An appeals court Tuesday ruled that Republican Sen. Ron Johnson lacks legal standing to challenge the Obama administration's rule that members of Congress and their staffers seeking health coverage must get it through the District of Columbia small-business exchange.
A panel of the 7th U.S. Circuit Court of Appeals affirmed a lower court's ruling in deciding that the Wisconsin senator and his co-plaintiff can't claim they've been hurt by the requirement.
Under a provision originally proposed by Sen. Chuck Grassley (R-Iowa), the Affordable Care Act requires member of Congress and their staffers to get their federal job coverage through the insurance exchanges established by the law. The Office of Personnel Management issued a rule saying they should get their coverage through the Small Business Health Options Program exchange, making it possible for them to receive a contribution to their premium from the federal government as their employer.
Some congressional Republicans have opposed having to get their coverage through the exchange instead of the Federal Employees Health Benefits Program, and some have objected to members of Congress receiving a federal premium contribution for their exchange coverage. Members of Congress and their staffers can opt out of receiving government coverage if they want to obtain insurance at their own expense or through their spouse or partner.
Johnson argued that the rule imposed an administrative burden on him and his staff, that it deprived them of their constitutional right to equal treatment, and that it hurt his reputation and electability by requiring him to participate in an Affordable Care Act program he considers illegal.
But the 7th Circuit ruled that Johnson and his co-plaintiff were not harmed by the rule and lacked standing to sue. “Respectfully, we do not see how Sen. Johnson's reputation could be sullied or his electability diminished by being offered, against his will, a benefit that he then decided to refuse,” the panel said in an opinion written by Judge Joel Flaum.
Johnson said in a written statement Tuesday that he and his legal team will review the decision before deciding what to do next. He could, for example, ask for a re-hearing before a full panel of the circuit court's judges or he could take the case to the U.S. Supreme Court. He called the decision “unfortunate.”
“For the second time, my attempt to restore the constitutional balance between the executive and legislative co-equal branches of government has been stymied by the courts,” Johnson said. “With this decision today, another executive action by the administration will go unchallenged, all based on the legal technicality of standing.”
The three judges who decided the case Tuesday include Flaum, William Bauer and Ann Claire Williams. Flaum and Bauer were appointed by Republican presidents, while Williams was appointed by a Democrat.
Johnson's case is not the only one brought by a member of Congress over the ACA. House Republicans filed a lawsuit in November contesting President Barack Obama's decision, without congressional approval, to waive the law's employer mandate and the penalties for failing to comply with it. That lawsuit also argues that the administration is illegally using funds from a separate Treasury Department account meant for other purposes to pay insurance companies under the so-called cost-sharing portion of the law. Under that provision, the government pays part of the out-of-pocket costs for low-income members of ACA exchange plans to limit their spending.
Some experts have speculated that lawmakers might face questions of standing in that case as well, particularly whether they were harmed by the administration's actions.
That case is ongoing in the U.S. District Court for the District of Columbia.
