CHICAGO (CN) - A challenge to Obamacare's implementation that went before the 7th Circuit Wednesday hinges on whether the duty to enforce a law gives legislators standing to sue over it.
The complaint by Sen. Ron Johnson, R-Wis., and his legislative aide, Brooke Ericson, takes aim at an Office of Personnel Management (OPM) requirement for lawmakers and their staffs to obtain health insurance through the Affordable Care Act exchange.
It is the rare case in which a senator claims to be altruistically begging courts to strip him of his "Cadillac benefits" so as not to appear as less of a man of the people before his constituents.
U.S. District Judge William Griesbach threw out the suit in July.
"Any injury traceable to the contested regulation is too speculative and undeveloped to constitute a redressable injury," he said. "Nothing in the challenged regulation requires a member of Congress to do anything at all."
Griesbach also noted that no cases "support the notion that a member's belief about how his constituents might view him would be enough to create standing to sue."
Otherwise, "there would be no principled way to limit access to the courts and the judiciary would become the kind of super-legislature specifically rejected by the Founders," the ruling said.
Speaking for Sen. Johnson today, attorney Paul Clement insisted that his clients "had standing to challenge the OPM rule as an incorrect statement of law."
At issue is whether the regulation imposes an unfair administrative burden on Sen. Johnson and his staff by forcing them to determine who among them are "congressional staff" within the meaning of the regulation.
"This burden is not minimal, and I don't think it can be opted out," Clement said. "It's discretionary. If done conscientiously, it could be substantial."
AS Clement pointed to "ambiguity among committee staff members and people in leadership rules," Judge Ann Claire Williams picked up on the lower court's logic.
"If we go with your reasoning, isn't it possible that any time an official must enforce a regulation, this argument could be made?" she asked
Surprisingly, Clement replied: "I think that'd be the correct ruling. It's the rare executive rule that imposes these kinds of burdens on congressional offices. Even if Sen. Johnson could just do nothing, his entire staff would stay on the old system in violation of the ACA."
Clement also argued that complying with the law endangers the senator's reputation.
"On a superficial level, it seems that Sen. Johnson's staff is being treated better than the act requires, but being treated better than your constituents is a liability raising the specter of 'Cadillac benefits,'" Clement said.
Williams wondered if that "meant that a senator could challenge any law that might harm his reputation," but the argument moved on.
Government attorney Mark Stern claimed that implementing the regulation would not burden Sen. Johnson at all.
"The statute itself creates the distinction between congressional staff and other congressional employees already," Stern said. "OPM did not want to get into the business of telling each individual office how to classify its staff."
"What is the consequence of doing nothing?" Williams asked, noting the plaintiffs' argument that this would unlawfully force them back into the pre-ACA regime.
"The only question is who is staff and who isn't," Stern replied. "This flows from the statute, not the OPM regulation. Nobody's suggesting that Sen. Johnson or his aides are required to purchase any particular insurance."
On rebuttal, Clement disagreed: "It's quite clear that if no designation is required you can stay on the old system. A benefit can give rise to standing. This is not speculative because even offering the option is part and parcel of the injury since this means that the congressperson is being offered benefits not available to their entire staff."
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