Senator Johnson’s ObamaCare Lawsuit

In tomorrow’s WSJ, Senator Ron Johnson (R-WI) has an op-ed explaining a new lawsuit he is filing against the Obama Administration’s implementation of the PPACA.  Specifically, this lawsuit targets a rule by the federal Office of Personnel Management that allows the federal government to subsidize health insurance for members of Congress and some legislative staff.  According to Senator Johnson, this is contrary to the text and intent of the PPACA.

The law states that as of Jan. 1, 2014, the only health-insurance plans that members of Congress and their staffs can be offered by the federal government are plans “created under” ObamaCare or “offered through an Exchange” established under ObamaCare.

Furthermore, allowing the federal government to make an employer contribution to help pay for insurance coverage was explicitly considered, debated and rejected. In doing so, Congress established that the only subsidy available to them would be the same income-based subsidy available to every other eligible American accessing insurance through an exchange. This was the confidence-building covenant supporters of the law made to reassure skeptics that ObamaCare would live up to its billing. They wanted to appear eager to avail themselves of the law’s benefits and be more than willing to subject themselves to the exact same rules, regulations and requirements as their constituents.

Eager, that is, until they began to understand what they had actually done to themselves. For instance, by agreeing to go through an exchange they cut themselves off from the option of paying for health care with pretax dollars, the way many Americans will continue to do through employer-supplied plans. That’s when they went running to President Obama for relief. The president supplied it via the Office of Personnel Management (OPM), which issued a convoluted ruling in October 2013 that ignores the clear intent and language of the law. After groping for a pretext, OPM essentially declared the federal government a small employer—magically qualifying members of Congress for coverage through a Small Business Health Options Program, exchanges where employers can buy insurance for their employees.

As Senator Johnson notes, the House of Representatives voted to overturn the OPM policy, but there has been no vote in the Senate (and it is unlikely there will be one).  Given the lack of legislative options, Senator Johnson is going to court.  According to this report, Senator Johnson will be represented by former Solicitor General Paul Clement.

The interesting question about this suit is whether it is justiciable.  As a beneficiary of the OPM policy, it’s not clear that Senator Johnson has standing to challenge it.   Here is what Senator Johnson says about this in his 0p-ed:

The legal basis for our lawsuit (which I will file with a staff member, Brooke Ericson, as the other plaintiff) includes the fact that the OPM ruling forces me, as a member of Congress, to engage in activity that I believe violates the law. It also potentially alienates members of Congress from their constituents, since those constituents are witnessing members of Congress blatantly giving themselves and their staff special treatment.

This explains why Senator Johnson wants to sue, but I am not sure that this will be sufficient to demonstrate standing, nor is it clear who else would have standing to challenge the OPM policy.  As a general matter, individuals do not have standing as taxpayers to challenge allegedly illegal government spending.  So even if one assumes Senator Johnson is correct on the law, this question might not get resolved in federal court.

UPDATE: For those interested, here’s Nicholas Bagley’s defense of OPM from this past August.

FURTHER UPDATE: Senator Johnson’s complaint and supporting documents are available here.

THIRD UPDATE: Nicholas Bagley has a new post on this suit here.