Senator to sue over congressional Obamacare subsidies

The controversial decision by the Office of Personnel Management (OPM) that allows members of Congress and their staffers to keep generous subsidies for Obamacare is headed to court, via Politico:

Sen. Ron Johnson plans to file a lawsuit Monday against the Office of Personnel Management over its policy permitting lawmakers and Hill staff to receive Obamacare subsidies for their health plans.

The Wisconsin Republican and other opponents of the policy say that the OPM decision to allow the government to fund a portion of members’ and staffers’ health insurance is not authorized in the text of the Affordable Care Act.

Johnson has scheduled a news conference for 12:15 p.m. Monday on Capital Hill to discuss the suit. He will appear with Paul Clement, a high-profile attorney and former U.S. solicitor general who represented 26 states in their lawsuit against Obamacare’s individual mandate. Clement, an appellate lawyer, is supporting Johnson for possible appeals. Rick Esenberg, founder and president of the Wisconsin Institute for Law & Liberty, will be his lead attorney.

The ObamaCare fix — or “exemption” — has been a hot button issue in Washington. Sen. Chuck Grassley (R-IA) pushed an amendment during the debate over Obamacare that required members of Congress and staffers to enroll in a health plan on the exchanges.

Fearing “brain drain” on the Hill due to increase healthcare costs, congressional leaders from both parties and President Obama lobbied OPM to continue the 75% employer contribution that had been in place before ObamaCare rather than have to pay the difference out-of-pocket. That generous subsidy is more than most available through the exchanges.

Despite the clear requirement in the law, administrative officers in both chambers have provided members with the ability to exempt staffers from having to enroll in health plans on the Obamacare exchanges. Senate Majority Leader Harry Reid (D-NV), for example, has exempted some of his staffers from the requirement.

Some Republicans, led by Sen. David Vitter (R-LA), fought hard to undo the OPM ruling in Continuing Resolution negotiations leading up to and during the government shutdown, but have been unsuccessful.

Politico notes that Johnson will have to prove injury to have standing to challenge the OPM ruling in court:

Johnson will first have to prove that he is being hurt by the policy and so has standing to sue. An aide told POLITICO on Sunday that the senator will argue that the policy forces him to comply with a rule that he believes is illegal. He also believes the policy harms his relationship with constituents because it gives him and other congressional employees special treatment through government subsidies regardless of income levels.

Finally, the aide said, Johnson will contend that OPM’s decision created an administrative burden in forcing him to determine which staff qualified as “official” office employees who were required to seek health coverage through one of the new Obamacare exchanges. (Unofficial employees could stay on the federal health plan.)

It’s worth noting that not everyone agrees with Johnson, despite the fact that the exemption gives the impression that members of Congress don’t have to comply with the laws they pass. Grassley, who pushed the amendment requiring Congress to participate in the exchanges, backed the OPM ruling and has disputed any notion that it was out of step with the law.

Rep. James Sensenbrenner (R-WI) publicly admonished Johnson over the issue, calling the lawsuit “an unfortunate political stunt” and “frivolous.”

“Success in the suit will mean that Congress will lose some of its best staff and will be staffed primarily by recent college graduates who are still on their parents’ insurance,” said Sensenbrenner in a statement. “This will make it even more difficult to fight the President and his older, more experienced staff.”

In response to those comments, Johnson said that “Americans are justifiably outraged when members of Congress exempt themselves from the very laws they impose on everyone else, adding that “[t]his is an issue of basic fairness.”

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