Ron Johnson’s Frivolous Obamacare Lawsuit
It is not constitutionally proper or practical for a legislator to sue the president over a public-policy dispute.

Sen. Ron Johnson


Andrew C. McCarthy

Back in October, Ron Johnson of Wisconsin slammed his fellow Republican senator Ted Cruz of Texas for what he portrayed as Cruz’s flawed strategy of attempting to defund Obamacare. But it soon became painfully apparent that Johnson had no strategy of his own to mount any meaningful opposition to the law. He had no answers, and barely a coherent thought, when grilled on the matter by Mark Levin. Now, as reported Monday in Alec Torres’s post and outlined in the senator’s own Wall Street Journal op-ed, Johnson has decided that filing a lawsuit is the way to go. . . . thereby demonstrating that he still has no serious strategy — other than to engage in the very sort of grandstanding the Republican establishment accused Cruz of.

Johnson says he will file a complaint in Wisconsin federal court. The point, apparently, is to try to have a judge affirm that it is illegal for President Obama to exempt members of Congress and their staffs from the full financial burden of purchasing insurance through an Obamacare “exchange.”


The senator is right when he says the risibly entitled Patient Protection and Affordable Care Act (PPACA) does not permit this — just as it does not permit various other exemptions, waivers, and actions our would-be emperor-in-chief deems himself empowered to order.

The PPACA provides that people who earn salaries above a certain threshold are not eligible for taxpayer subsidies to defray the cost of health insurance purchased on the new exchanges. It also requires members of Congress and their staffs to obtain insurance through the exchanges. Previously, those members and staffers were covered under the Federal Employees Health Benefits Program (FEHBP), under which taxpayers picked up the tab for nearly three-quarters of their premiums. Federal law enabled this cushy arrangement only for the FEHBP; if Congress wanted to similarly subsidize its own exchange-purchased policies, it needed to write a law saying so.

With Obamacare, Congress failed to do that. As John Fund notes, the resulting loss of premium support would amount to an annual pay cut of between $5,000 and $11,000 per annum for members and staffers (depending on whether they had individual or family coverage under FEHBP). That is, congressmen and their staffs would be experiencing the same pain Obamacare is inflicting on everyone else. But facing mutiny — and realizing that if enough Democrats revolt, Obamacare could be massively amended or repealed — President Obama came to the rescue. His White House Office of Management and Budget purported to “interpret” the PPACA to allow the subsidies to continue. In effect, Obama rewrote Obamacare to spare lawmakers and their staffs.

All that said, however, it is no more constitutionally proper or practical for a legislator to sue the president over a public-policy dispute than for the president to violate valid laws. As I’ve observed before (most recently, here), the Framers gave Congress two tools to rein in a lawless chief executive: the power to cut off funding and the impeachment power. These tools are powerful, but they have serious political ramifications, and thus elected officials shy away from using them. But they are the only tools available, and politicians cannot forever evade accountability. After all, not using these powers has ramifications too, such as encouraging rampant presidential lawlessness.

That puts Beltway pols in a bind: They cannot afford to be seen as doing nothing about Washington self-dealing, but they lack the fortitude to take serious constitutional action. So they get creative when it comes to otiose stunts that give the illusion of action: e.g., parliamentary gimmicks that allow them to appear to oppose bad legislation while ensuring that it passes; resolutions that “censure” or hold “in contempt” lawless officials they lack the nerve to impeach; and, on occasion, big-wind, no-rain lawsuits.

The latter species of gamesmanship is not in Congress’s constitutional arsenal precisely because political accountability is the foundation of representative self-government. Public-policy matters — such as, who should be entitled to subsidies in a convoluted central-planning scheme — must be decided by elected officials who answer to the voters, not by politically unaccountable judges. In the absence of some constitutional defect (and there is nothing inherently unconstitutional about the political class’s inveterate practice of insulating itself from the effects of the crummy laws it enacts), the “political question” doctrine requires courts to butt out. The reasons for this are practical as well as legal.

Courts have no power to enforce their rulings. They are completely dependent on the executive branch to see that their writs are obeyed. If a court were foolish enough to entertain Senator Johnson’s lawsuit, what would happen if it ruled in his favor? Presumably (and presumptuously), the court would direct the president to enforce its ruling against . . . the president. Good luck with that. President Obama does not just flout statutes that impede his agenda; he ignores and undermines court decisions, too (see, e.g., here, here, here, here, and here). He’s an equal-opportunity outlaw.

The political-question doctrine ensures that public-policy controversies are settled politically — ultimately at the ballot box. That is as it should be. Unlike the judiciary, Congress has real power to stop the president’s Obamacare malfeasance. Lawmakers need not content themselves with ineffectually declaring subsidies illegal; they can actually cut off the public funding that pays for the subsidies.

Senator Johnson claims that this constitutional response is unavailing because Democratic majority leader Harry Reid won’t allow such legislation to come to the floor. That, however, is a political problem, not a legal one. Reid is using the muscle that Senate rules give the majority. It is up to Republicans to do a competent job of spotlighting the subsidy scandal and forcing Reid’s hand. Johnson and Republicans have innumerable ways of gumming up the legislative works to retaliate for Reid’s obstinacy and put Democrats in the politically dicey position of defending Washington privilege. But legislative losers do not get to use the courthouse to refight their Capitol Hill defeats.