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Obamacare Teeters On a Typo

By Clarence Page, Tribune Content Agency on

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.

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.

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(c) 2014 CLARENCE PAGE DISTRIBUTED BY TRIBUNE MEDIA SERVICES, INC.

 

 

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