A Wisconsin senator on Monday argued that his lawsuit challenging rules that call for congressional members and their employees to seek government-subsidized health insurance through small-business exchanges should be allowed to move forward.
U.S. Sen. Ron Johnson, an Oshkosh Republican, contends the rules twist the Affordable Care Act to ensure senators, representatives and their staffers continue to receive generous health insurance subsidies and place them above the American people. Government attorneys contend Johnson lacks standing to sue because he hasn't shown how the rules have hurt him or his health care coverage. They have asked U.S. District Judge William Griesbach to dismiss the lawsuit.
Republicans tucked provisions into the Affordable Care Act that state the only health care plans the federal government can offer to congressional members and staffers must come through an exchange. The mandate means senators, representatives and their employees must leave their old government health plan, which subsidized 75 percent of their premiums through tax-free contributions.
President Barack Obama's administration adopted rules in October preserving the subsidies if congressional members and staffers go through the small-business exchanges. The rules state the members must decide which staffers are eligible for the exchanges.
Johnson's lawsuit takes issue with the subsidies and with his staffers getting their insurance through the small-business exchanges.
"Congress wanted to make sure we were in the same position as any American," Johnson told reporters before Monday's court hearing. "No special treatment. (But) there's a perception Congress is getting special treatment."
Johnson's attorney, Rick Esenberg, argued during the hearing that the rules have inflicted multiple injuries on Johnson. He must participate in what he considers to be an illegal scheme to use small-business exchanges even though members and staff work for a huge employer in the federal government, Esenberg said. And he faces the perception that Congress is above regular people who can't get such generous subsidies through the exchanges, Esenberg said.
"Sen. Johnson clearly has standing," Esenberg said. "This is a case that affects the way in which he runs his office and the way he must explain to his constituents about the way he runs the office.
U.S. Justice Department attorney James Luh renewed his argument that Johnson can't sue because he hasn't shown how the rules have caused him any real injury.
"Here, your honor, the plaintiffs haven't shown any adverse consequences will flow to them," Luh said.
Griesbach let the attorneys spar for about an hour and 15 minutes before adjourning. It was unclear when he might rule.
Republicans have accused Obama's administration of unilaterally changing the ACA to get around their provision. Johnson maintains in his lawsuit that senators, representatives and their employees aren't eligible for small-business exchanges because they work for a government that employs millions. He also argues the premium subsidies that congressional members and staffers receive will foster resentment among his constituents and deciding which staffers should go through the exchanges is a burden.
Luh stressed to Griesbach that Johnson isn't suffering any harm. He insisted Johnson doesn't have to accept any benefits through the exchanges. He also said the Senate and House administrative offices can decide which staffers can go through them, meaning Johnson doesn't have to do anything.
Esenberg argued if Johnson doesn't designate the staffers he's shirking his responsibility because the staffers then would have to purchase insurance on their own.
Griesbach questioned why Johnson doesn't just do that. Esenberg said Johnson has no choice but to enforce the ACA and the rules as best he can.
Johnson told reporters after the hearing he has since purchased private insurance for himself outside the exchanges and he has designated "a majority" of his 40 or so staffers to go through the small-business exchanges. He railed against Obama, saying he's acting like a king.