The Lawyer Who Could Kill Obamacare Tells a Revealing Joke

It depends what the meaning of “written by” is.

The U.S. Supreme Court is seen October 6, 2014 in Washington, DC.

Photographer: Alex Wong/Getty Images

The Wall Street Journal's profile of Michael Carvin, the attorney who argued for the plaintiffs today in King v. Burwell, is a fine example of how an empathetic news source can get better answers than a hostile one. The WSJ, after all, has been a publishing mill for conservatives who want the plaintiffs to win; just this week, it published an op-ed by key Republicans promising that a favorable ruling will allow Congress to create an "off-ramp" for the majority of states that would lose their ACA subsidies. In talking to the WSJ, Carvin told a joke.

He said the loss in the 2012 case, which contended Congress lacked the constitutional authority to require individuals to carry insurance, came in part because it was tough to prove what the framers would have made of the overhaul the modern health-care marketplace. He also said he faced legal precedents that, to many conservatives’ chagrin, have increasingly deferred to Congress.

In contrast, Wednesday’s argument involves “a statute that was written three years ago, not by dead white men but by living white women and minorities,” Mr. Carvin said. “It hasn’t had time to ‘grow’ or ‘evolve,’” he adds, mocking terms liberals have invoked for constitutional doctrines that conservatives deride as unsupported by the 18th century text.

TPM's Daniel Strauss gave this the full gaffe treatment. Headline: "Lawyer Arguing Against Obamacare: Statute Written By 'White Women And Minorities.'" The irony is that Carvin's joke demonstrates one of the defendants' best arguments: The people who wrote the law are still with us, and can explain what they thought. Whenever they've been asked, the Democrats (and it was all Democrats) who passed the ACA explained that the language in the bill that reserves subsidies for plans purchased "exchange established by the state" was never meant to deny subsidies. The federal exchange was always intended as a stopgap. 

"None of us contemplated that the bill as enacted could be misconstrued to limit financial help only to people in states opting to directly run health insurance marketplaces," wrote four Democratic members of Congress in 2014. "In fact, as chairs of the three House committees that collectively authored the health-care reform legislation (Ways and Means, Energy and Commerce, and Education and the Workforce), three of us issued a joint fact sheet in March 2010 reflecting our intention that financial help would be available to consumers in the state marketplaces, whether the state were to run it directly or via the federal government." 

New York Representative Joe Crowley, who attended Wednesday's arguments, said the same thing when asked how HealthCare.gov was "an exchange established by the state."

"In the language itself," he said, "it calls for the establishment, in the absence of state governments enacting exchanges, the federal government coming in as a backstop to create exchanges. In effect, a state-created exchange."

Crowley, while not a woman or minority, was in the room, looking at the justices. Calvin was arguing that the intent expressed by people like him did not matter when one read the law itself. 

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