Home / General / ACA Trooferism: The First Time as Farce, the Second Time as Farce

ACA Trooferism: The First Time as Farce, the Second Time as Farce


still-of-kevin-costner-and-wayne-knight-in-jfk-(1991)-large-picture“If the federal government intervenes in the economy in any way, the Moops will overrun us all. Haven’t you seen that documentary about what they did to Rearden Steel?”

The satirical novel we’re all living in continues to be a little on-the-nose:

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.


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.


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.

Oh, sure, you laugh now. But you haven’t seen how Carvin’s reply will make devastating use of the typographical arts! He has a letter that proves that President, Speaker of the House, Senate Majority Leader, Secretary of State, Prime Minister, and co-writer of “Blurred Lines” Jonathan Gruber told the states to say that their serious query was a joke!

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