January 9, 2014
However, instead of challenging the validity of the health care reform, this latest suit seeks to enforce the provisions of the law. Yes, you read that correctly: a conservative – a Republican senator, no less – has filed a lawsuit because he wants to see Obamacare enforced by a court of law.
Of course, it’s worth noting that this Republican, Senator Ron Johnson of Wisconsin, is suing the Obama administration in seeking the judicial enforcement of the ACA.
How could the Obama administration, the supposed architect of the 2010 health care overhaul, possibly be subject to a lawsuit for not properly enforcing Obamacare?
Well, whether the Obama administration could actually be subject to this lawsuit will be discussed later, but the events at the center of this legal action involve measures taken by the U.S. Office of Personnel Management (OPM) from August through October of 2013.
On August 7, 2013, OPM proposed a rule that would provide premium support subsidies to members of Congress and their staff who were to purchase insurance coverage on individual exchanges. In case you were unaware, the ACA contains a provision that requires members of Congress to obtain individual (or family) health insurance through an ACA Exchange. In other words, the ACA halted the previous health insurance plans of members of Congress, instead requiring them to obtain health insurance through exchanges – just the same as any other American who didn’t have employer-provided health insurance.
This change, which was codified into a final rule on October 2, 2013, effectively nullified the change that the ACA was supposed to bring to the health insurance coverage of members of Congress and their staffers.
But according to Senator Johnson’s lawsuit, OPM did this in direct circumvention of the law.
First, it directed government subsidies to be paid to any member of Congress who purchased insurance coverage through the ACA exchanges (although said members have the option of declining the subsidies). These subsidies may be paid regardless of the insured’s income (for everyone else, the size of one’s subsidy is dependent on income).
Second, it established that members of Congress may access a SHOP (“Small Business Health Options Program”) Exchange, which offers financial benefits over the individual exchanges available to everyone else. SHOP exchanges are to be used by employers with no more than 100 employees, and that employer must cover all of its employees under the selected health plan.
The federal government clearly has more than 100 employees, and there is no requirement that all members of Congress and their staffers obtain a health insurance policy.
So it seems that Senator Johnson is correct in asserting that OPM has ignored the plain text of the law in publishing its rule on the matter.
Whether the courts will be able to handle this conflict, though, is an entirely different matter.
First, it’s quite unlikely that a court would even find that Senator Johnson had standing to bring the suit. An injury is required to establish standing, and Senator Johnson’s alleged injury is that he and his staff “must spend substantial time” to make determinations as to whether his staff is subject to the requirement to use the exchanges. However, the injury (if you can really categorize this as such) is far outweighed by the benefit of highly subsidized health insurance.
On the off chance that Senator Johnson did have standing, the court wouldn’t decide the issue anyhow, since the lawsuit presents a political question – that is, a dispute between other branches of the federal government (besides the judiciary).
In such a circumstance, the court would just tell Senator Johnson that this is a problem that Congress could itself fix by taking any number of actions to which it is empowered, such as appropriate legislation, exercising of its spending power, or impeachment. The court doesn’t want to get involved.
Nonetheless, it’s quite possible (if not likely) that Senator Johnson is well aware of the grim prospects of his lawsuit, and that he is merely seeking to bring public attention to the issue, which would strike the public as another case of Washington self-dealing.
Either way, we’ll be able to witness for ourselves if this lawsuit has any impact on the already embattled public opinion of Obamacare.