Punked.
Michael Carvin, the attorney for the plaintiffs in
King v. Burwell, the case pending before the Supreme Court that could end health insurance subsidies for millions, is basing part of his argument on a joke letter officials from seven states sent to the federal government. The plaintiffs' argument in
King is that Congress intended to limit subsidies to states that set up their own insurance exchanges and that, furthermore, all the states knew this going in. In a
panel discussion sponsored by insurance industry group America’s Health Insurance Plans, Carvin pointed to this letter from state officials which included a question about the legal authority the federal government was using on subsidies.
The problem is that the whole letter was basically a prank, these state officials childishly mocking a letter they had received from the federal government requesting information. A lot of 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 has both letters and they are essentially identical. It's pretty pathetic that state officials would actually react to the federal government this way in the first place. It's doubly pathetic that this is in part what the
King plaintiffs built their case on. And really, really pathetic that four Supreme Court justices decided to take this joke of a case.