Sen. Ron Johnson, R-Wis., filed the suit in January.

Sen. Ron Johnson, R-Wis., filed the suit in January. J. Scott Applewhite/AP

The Government Can Keep Subsidizing Hill Staff's Obamacare--For Now

Judge throws out a lawsuit against the rule allowing subsidies to continue.

A federal judge on Monday dismissed a Republican senator’s lawsuit against the Obama administration, which challenged its decision to continue subsidizing the health care of lawmakers and congressional staff under the 2010 Affordable Care Act.

Judge William Griesbach of the U.S. District Court, Eastern District of Wisconsin, threw out the case because the administration’s regulation in question does not amount to a concrete injury against the plaintiffs, Wisconsin Republican Sen. Ron Johnson and his legislative counsel, Brooke Ericson. Griesbach ruled that absent such a concrete injury, “for the judiciary to intervene under these circumstances would violate the same principle plaintiffs seek to vindicate in their own lawsuit with far less opportunity for correction by either the other branches or the people.”

At the heart of the lawsuit is an August 2013 draft rule issued by the Office of Personnel Management clarifying that the federal government would continue to contribute to the health plans of congressional staff and lawmakers under Obamacare. The amount of the government’s, or in this case the employer’s, contribution under the health insurance exchanges would not exceed the amount those employees received under the Federal Employees Health Benefits Program, OPM said last summer. FEHBP, which OPM administers, covers 8.2 million federal employees, retirees and their dependents and pays up to 75 percent of the health care plan’s premium costs.

The 2010 Affordable Care Act required lawmakers and congressional aides in personal offices to drop their FEHBP insurance coverage as of Oct. 1, 2013, and enter the newly created exchange market. The August 2013 OPM rule stated that like private-sector employees, affected lawmakers and congressional staff would not lose their employer contributions for these health plans. Before OPM weighed in on how that provision of the law should be interpreted, Capitol Hill had worried that the shift from FEHBP to the health care insurance exchanges under Obamacare would be too expensive for many lawmakers and aides, making it difficult to retain employees.

Johnson sued OPM in January over its interpretation of the Obamacare provision, claiming the administration acted illegally giving what amounts to “special treatment” to legislative branch employees and lawmakers. “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,” Johnson wrote in a Jan. 5 op-ed in The Wall Street Journal, criticizing the rule. Forty-five Republican lawmakers submitted a friend of the court brief supporting Johnson’s lawsuit.

Griesback dismissed the plaintiffs’ claims that OPM’s rule places an administrative burden on Johnson because he would have to determine annually who are “congressional staff” within the regulation, that it forces the senator to engage in conduct he believes harms his credibility with voters, and that it violates equal protection under the law.

Griesbach also rejected the plaintiffs’ argument that without the courts stepping in to remedy the situation, the Obama administration will continue to ignore laws Congress has passed or exceed its authority. “It is not true that the courts are the only remedy for the administration’s alleged unlawfulness,” the ruling stated. “The Congress itself is surely not helpless to rein in the executive: it has spending authority, investigative powers, and it even wields the blunt instrument of impeachment; it has the power to pass, delay, or kill initiatives the executive branch might propose; and it may delay or thwart consideration of executive branch nominees.”

Johnson, who can appeal the decision, said he is reviewing it with his legal team to determine his next step. “I believe that this executive action by the Obama administration is unlawful and unfair, and that it is only one of many examples of this president’s abuse of his constitutional duty,” he said in a statement. “Unfortunately, those actions will go unchallenged for now, because the district court granted the administration's motion to dismiss based on the legal technicality of standing.”

Separately on Tuesday, two federal appeals courts handed down contradictory rulings regarding tax credits under Obamacare. Under OPM’s 2013 rule, affected congressional employees and lawmakers do not qualify for premium tax credits under Obamacare.