Great Moments in Legal Theory

The opinion of the U.S.D.C. for the E.D. of Kentucky in Bevin v. Stewart dismissing a lawsuit brought by the Governor of Kentucky, Mattew Bevin, is short.  However, it requires a bit of background to understand how incredibly preposterous the Governor’s actions were.  Here’s the chronology:

  1. Kentucky had one of the most expansive and successful expanded state programs under the ACA.
  2. Bevin and the Republicans in the Kentucky legislature moved to roll back the expanded program.
  3. In order to effect the rollback, Kentucky had to obtain what is known as a Section 1115 waiver from the Department of Health and Human Services.
  4. Of course, under the Trump Administration, Bevin et al. obtained that waiver.
  5. Sixteen plaintiffs filed suit in the United States District Court for the District of Columbia challenging the waiver on various grounds.
  6. Kentucky intervened in the D.C. action.
  7. Ultimately, the “D.C. Court determined in the D.C. Action that [HHS] acted arbitrarily and capriciously in granting the Kentucky . . . waiver, and the [D.C.] Court remanded the matter to HHS.”
  8. Now, prior to the ruling by the D.C. Court, Bevin brought an action in the E.D. of Kentucky against the sixteen plaintiffs in the D.C. Action, challenging the claims they brought in the D.C. Action.

There is clearly something wrong with this picture.  In essence, in the E.D. of Kentucky case, Bevin was claiming that Kentucky would be damaged if the sixteen plaintiffs prevailed in the case that they brought in D.C. and the D.C. Court ruled in their favor. That theory was quickly disposed of by the Kentucky Court.  However, Bevin’s clever attempt at legal legerdemain would have, if successful, opened a realm of possibilities.  Consider the following:

An individual enters a bank.  He presents the bank teller with a note and a cloth sack, directing that all of the cash in the teller’s drawer be placed in the sack or else.  The fearful teller complies.  Seeing what is transpiring, a brave bank patron jumps on the individual involved in the transaction, wrestling him to the ground and recovering the cash.  The individual is arrested by the police for bank robbery.  Under Bevin’s theory, that result is wrong.

According to Bevin, the individual who presented the teller with the note made the teller an offer.  The bank teller, by his or her actions, accepted that offer and a contract was thereby created.  The individual involved was damaged due to tortious interference with his contract by the bank patron and the police officer.

7 thoughts on “Great Moments in Legal Theory”

  1. I don't know all the ins and outs, but I suspect you left out one crucial point, i.e., that Kentuckians voted for representatives whom they knew to oppose the Medicare expansion for their state. This is called democracy.

    1. Can you elaborate on that? It's not immediately obvious how the results of various Kentucky state legislature elections bear on the question of whether HHS acted properly in granting the KY waiver.

        1. So…what, in your view, IS the relevance of the Kentucky elections that you cite?

          Note that the government of the state of Kentucky wasn't a named defendant in the suit brought by Stewart et al. against the federal government.

          Are you perhaps advancing the novel legal doctrine that citizens owe a duty of obedience to their state governments and therefore it's insubordinate for them to bring claims in federal court, in essence "going over the heads" of their proper superiors in the state government?

  2. The article starts off in the second sentence with "However,it requires a bit of background to understand how incredibly preposterous the Governor’s actions were." I would say he was just using the tools available to him to challenge the claims being used to thwart the policy he was elected on. He played by the rules and lost. No big deal, from a governance standpoint, saying nothing about whether his policies are any good. What is preposterous is Mr. Levine's attempt at an argument by analogy.

    1. Look: Alpha files a lawsuit against Beta. Alpha prevails with respect to his lawsuit against Beta. Beta then sues Alpha claiming that he has been damaged. In Beta's lawsuit, the alleged damages are the amounts he is required to pay to Alpha via the judgment brought by Alpha in the initial lawsuit. In other words, Beta's damages are the amounts the court in Alpha's lawsuit required Beta to pay to Alpha.

      That's preposterous.

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