But first, let's be clear about the question we're not asking. We're not asking whether Washington State Attorney General Rob McKenna's lawsuit against the new health care law has any chance of succeeding in the courts. At this point, that question seems to have been answered. His suit has virtually no chance of accomplishing its aims.
The question right now is whether McKenna can be prevented from pursuing this project—which the state's top officials oppose, and is hard to view as anything but a political stunt by a guy with eyes on the governor's mansion.
Here (in Article 3, Section 21) is what the Washington State Constitution says about the powers of the attorney general:
SECTION 21 ATTORNEY GENERAL, DUTIES AND SALARY. The attorney general shall be the legal adviser of the state officers, and shall perform such other duties as may be prescribed by law. He shall receive an annual salary of two thousand dollars, which may be increased by the legislature, but shall never exceed thirty-five hundred dollars per annum.
Not much in there, except a very clear indication that the state legislature defines the terms of the AG's job (and his pay, which, be assured, has now been increased above "thirty-five hundred dollars per annum").
Next, here is what the legislature has, over time, described as the duties of the Washington AG. There's a lot in there, but nothing that clearly suggests McKenna has overstepped his authority in pursuing this lawsuit.
“He probably has sufficient authority to bring this kind of action," said Hugh Spitzer, an affiliate professor at the University of Washington School of Law who specializes in Washington State constitutional law.
But, Spitzer added: "The legislature, obviously, could change that.”
There are any number of possible routes. The legislature could amend the RCW on the AG's powers to generally prohibit a Washington State attorney general from acting against the will of, say, the Washington State governor. Or, it could get very specific and prohibit any attorney general from challenging the federal Patient Protection and Affordable Care Act signed into law by President Obama on March 23, 2010. You get the idea.
Nothing like this is currently under serious discussion in the legislature, though there's talk of taking a moment during all the endless budget wrangling to add a budget provision that would bar McKenna from using public funds for his lawsuit.
We'll see what ends up happening. In the meantime, there's always this.