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Um… could somebody on the Republican side of the aisle — you know, those breathlessly opposing, on both policy and legal grounds, the health insurance mandate within the Patient Protection and Affordable Care Act — please explain to me the difference between this mandate, and that within their own Social Security privatization proposals that would require Americans to invest a portion of their paychecks with private financial firms?

And don’t tell me that under Social Security privatization, you still have the option to stick with old government run system, because you have the same exact option with the so-called health insurance “mandate”: don’t purchase private insurance, and the federal government will just take the cost of the premium out of your paycheck in the form of a tax. You know, just like Social Security.

Honestly, how is it constitutional to require economic participation on the one hand, but not on the other? Or are Republicans just a bunch of grandstanding, unprincipled hypocrites?

So far, Washington Attorney General Rob McKenna has attempted to have it both ways. On the one hand he insists that he supports the notion of health care reform. On the other hand, he insists on joining a lawsuit seeking to rule unconstitutional a provision without which the entire reform effort would collapse.

Let’s be clear, without the insurance mandate, the main provisions of the recently passed Patient Protection and Affordable Care Act — the elimination of exclusions for preexisting conditions, and the common practice of “rescission” once policyholders get sick — would be entirely unworkable.

Why? Well, if there is no mandate that you purchase insurance, yet insurance companies couldn’t reject you due to preexisting conditions, then it would be in your economic self-interest to only purchase insurance once you got sick. And with only sick people paying premiums, the premiums would be unaffordable.

So without the requirement that you or your employer purchase private insurance, there can be only two alternatives. Either rescission and pre-existing conditions remain a prominent feature of our health insurance system, or we move to a single payer system in which government is the sole insurer, and there is no private insurance to be mandated.

Considering his recent public embrace of the Teabaggers, it’s hard to imagine McKenna endorsing the latter, so I can only assume his supposedly principled opposition to the recently passed bill implies support for the former. By filing this lawsuit, Rob McKenna is inherently defending the rights of insurance companies to deny you coverage, either by excluding pre-existing conditions, or by searching for technicalities with which to justify cancelation of your policy once you get sick.

And… well… as a Democrat, I sure hope he runs on that in 2012.

Courtesy R.R. Anderson

Remember yesterday morning when in my layman’s refutation of Attorney General Rob McKenna’s lawsuit, I suggested that the federal home mortgage interest deduction would be an apt analogy to the implementation of the insurance mandate in our new health care reform law? Well later that day, that’s exactly the analogy that University of Washington law professor and constitutional expert Stewart Jay used to refute McKenna’s argument that the insurance mandate is somehow unprecedented:

“They are giving you tax benefits for entering the private market in some fashion. So for example, I get to deduct the cost of my mortgage – with a private bank – on my income taxes every year. In effect, I’m strongly encouraged to buy a home. So that’s the whole point of the deduction,” Jay said. “The fact that (people) are being encouraged to buy private instead of public insurance is an extraordinary argument for a Republican to make. If what he’s saying is true, the problem is corrected by eliminating private insurers from the system.”

Huh. So the question is, if the analogy is so obvious that even a layman like me could see, why can’t McKenna? Is he that bad a lawyer, or is he simply being disingenuous in claiming a loftier goal behind such obvious political grandstanding?

Former Seattle Times subscriber K.J. relates her conversation with customer service:

I called and cancelled my subscription. I told the CS rep that I was insulted the Blethen’s would call my opposition a “politically motivated hiss,” and instead of hissing I was cancelling my delivery and to be sure to tell Mr. Blethen I hadn’t forgotten about the time he shot his neighbor’s dog.

CS rep didn’t seem to know that story.

Over 19,000 citizens have joined the “Washington Tax Payers OPT OUT of Rob McKenna’s Lawsuit” Facebook group over the past week, yet the Times dismisses our opposition as a mere “politically orchestrated hiss.”

So if you’re sick and tired of being disrespected by Frank Blethen and his cronies, cancel your subscription and send a copy of your correspondence to me, and I’ll be happy to post it to HA, with or without attribution.

The medical marijuana trial in Shelton of a terminally ill woman and her husband continues tomorrow morning:

What: Mason County v. Karen Mower and John Reed
When: Wednesday, March 31 @ 9:00 a.m.
Where: Mason County Courthouse, 419 N 4th St. in Shelton
Map

If you happen to have the day off, please consider making the trip down to Shelton to show your support.

Note to Teabaggers: you lost the war.

And by “war,” I don’t mean the battle over health care reform, although you lost that too. No, I’m referring to the Civil War, or as many in your ranks surely refer to it, “the War of Northern Aggression.”

See, if you really look closely at the Teabaggers’ pseudo-legalese re-imagining of the Commerce Clause and the 10th Amendment, it’s clear that they apparently believe that they live in the Confederate States of America, whose constitution, while largely based on that of the real America, failed to grant its federal government sufficient power to do the kinda things national governments need to do in order to prosper and survive… you know, like directly raise the revenue and armies necessary to win a fucking war.

Or as one historian famously put it, the Confederacy “died of states’ rights.”

So yeah, the Teabaggers already lost the states’ rights war. First on the battlefield in the 1860’s, and then in the courts and the Congress a century later. And these United States of America are eminently stronger for their loss.

So I guess it’s wrong of me, as I sometimes do, to ask the Teabaggers why they hate America, when they clearly love America. They just love the one on the wrong side of history.

Please lecture us about fiscal responsibility some more. I guess you can argue, however, that lesbian bondage-themed clubs are a form of free market enterprise.

U.S. Senator Maria Cantwell at yesterday’s health care reform celebration, introducing Washington’s 20-year-old Basic Health Plan to Attorney General Rob McKenna, explaining why it allows WA to opt out of the mandate if we choose, and urging him to “innovate, not litigate.”

Yet another disgruntled ex-reader cancels their subscription to the Seattle Times:

Editor
Seattle Times

By this email I am canceling my subscription to the Seattle Times. Your endorsement of Rob McKenna’s self-serving challenge to the constitutionality of the health insurance reform bill argues that the suit is a challenge to Big Insurance that progressives should approve. The idea that the Seattle Times supports the challenge out of a concern for the power of corporations in American life lacks any credible evidence in the editorial positions historically taken by the Times.

The Times has every right to support McKenna’s efforts to tack the gubernatorial shoals of Tea Parties and Clubs for Growth, but doing it with a lecture about what liberals should believe grates one last time too many on me. Lawsuits are supposed to be filed in a good faith belief in the positions advanced. Unless he is dumb and, therefore not qualified to be Governor, McKenna cannot believe that this lawsuit has merit. When McKenna files and the Times endorses a suit against corporate personhood to overturn Santa Clara County vs. Southern Pacific Railroad, I’ll re-subscribe.

I’ve learned to live without the PI. Living without the Times will be like noticing it’s not raining.

Jan Bianchi
Attorney at Law

Nearly 19,000 citizens have joined the “Washington Tax Payers OPT OUT of Rob McKenna’s Lawsuit” Facebook group over the past week, yet the Times dismisses our opposition as a mere “politically orchestrated hiss.”

So if you’re sick and tired of being disrespected by Frank Blethen and his cronies, cancel your subscription and send a copy of your correspondence to me, and I’ll be happy to post it to HA, with or without attribution.

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.

Another former Seattle Times reader cancels their subscription:

To whom it may concern,

Independently, within hours of Attorney General Rob McKenna’s announcement Monday of his lawsuit to stop federal health care reform, both my wife and I had joined Facebook groups and signed petitions opposing the lawsuit. We did so because we were appalled and angry that an elected official would unilaterally take a step, for crass political purposes, so completely at odds with the desires of a vast majority of the constituents he has taken an oath to serve, as well as almost all of the federal officials (8 of 11) those constituents have elected.

And today I open up our copy of the Seattle Times to see, in the first sentence of your editorial supporting McKenna, the anger and revulsion we have had in common with pretty much everyone I’ve talked with this week sneered at, in the editorial’s very first words, as a “politically orchestrated hiss.”

Fuck. You. Please cancel our subscription immediately.

Of course, Mr. Blethen, and his sycophants on the Times editorial board, have every right to espouse editorial opinions at odds with the majority of people in the city whose name stains your masthead. (Have you considered “Lubbock”? It’s a better fit.) We’ve come to expect it, particularly since the demise of the P-I. What you do *not* have the right to do is gratuitiously insult us, and expect that we will remain your customers, even as your news staff and coverage continues to shrink and other media outlets emerge that do a better job of covering almost everything you publish.

We have remained home delivery subscribers out of loyalty. This is how you view your loyal customers?

No wonder your business is failing. Don’t let us stop you. Please add us to your list of disgusted former customers.

If you’ve canceled your Seattle Times subscription, send a copy to me, or relate your phone conversation, and I’ll post it here on HA, with or without attribution.

It’s so awesome how we continue to get petulant lectures (from the people who nearly destroyed capitalism) about how capitalism should be. They drove us off a cliff, and now they’re complaining about the airbags.

Rep. Jay Inslee on Attorney General Rob McKenna’s “absurd” lawsuit against health care reform:

“If Ronald Reagan’s Solicitor General can figure out it’s absurd, why can’t Rob McKenna?”

Yeah, I suppose Marcelas Owens would kick McKenna’s ass, but it’s the debate between Inslee and McKenna that I’m really looking forward to.

Hundreds of supporters gathered today to celebrate and defend health care reform, though I doubt the Seattle Times will bother to report on it, as it’s not like two governors, two U.S. Senators, and two U.S. Representatives were there or anything.

Now if there had been some angry handmade signs or something, now that would’ve been news.