Justice

Lawyer Attempting To Cripple Obamacare Cites Satirical Letter To Support His Supreme Court Case

CREDIT: AP Photo/Charles Dharapak

This man cannot take a joke.

The latest legal argument attacking Obamacare is literally a joke.

In 2012, officials from seven states penned a letter that, at least on its face, appears to be a very long list of requests for information from the federal Department of Health and Human Services (HHS). In reality, however, the letter was a kind of prank that state officials played on HHS, according to one official who signed onto the letter. The letter, in other words, was not actually a request for information. It was an attempt to “spoof” a similar request that HHS made of the states.

The letter came up during a panel sponsored by the insurance industry group America’s Health Insurance Plans, which concerned the Supreme Court’s pending decision in King v. Burwell. The plaintiffs in King claim that the Affordable Care Act does not permit the federal government to provide tax credits that help millions of people pay for health insurance in states that elected not to set up their own health exchange. During the panel, however, the Center for American Progress’s Neera Tanden stated that no state questioned the legality of these tax credits during an Internal Revenue Service rulemaking process which concluded that the tax credits are authorized by the law.

That claim by Tanden prompted Michael Carvin, the attorney for the plaintiffs in King, to cite the states’ letter to HHS. That letter includes, among many other inquiries, a request that HHS identify the specific legal authority that permits it to “administer premium tax credits” in the federally-run exchanges that HHS is required to set up in states that elect not to operate their own exchange. Thus, if the letter is read as an earnest request for information, it seems to suggest that the state officials who signed it had doubts about whether these tax credits are authorized by law.

But here’s the problem: the letter wasn’t an earnest request for information. According to Tim Jost, a health policy expert and law professor at Washington and Lee University, the letter was a “joke.” The states, Jost explains, “got what they thought was an unreasonable demand from the feds and they sent back a letter that mirrored the request they got from the federal government.”

A state official who signed the letter, who spoke to ThinkProgress on condition of anonymity, confirmed Jost’s understanding. The letter, which is seven pages long and consists almost entirely of a list of requests for information from the federal government, was written to mock a similar request that HHS sent the states in earnest. “We weren’t spoofing a letter from the Feds exactly,” the state official explains, “but we were very much spoofing their proposed documentation requirements of states that wanted to set up a state-based exchange by restating these in a form that would apply to the Feds.” He adds that letter was drafted “purely to illustrate the inanity of the federal requirements — and their own inability to provide anywhere near close to the same information to the states.”

ThinkProgress obtained a copy of the “spoof” letter described by this state official, as well as a document laying out many of the “proposed documentation requirements” that the federal government sought to impose on states. When the two documents are laid next to each other, it is immediately obvious that one document was written to emulate the language of the other.

In 2011, as states were deciding whether to set up their own exchange or to have the federal government operate an exchange for them, HHS produced a draft “Application for Approval of an American Health Benefit Exchange,” which is formatted similarly to the states’ letter and which uses much of the same language as the satirical letter from the states. Here, for example, is a section of HHS’s draft application:

HHS application

And here is the section of the satirical letter from 2012 which Carvin claims is evidence that state officials questioned the legal basis of the Affordable Care Act’s tax credits:

States satirical letter

Notice any similarities between the two?

You can read the entirety of HHS’s draft application at this link, and you can read the entire satirical letter from the states at this link. The former is 14 pages long, and it does consist of an especially burdensome list of requests. It is not hard to see why state officials reacted to it with mocking indignation.

But a satirical letter from the states does not help Mr. Carvin’s case any more than a “news” report from The Onion does.

If anything, Carvin’s attempt to bolster his case by unwittingly citing a practical joke is a microcosm for King v. Burwell as a whole. The central premise of Carvin’s argument is that a few words of the law can be read out of context in a way that sabotages much of the rest of the law. Once those words are read in their proper context — a context that includes a passage defining the word “Exchange” so that state-run and federally-run exchanges will be treated identically under the law — Carvin’s entire argument falls apart.