Dismissing the latest legal challenge as a debate over a typo could backfire.

BY SAM BAKER

The Supreme Court doesn’t care whether you think the latest Obamacare case is ridiculous.

For the second time, there’s a very real chance that the Court could tear the Affordable Care Act apart. And, also for the second time, some liberals are making the mistake of treating that existential threat like it’s a joke.

Simon Lazarus, senior counsel at the liberal Constitutional Accountability Center, says Obamacare supporters lost the public-relations battle over the 2012 challenge to the law’s individual mandate. He says they made a strategic mistake by waving off the lawsuit in its early days, treating it like a frivolous open-and-shut issue and underestimating its damaging potential.

Long before the Supreme Court agreed to hear the latest challenge, which is aimed at Obamacare’s insurance subsidies, Lazarus was urging liberals to take the cases seriously—to avoid making the same mistakes that last time helped challengers define so much of the debate.

And while no one is denying that the subsidies challenge would be devastating to the health care law if it succeeds, some of the rhetoric from the law’s defenders could backfire.

The case centers around one line in the Affordable Care Act, which authorizes tax subsidies to flow through insurance exchanges “established by the State.” The challengers say Congress only intended to provide subsidies to people whose states set up their own exchanges, and not in the states that left the job up to the federal government.

According to the Left, that line is routinely portrayed as a drafting error, a simple mistake that arose when multiple versions of the Affordable Care Act were hastily crammed into one. “Death by Typo: The Latest Frivolous Attack on Obamacare,” read the headline on a Nov. 4 Paul Krugman column.

But by downplaying the challenge in this way, referring to the sentence in question as a “typo” or a “drafting error,” Obamacare’s supporters risk playing right into the challengers’ hands, Lazarus argues. His fear is that this rhetoric is setting the groundwork for the Court’s conservative justices to say, in effect, that their hands are tied—that they see they error, are powerless to fix it, and so must dismantle the statute.

“If they see that the entire public discussion in the media assumes that there was a drafting error and that is the problem with the statute, then they can gain greater confidence that they can defuse criticism by saying, ‘You’re right, there is a drafting error, but it’s not up to the courts to correct it,’ ” Lazarus argued.

That might give them cover to eviscerate the law while providing some insulation from the perception that such a ruling would be nakedly political.

There are two sides to the challengers’ case. The first is strictly textual—the statute says “established by the State,” case closed. The second and more difficult argument is that Congress actually intended for subsidies to only be available in certain states, making Obamacare unworkable in others. And the “typo” criticism is aimed at the second line of attack.

But Obamacare supporters have a pretty strong argument on the textual side because judges—even strict constructionists like Justice Antonin Scalia—have consistently said that courts should read the entire law as one unit when handling questions of statutory interpretation. And if you read the whole Affordable Care Act, taken together, the “established by the State” line loses its clarity.

This is the crux of the Justice Department’s argument, and Lazarus said it’s the stronger one: Essentially, not to concede that Congress wrote something, intentionally or not, that looks like it limits subsidies to state-run exchanges. What Congress wrote, he argues, is the entire ACA, and focusing the analysis at that level makes it less important to figure out whether “established by the State” was a mistake and whether it’s one the courts can correct. 

“The Affordable Care Act has significant textual provisions that collide directly with the opponents’ interpretation,” he said.