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Ron Johnson’s Obamacare Lawsuit Isn’t ‘Frivolous’
A response to Andrew McCarthy


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Earlier this week, I and my colleagues at the Wisconsin Institute for Law & Liberty filed a lawsuit on behalf of Senator Ron Johnson, challenging an Obama administration rule allowing members of Congress and their staffs to receive tax-free premium subsidies on an Obamacare exchange. Andrew McCarthy, while conceding we are right on the merits — that the rule is unlawful — thinks our case is “frivolous” because it is either a non-justiciable political question or because the senator lacks standing.

I have generally admired Mr. McCarthy’s work, but, if anything is “frivolous,” it is the suggestion that this case presents only a non-justiciable political question. That doctrine generally precludes judicial consideration of questions for which there are no judicially ascertainable standards or which are clearly committed to one branch of the government. Our case presents a rather straightforward question of whether an administrative rule is consistent with the Affordable Care Act.  Administrative rules are frequently challenged as being inconsistent with the controlling statutes, and it is the province of the courts to say what the law is.  And there are judicially manageable standards that make clear that Office of Personnel Management’s action is unlawful.  Indeed, the very fact that McCarthy concedes we are right on the merits underscores that there is law to apply here and we are correct.

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McCarthy objects that, should we win, all we would obtain is an order “direct[ing] the president to enforce its ruling against . . . the president,” as if this is an unheard of and obviously futile gesture. But it is not at all unusual for aggrieved parties to sue to have executive actions declared unlawful or for courts to order the executive branch to conform its conduct to the law.  No one, including McCarthy, suggests the Supreme Court challenge to the president’s unlawful recess appointments is a waste of time because the president, in theory, could ignore the Court’s ruling. Presidents who lose almost always comply, and while I agree that this administration seems to regard itself as uniquely unconstrained by anything as quotidian as “law,” McCarthy’s assumption that it would play the scofflaw here is, at best, premature.

So the real objection is not whom we have sued or what we have sued about, but whether Senator Johnson has standing to bring the case. McCarthy assumes that the senator is simply a “legislative loser” attempting to use the courthouse to “refight Capitol Hill defeats.” While that may describe the typical legislative standing case, it gets this case exactly backwards. The position that Senator Johnson seeks to enforce was enacted by Congress, not rejected. The idea that members and staffs should have to obtain insurance in Obamacare exchanges — with all the attendant costs and frustrations — won. This is not an attempt to refight an unsuccessful battle, but to enforce a law that was duly enacted.

Nor does Senator Johnson claim that he has standing simply because he is a legislator and the administration has failed to act in accordance with the law. He is not, as McCarthy puts it, merely seeking “to rein in a lawless chief executive.” To the contrary, he is challenging a rule which affects him and injures him distinctly in his capacity as a United States senator. Just as the D.C. Circuit found that Representative John Boehner had standing to challenge an allegedly unconstitutional congressional pay raise because it directly determined his rate of pay and harmed his relationship with constituents, Senator Johnson has standing to challenge a rule that drives a wedge between him and his constituents in a way that Congress explicitly sought to avoid in requiring that members and their staffs would be limited to ACA exchanges.

In addition, Senator Johnson, as well as other members, had to shoulder an administrative burden in designating which staffers are entitled to enjoy the OPM’s exemption. This administrative burden is a concrete injury that is not imposed on taxpayers generally and is similar to that found by the eleventh and fourth circuits to confer standing upon the State of Oklahoma and Liberty University to challenge the ACA’s employer mandate, notwithstanding that both the state and the school intended to provide insurance coverage that would comply with the law.

At bottom, McCarthy’s difference with us is one of strategy. He’d prefer that our client not attempt to vindicate the rule of law in court but limit himself to attempts to repeal or defund Obamacare. I’m happy to report that the main reason Senator Johnson sought office was to be the vote to repeal Obamacare — he’s fully on board with that goal. But there is no rule of “either/or” here. While the OPM rule may not be the worst bit of lawlessness associated with the rollout of Obamacare, it is the one that Senator Johnson and his staff have standing to challenge.

And that is precisely what we are going to do.

— Rick Esenberg is president and general counsel of the Wisconsin Institute for Law & Liberty and counsel for the plaintiffs in Johnson v. U.S. Office of Personnel Management.



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