New Attack on Obamacare from Senator

GREEN BAY, Wisc. (CN) - In the latest challenge to Obamacare, a U.S. senator from Wisconsin claims the law unconstitutionally treats Congressmen and their staffs better than the public at large, nonsensically calling Congress a "small business" and "driving a wedge" between lawmakers and their constituents.

Sen. Ron Johnson, a Republican, sued the U.S. Office of Personnel Management in Federal Court. Johnson's legislative counsel Brooke Ericson also is a plaintiff.

Johnson claims the Affordable Care Act is "driving a wedge" between members of Congress and their constituents by putting Congress and staffers "in a better position" by allowing the federal government to keep paying part of the costs of their health insurance.

Johnson claims the Obama administration exceeded its legal authority when the Office of Personnel Management ruled last year that the government could continue to make employer contributions to members of Congress and theirs staffs - even when they purchase coverage through the new Obamacare online exchanges. Johnson claims that Section 1312(d)(3)(D) of the Affordable Care Act (ACA) was passed so that members of Congress and their staffs would be subject to the ACA in the same way as members' constituents.

Johnson claims the OPM rule is harming his "credibility and relationships with his constituents." He claims it places him and other members of Congress and their staffs "in a privileged position." He claims this "drives a wedge between Senator Johnson and his constituents and is exactly the opposite of what was intended when Congress passed Section 1312(d)(3)(D) of the ACA."

Johnson claims he has "suffered a legal wrong" as a result of the OPM rule. He claims that federal funding of a portion of his staffers' health insurance is not authorized by the Affordable Care Act.

The health plans offered through the exchanges are not OPM-negotiated large group health insurance plans, which are the only kind that may be offered to federal employees through the Federal Employees Health Benefits Program (FEHBP), according to the lawsuit.

Also, Johnson claims, the federal government does not meet the definition of a small business and so is not eligible to participate in a Small Business Health Options Program (SHOP) Exchange through the ACA.

Finally, he says, the OPM rule violates the Equal Protection Clause of the Constitution in that it treats members of Congress and their staffs differently than other similarly situated employees who obtain insurance coverage under the ACA.

For these reasons, Johnson says, the rule "is unlawful and defeats the will and intent of Congress as expressed in the ACA and the statute under which OPM administers the FEHBP." (Federal Employees Health Benefits Program.)

In summary, Johnson claims, the Office of Personnel Management is forcing him "to be complicit in conduct which they believe violates federal law, including; (1) permitting the government to join and members of Congress and their staffs to obtain group health insurance through a SHOP Exchange - an insurance exchange that by the specific terms of the ACA cannot be made available to large businesses like the federal government, (2) permitting the federal government to provide group health insurance to members of Congress and their staffs who by law are required to obtain their health insurance on an ACA exchange in which they are eligible to participate, and (3) attempting to accomplish by rule, and without sufficient notice and comment, a result that is inconsistent with federal statutes."

Johnson claims members of Congress and their staffs "are facing the same problems that confront millions of their fellow citizens: having to buy exchange-approved individual or family health insurance policies that do not meet their needs and are more expensive than what was available to them prior to the ACA."

In a press conference in Washington this week, Johnson said he filed the lawsuit because it is "a basic issue of fairness." He said he hopes the lawsuit will provide "a very long overdue check on presidential power ... particularly with this administration."

Johnson seeks declaratory judgment and an injunction.

He is represented by Richard Esenberg with the Wisconsin Institute for Law & Liberty, of Milwaukee.

The Milwaukee Journal-Sentinel reported that Johnson's lawsuit stirred already boiling rifts within the Republican Party on how to fight the Obama administration.

Johnson, a first-termer, was a plastics and polyester magnate before he was elected.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit