State attorney general operates independently

The state's high court wisely affirmed that power this week.


The constitutional challenge by a group of state attorneys general to the national health-care law --known by some as "ObamaCare" -- is far from settled. It could be years before we know whether AGs are correct in their assertion Congress doesn't have the constitutional right to force people to get health coverage.

Nevertheless, an important decision was made in that case this week. The state Supreme Court -- wisely in our view -- unanimously agreed that Washington Attorney General Rob McKenna has the authority to join in that lawsuit on behalf of the citizens of Washington state.

Seattle City Attorney Pete Holmes sued McKenna on the grounds he had overstepped his authority.

The Supreme Court saw it this way: "The people of the state of Washington have, by statute, vested the attorney general with broad authority, and Attorney General McKenna's decision to sue to enjoin the enforcement of (the health care law) falls within that broad authority. As such, Attorney General McKenna has no mandatory duty to withdraw the State from the multistate litigation."

The court, however, left open the possibility the attorney general could have to cede authority to the governor as a superior authority if there is a disagreement. But since that was not the question put before the court, the justices said they will not take a stand unless that specific question comes before them.

The justices, however, ruled in another case this week regarding McKenna's authority. The court ruled McKenna must follow the will of Commissioner of Public Lands Peter Goldmark and appeal a ruling against Goldmark's agency.

The court said state law "expressly requires the attorney general to represent the commissioner in any court when so requested by the commissioner. This duty is mandatory, and the attorney general has no discretion to deny the commissioner legal representation."

Justice Debra Stephens disagreed with the court's majority, arguing the ruling takes away McKenna's discretion to use judgment.

"The Attorney General's Office is reduced to asking 'how high' when the state officer he represents says, 'jump.'"

It's a valid concern. The law, as a matter of public policy, is flawed. Nevertheless, it is the law and McKenna's office must follow it.

But that doesn't change the fact that in the health-care lawsuit McKenna was acting on the independent authority of his office.

In the end, we believe the attorney general, as the chief law officer, has the power to act on behalf of the state whether or not the governor or the Legislature agree.

When Gov. Chris Gregoire was attorney general, as she was for 12 years, she did not run to the governor or the Legislature to seek permission before taking action. Nor should she have.

Washington's attorney general is elected directly by the people, not appointed by the governor or the Legislature.

As a result, the attorney general answers only to the voters.


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