded another, as long as the practical application is the same. And clearly, our tax laws are filled with provisions intended to encourage some economic activities and discourage others.

Along these lines, a better analogy than Troll’s theoretical handgun mandate would be our current home mortgage interest deduction. The federal government does not actually mandate that we all take out big mortgages to buy homes and condos, but it grants huge tax advantages to those who do, essentially penalizing renters. Think about it: with the extra tax revenue from eliminating the home mortgage interest deduction, the federal government could lower the base tax rate on all of us.

So, if the health insurance mandate-cum-exemption is unconstitutional based on the contention that it compels individuals to engage in an economic activity, then so too would be the home mortgage interest deduction, and any number of other federal tax incentives. And I sincerely doubt that McKenna would choose to join a lawsuit seeking to deny Washington homeowners this very popular deduction.

Not to worry though, because the federal government clearly has the constitutional authority to impose a tax to pay for health care (it does so now with Medicare), and it clearly has the constitutional authority to grant deductions, exemptions and other tax incentives in order to encourage or discourage certain forms of economic activity. And from a practical standpoint, that’s all the health care reform bill really does.

Nothing radical there.

As for the other main legal contention in McKenna’s lawsuit, that the new law amounts to an unprecedented encroachment on state sovereignty by requiring states to dramatically expand their Medicaid programs and the inherent costs therein, well, that’s just a load of crap. No state is required to participate in Medicaid, but since the federal government picks up over the half the cost, all states choose to do so, and the courts have long established that Congress has the right to attach conditions to the money it provides.

Likewise, there is no requirement that states set up an insurance exchange. If a state fails to set up an exchange, the federal government will merely step in and do so on behalf of its citizens. Not sure how that meets the definition of “mandate.”

So there you have it. From a layman’s perspective, McKenna’s legal arguments amount to much ado about nothing. And while I don’t put anything past the machinations of the highly partisan and activist Roberts Court, I’m pretty damn confident that this layman is going to prove to have a better grasp of the law than our state’s attorney general.

Which, honestly, is kinda sad.

47 Responses to “A layman’s refutation of Rob McKenna’s bullshit lawsuit”

1. delbert spews:

Entitlements never die. My kids are going to be paying the bills for the baby-boomers viagra long after the juice has been sucked out of the orange and they’re left with nothing but the debt.

Social security is in the red THIS YEAR.

Medicare just got fucked over worse.

How are you going to pay for this?

2. Goldy spews:

delbert @1,

That is an entirely separate discussion from the AG’s bullshit argument that health care reform is unconstitutional. I’d argue with the facts as you present them, but it’s a reasonable discussion to have.

3. MikeBoyScout spews:

@1 delbert 03/29/2010 at 11:25 am,

“How are you going to pay for this?”

How about huge tax cuts for the top 5% and a war on some muslims? Isn’t that the stock answer?

ps. How were we going to pay for Iraqi Freedom 7 years ago? Bet your panties were not all bunched up about deficit spending to kill some muslims.

4. Chris Stefan spews:

Um, big deal the Social Security trust fund has to cash in some of its t-bills. Or are you suggesting that the US government should or will default on some of it’s debt? Would you rather the SS trust fund be invested in credit default swaps or AIG corporate bonds?

5. Roger Rabbit spews:

The GOP uses lawsuits as an organizing tactic. For example, Rossi’s election-contest lawsuit was never about winning the lawsuit, and in fact, the legal work on the GOP side of that case was shabby and shoddy. It was a $2 million investment in energizing their base, and probably worth the money, as long as they measure results by noise instead of offices won.

This lawsuit, too, is not about law but about keeping the Republican base excited. It’s probably expensive, but if it keeps donations rolling in, maybe it pays off.

Whatever the case, the people running the GOP must believe their followers have a short attention span, because they consider it necessary to serve up a new Cause Of The Week every week to keep them involved. It’s political grandstanding at its most artful, nothing more or less. And the suckers in the streets with their protest signs are swallowing it whole.

6. MikeBoyScout spews:

Goldy, your analysis is spot on.
I would expect a 2nd semester law student to be able to wade through this frivolous complaint rather quickly.
Cripes, if you read the complaint the plaintiffs identify that the state can leave the Medicaid Program, then go on to complain doing so is hard.

Goodnight Bobby Mac. No matter the office you run for in 2012, you’ll be hoisted on your own petard for this stupidity.

7. Roger Rabbit spews:

@1 “My kids are going to be paying the bills for the baby-boomers viagra”

No, they won’t, they’ll just roll it over like our grandads did with the Revolutionary War and Civil War debts, and like we did with their World War I and World War 2 debts.

8. Roger Rabbit spews:

@1 This “my kids will pay our debts” meme seems to be the new talking point issued by Wingnut Central, which fools like delbert scoop up and regurgitate on cue without a thought.

The hypocrisy of all this debt-bashing, hot on the heels of the Republican Party’s debt binge of the first decade of this century, never occurs to them.

And, of course, their thought process (if you can call it that) is light-years removed from the reality that the health care status quo they so assiduously defend will bankrupt our country in a few short years, and all of our citizens individually too, if it isn’t reformed.

9. Matty spews:

I’m not pulling the cat’s tail…I’m just holding it. I don’t know why it’s all freaked out….it oughta just calm down. Sheesh.

10. Chris Stefan spews:

But RR it is simple, Republican debt is good and Democrat debt is bad.

Republicans use debt to kill brown people in far away places and to “drown the government in a bathtub”. Democrats use debt to clean up republican messes and to try to give everyone a fair shot at “Life, Liberty, and The Pursuit of Happiness”.

11. The Ump spews:

Not all AGs share McKenna’s partisan understanding of the Constitution. See this article

12. Roger Rabbit spews:

Even if you don’t believe the CBO figures, and the projected $1.6 trillion-plus savings don’t materialize, health care reform is at worst cost-neutral over the long term.

But this isn’t about money, or constitutional rights (when have Republicans ever concerned themselves with the legality or constitutionality of what they want to do?), or even ideology.

It’s about hating the fact Democrats picked up a Republican idea — mandatory health insurance — and got it passed.

Thieves? Yeah, they’re right, we’re thieves — we stole their health reform and we’re gonna get the credit for enacting it.


13. screed spews:

My concern is that the battle over the lawsuit has become a proxy for a battle over health care reform, which I think is a mistake. As a progressive, I think enshrining, with the individual mandate, monopolistic, for-profit health insurance corporations as the primary gatekeepers to affordable health care is unconscionable, and anathema to my values. Especially given the reputation and history of these same companies. To me it is a wrong and flawed solution that will not work, to a very serious problem. And yet, the progressive community has become unhinged at the thought of this policy being challenged in the courts. Seems irrational to me. Finding the individual mandate ‘unconstitutional’ would not jeopardize health care reform – only the individual mandate.

And, if the individual mandate is found unconstitutional, the democrats would have a choice. Either make HCR constitutional by revisiting things like the public option, or medicare buy-in, or even, gasp, single payer, or let the whole thing unravel. Either side with the people or side with the companies, what’s it gonna be Dems? They promised us they’d revisit these ideas later anyway, right?, this would perhaps move their schedule up. Right now I am 95% convinced that Obama and the democratic leadership has fully adopted a corporatist agenda, if not in words then at least in deeds. How they respond to the very corporate favorable individual mandate being stripped out of health-care reform would be very telling indeed.

Either way, I think the policy and economic implications of the individual mandate are consequential enough that the courts should evaluate its constitutionality. I do not consider it a trivial or frivolous lawsuit, irregardless of the motivations of the AGs bringing it forward.

14. rhp6033 spews:

RR @ 5 said: “The GOP uses lawsuits as an organizing tactic.”

Yep. And despite the protests from our local wingnuts to the contrary, they do this the same way they do most other things – using OPM (Other People’s Money).

15. Zotz spews:

Reagan’s Solicitor General, Charles Fried (pronounced “freed”):

“Anybody who proposes something like this is either ignorant — I mean, deeply ignorant — or just grandstanding in a preposterous way. It is simply a political ploy and a pathetic one at that.”

16. rhp6033 spews:

# 13: The problem is, if the court dismisses any portion of the HCR act as unconstitutional, even the smallest trivial detail which could be easily corrected, the Republicans would politicize this and loudly argue that the Supreme Court had ruled that ANY health care reform was unconstitutional. We would be back to square one, with another year lost trying to correct the problem, and then another four-plus years in appeals (possibly with an injunction against the law going into effect until ruled upon by the U.S. Supreme Court.

The GOP goal is to make health care reform like social security reform – a “third rail” of American politics which no politician could touch except as their peril.

I also am in favor of some major changes in the law, I’m in favor of a single-payor system (that’s where most of the cost savings can be found). But we don’t need a court to throw out the existing law in order to change the current one. We just need to throw out a few more Republican senators, and possibly a few Democrates as well.

17. rhp6033 spews:

By the way, I usually watch the CBS Sunday Morning show, but I shudder everytime former Nixon speech-writer Ben Stein offers his editorial comments on the show. But lately he’s been a surprise. A week ago he argued that he, and Richard Nixon, favored health care reform over 38 years ago. This week he called out the “conservatives” for denigrating public employees, pointing out that they are the police, firefighters, school teachers, etc. which make our life better.

18. Roger Rabbit spews:

@13 “Right now I am 95% convinced that Obama and the democratic leadership has fully adopted a corporatist agenda, if not in words then at least in deeds.”

Why only 95%? Wall Street financed Obama’s most-expensive-ever campaign, and Obama filled his administration with Wall Street types. Is there any doubt that corporations own our government, and we mere citizens don’t count for squat?

Right now, everyone thinks health reform is the Issue Of The Century. Wrong. It’s global domination by rogue corporatists who answer to no one. And that won’t change until we find a way to kick corporate money out of politics, which is hard to do, because you’re asking our electeds to vote against the people who fund their campaigns and own their butts. But it can be done, because we have something corporations and their lobbyists don’t — votes. And the electeds, as much as they depend on corporate money, can’t get elected without our votes.

Corporations are creatures of statute. What legislative bodies can create, they also can change or destroy. It’s time to revisit the laws that give corporations permission to exist. Their money belongs to their shareholders, and they don’t have a right to spend it on lobbying or influence buying or free speech or whatever they wish to call it, because that money is private property that doesn’t belong to the CEOs or directors. I’m not suggesting abolishing corporations, but we need to reconfigure the legal framework of corporations so they have to give the shareholders’ money to the shareholders, instead of to themselves or their own selfish political causes.

19. Roger Rabbit spews:

“The federal government does not actually mandate that we all take out big mortgages to buy homes and condos, but it grants huge tax advantages to those who do, essentially penalizing renters.”

It penalizes equity owners, too. As most U.S. homes are underwater, I should get a tax deduction equal to 125% of the market value of my burrow, even though I own it free and clear. This tax deduction discriminates against rabbits like me who own their holes free and clear. Therefore it’s at least as unconstitutional as health reform, because it forces me to go into debt to avoid higher taxes.

20. Roger Rabbit spews:

“If a Republican President signed a bill requiring all U.S. citizens to purchase a handgun”

Actually, Republicans have already done this, at a local level. Apparently Troll never heard of Kennesaw, Georgia.,_Georgia#Gun_law

21. Puddybud is Sad my friend died spews:

More Chris Stefan BULLSHITTIUM below Well his alert was never removed…

Republicans use debt to kill brown people in far away places and to “drown the government in a bathtub”.

You are a prime time jackASS Chris Stefan.

GWBush did more for Aids in Africa (brown people) than many DUMMOCRAPTIC preznits combined. Even Bush hater Randall Robinson (Max Robinson of ABC News’ brother) claimed Bush did a lot for the AIDS in Africa cause.

Stuff it you MORONIC TWIT of a FOOL! Talking out of your arschloch again! Well, when have you had a cogent thought lately?

22. Roger Rabbit spews:

“this layman is going to prove to have better grasp of the law than our state’s attorney general”

Goldy makes a good argument for allowing non-lawyers to be elected state attorney general. And why not? He knows the law better than McKenna.

23. Michael spews:

Off Topic:
but important enough I thought I should post it.
(CNN) — Nine people federal prosecutors say belong to a “Christian warrior” militia were accused Monday of plotting to kill a Michigan law enforcement officer and then attack other police at the funeral.
A federal grand jury in Detroit, Michigan, indicted six Michigan residents, two Ohioans and an Indiana resident on charges of seditious conspiracy, attempted use of weapons of mass destruction, teaching the use of explosive materials and possessing a firearm during a crime of violence, U.S. Attorney Barbara L. McQuade and Andrew Arena, FBI special agent in charge, announced.

Remember back when we were talking/worrying about violence from the Christianist Right and all the Righties were saying it would never happen?

24. Roger Rabbit spews:

@21 “GWBush did more for Aids in Africa (brown people) than many DUMMOCRAPTIC preznits combined.”

Really? Like what? Sure, Bush promised $15 billion to fight AIDS in Africa. He also promised NASA $150 billion to land humans on Mars — then gave them a few million dollars he took out of their own budget that was already appropriated to them. See, putz, that’s how Bush operated: Big on promises, zero on delivery. Bush spent little or nothing on AIDS in Africa. That was his M.O., the guy was the Empty Promises Man, all hat and no cattle.

25. Roger Rabbit spews:

@23 Beat you to it in a previous thread. Comment #9 in Money = Speech, Part II,” to be exact.

Also, don’t miss my Comment #11 in the “Rainy morning thought” thread.

26. N in Seattle spews:

Citing the one thing that Dubya didn’t totally fuck up during the eight-year horror that was his presidency (that is, promising but not actually delivering $15 billion in aid) is no kind of refutation of the assertions about what he and his ilk did to harm governance, brown people, and the world at large.

27. Chris Stefan spews:

So do you deny that the Iraq war and the war in Afghanistan killed lots of brown people in far-away places?

28. screed spews:

Hard to disagree. I’m afraid though we are just getting started. The Obamites are currently getting ready to ‘fix’ social security. What Bush couldn’t do, Obama will. ‘Course they won’t call it ‘privatization,’ but the results will be the same.

29. KMQ1 spews:

I think the constitutional merits of the challenge are shaky, but the biggest concern I have is with the present makeup of the court, specifically Scalia, Thomas, Alito and Roberts. Several of these justices have been openly hostile towards Obama. These judges have been very visible lately, giving interviews and making speeches. This leads to the question, can they make a objective, logical ruling?

Another thing that I have been pondering. If the government is having to pay for people showing up in emergency rooms or doctor’s offices without the ability to pay can it not tax to recoup that cost? Right now my premium rates are based not on my risk factor but on the ability for the insurance company to keep making money. I therefore subsidize the large corporate plans who have the clout to get lower premiums.

The only way one could opt out would be to show they have medical coverage (which would mean they are not affected by the HR bill) or they agree that they could never receive any type of coverage during their lifetime unless it is prepaid (which is just unrealistic and impractical)

30. Colonel Cathcart spews:

The real debt that Delbert’s progeny will be paying for is all of the damage to the earth’s ecology that corporations have gotten away with without paying a cent.

31. The Ump spews:

Here’s a good essay explaining the fallacy of the legal arguments underlying McKenna’s lawsuit.

32. Colonel Cathcart spews:

…and, yes Goldy, this will be a feather in your cap — unless it isn’t — in which it will be a black eye!

I can’t decide.

33. Major —— de Coverley spews:

I’m keeping an eye on all of you — and you can be sure that I will show up when the time is propitious.

34. Alki Postings spews:

And for the Republican rebuttal:

BUT BUT BUT…Obama is a magical demon Kenyan Muslim here to outlaw Christmas and take our guns!

P.S. You Republican schmucks…”socialist” Obama has decided the government will SELL it’s shares it bought (as a bailout) of CitiGroup….for approximately $7 BILLION dollar profit. That’s right. PROFIT! This bailout helped save the financial industry AND made money for the government at the same time. AND the government is getting RID of the shares, not “taking over” the banking sector via evil socialist Kenyan magic. Republicans are fools. Just anti-science, anti-reality superstitious fools. This isn’t my personal belief, I watched the last Republican Presidential debate. Not ONE of them believed evolution was real. Not one. Magic yes, evolution no. And these people want to RUN our country in the year 2010? Please…leave it to the smart sane folks.

35. screed spews:

I’m thinking their heads may explode. On one side, there is the HATED Obama and all he represents, and on the other side, the BELOVED corporations and all they represent. What to do, what to do? Kill the individual mandate and piss off the hated Obama, but also hurt their beloved corporations? Or save the individual mandate and help their wunnerful wunnerful corporate colleagues but also help that cursed Obama? What to do, what to do… (heads explode)

36. Mike Barer spews:

This is the exact premise that you explained to me yesterday.

37. delbert spews:


How are you going to pay for it?

38. delbert spews:

@2 The AG is trying to prevent the unreasonable takeover of the healthcare system by the Federal Government.

The “why” is because America can’t afford it. The “how” is because it’s unconstitutional to make a citizen transact with a _private_ party for any goods or services (however noble) under penalty of law.

Why not require everybody to buy GM cars, it’s for a good cause…

39. delbert spews:


You ignorant fool, you can’t tell the difference between $2.5 billion to fund the wars against Islamic extremists in Iraq and Afghanistan and $940 billion to fund health care.

40. IAFF Fireman spews:

Except that not everyone contributes to social security. I don’t, and around 8,000 other firefighters in this state don’t either. Oh, and neither do the Professional Police force here in Washington. So Social Security isn’t a mandate for everyone. And the social security benefits that I have earned from being in the Military and working other jobs, is DRASTICALLY reduced. I have enough credits to qualify, but my benefit is reduced to around 30-45 %.

41. delbert spews:


Nope. You say “trust fund” like there’s a big pot of money waiting. There’s a big pile of congressional IOU’s sitting in the SS filing cabinet.

The CBO announced last fall the cash outlays for SS would exceed revenues by $7 billion. ($653 billion in revenues, $660 billion in benefits). Congress is going to have to pony up the money from somewhere.

42. MikeBoyScout spews:

@39 delbert 03/29/2010 at 2:49 pm

You ignorant fool, you can’t tell the difference between $2.5 billion to fund the wars against Islamic extremists in Iraq and Afghanistan and $940 billion to fund health care.

Yes, I’m ignorant. I did not know that the war in Iraq only cost $2.5 billion. Tell you what numbnutz, you finish your Hooked On Phonics class, then come back and give us the citation for your claim of $2.5 billion to fund the wars against Islamic extremists in Iraq.

And your comment @38

The “how” is because it’s unconstitutional to make a citizen transact with a _private_ party for any goods or services (however noble) under penalty of law.

is priceless. LUV the however noble in parenthesis. That makes it meaningful and more true.

43. Major —— de Coverley spews:

re 38: We’re already paying 16% of GDP (which is over 1oo% MORE than any other industrialized nation) for healthcare that is trivial and inadequate for the many and top of the line for fat turds like Rushbo.

Yet you winge and whine continuously: “How are we going to pay for it?”

It’ll more than pay for itself. The CBO said so. Saying you don’t believe the CBO is not an adult rebuttal. It’s not based in fact.

Do you get paid to be stoopid.

44. Steve spews:

Geez, I see where some of you freaks are trying to get into mass killings of law-enforcement officers and their families. Don’t you think that’s going more than a little bit too far? Any wingnuts here got what it takes to denounce these right-wing extremists?

45. Troglodyte Conservative spews:

N in Seattle: Finally took the wild-side walk to Peace Tree Farm. Sparse but literate. Try Miracle-Gro.

46. Richard Pope spews:

Here is an interesting question. ObamaCare provides for a subsidy for low income people (folks earning up to 400% of federal poverty level), so that health insurance will not exceed a certain percentage of income (with the percentage being lower when income is lower).

Let’s suppose that a state decides to opt out of Medicaid entirely. Will the people no longer covered by Medicaid be eligible for the ObamaCare subsidies, based on a percentage of their income? That way, the federal government picks up 100% of the tab for really poor people, instead of sharing it 50-50 or so with the states.

Maybe a state could drop out of Medicaid entirely, and then reimburse its really poor people (in the income levels formerly covered by Medicaid) for the ObamaCare subsidy. That might be a lot cheaper than the state having to pick up half of the Medicaid tab.

47. biggerbox spews:

Perhaps Troll would be interested in studying the Second Militia Act of 1792, in which Congress, and George Washington, required able-bodied white male citizens to buy their own guns, bullets and other supplies.

Been there, done that, as it were.