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.