Remember how Democrats rushed into passing President Obama's Affordable Care Act back in 2010 while they still had the votes? Now health care for millions teeters on a typo.
The fate of ACA, also known — thanks to clever conservative wordsmiths — as "Obamacare," was thrown into jeopardy last week by two Republican-appointed judges on the U.S. Court of Appeals for the District of Columbia Circuit who struck down a key part of the law.
At issue is whether millions of Americans who receive health insurance subsidies through a federal exchange are entitled to receive that benefit.
In repeated mentions the law says that such subsidies may be paid only for insurance that is bought through an "exchange established by the state." In 36 states, including Illinois, the Obamacare exchanges are operated by the federal government or in partnership with the states, not "established" by the state.
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Adding to this new eruption in the continuing Obamacare drama, ACA foes had only a couple of hours to celebrate the ruling before it was contradicted. Ruling in a similar case, the Fourth Circuit Court of Appeals in Richmond, Va., unanimously upheld the federal subsidies.
Courts in the past often have deferred to the executive branch to resolve textual ambiguities like this one, as the unanimous opinion of the three judges — all appointed by Democratic presidents — explained.
Besides, as Senior Fourth Circuit Judge Andre Davis pointed out in his separate concurring opinion, the context of the mammoth ACA legislation includes a contingency provision that "permits federal officials to act in place of the state when (a state) fails to establish an Exchange."
The "sub-provision" that specifies certain conditions regarding subsidies, he wrote, does not mean that its literal reading "somehow precludes its applicability to ... federally run Exchanges or erases the contingency provision out of the statute."
Considering the magnitude of its impact, even the judges pointed out what a close call it was. Judge Thomas B. Griffith, writing for the majority of the D.C. Court, said the decision was reached "reluctantly." Judge Roger Gregory, on the Virginia court, allowed that the "defendants have the stronger position, although only slightly."
The Obama administration signaled it will appeal the D.C. court's ruling to the full 11-member appellate court, which, you may recall, gained a Democratic majority last year. That was after a rules change allowed Democrats to break a Republican logjam and confirm three Obama nominees to that court. Our judges reflect our politics.
Supreme Court, here we come? Probably. But if the appeals courts in D.C. and Virginia end up in agreement, the Supremes might decide to take a pass. Or maybe Chief Justice John Roberts will throw another life preserver to Obamacare as he did last year, perhaps to avoid any further damage to the high court's reputation for rising above partisan politics.
Or, worse for the ACA, the Supremes could declare what satirist Stephen Colbert calls "a triumph of typo over intent." That would move the health care law back into the boiling caldron from whence it came, a bitterly divided Congress.
Yet I would argue that lawmakers from both parties have reasons to dread that possibility. Obamacare's popularity is on the rise since last October's disastrous rollout, when its approvals hardly could have been much worse.
For example, a recent Commonwealth Fund survey of ACA recipients found 74 percent of newly covered Republicans and 85 percent of Democrats to be "very satisfied" or "somewhat satisfied" with their health coverage under ACA.
The fund found 9.5 million fewer uninsured adults since the beginning of Obamacare enrollment and a drop in the uninsured rate to 16.3 percent in April from 21 percent last September.
And in the 25 states that, along with the District of Columbia, expanded Medicaid under ACA, the rate of uninsured below the federal poverty line dipped from 28 percent to 17 percent, the fund reports. The sad news: States that refused to expand their programs showed an essentially unchanged rate of 36 percent.
The numbers are impressive. But more important, in my view, are word-of-mouth endorsements from people who are satisfied with Obamacare — and persuade their uninsured friends and relatives to wonder why they don't have it, too.