I'm Suing Over
ObamaCare Exemptions for Congress
On Monday, Jan. 6, I
am filing suit in the U.S. District Court for the Eastern District of Wisconsin
to make Congress live by the letter of the health-care law it imposed on the
rest of America. By arranging for me and other members of Congress and their staffs
to receive benefits intentionally ruled out by the Patient Protection and Affordable
Care Act, the administration
has exceeded its legal authority.
The president and his
congressional supporters have also broken their promise to the American people
that ObamaCare was going to be so good that they would
participate in it just like everyone else. In truth, many members of Congress
feel entitled to an exemption from the harsh realities of the law they helped
jam down Americans' throats in 2010. Unlike millions of their countrymen who
have lost coverage and must now purchase insurance through an exchange, members
and their staffs will receive an employer contribution to help pay for their
new plans.
It is clear that this
special treatment, via a ruling by the president's Office of Personnel
Management, was deliberately excluded in the law. During the drafting, debate
and passage of ObamaCare, the issue of how the law should affect
members of Congress and their staffs was repeatedly addressed. Even a cursory
reading of the legislative history clearly shows the intent of Congress was to
ensure that members and staff would no longer be eligible for their current
coverage under the Federal Employee Health Benefit Plan.
The law states that as
of Jan. 1, 2014, the only health-insurance plans that members of Congress and
their staffs can be offered by the federal government are plans "created
under" ObamaCare or "offered through an Exchange" established
under ObamaCare.
Furthermore, allowing
the federal government to make an employer contribution to help pay for
insurance coverage was explicitly considered, debated and rejected. In doing
so, Congress established that the only subsidy available to them would be the
same income-based subsidy available to every other eligible American accessing
insurance through an exchange. This was the confidence-building covenant
supporters of the law made to reassure skeptics that ObamaCare would live up to
its billing. They wanted to appear eager to avail themselves of the law's
benefits and be more than willing to subject themselves to the exact same
rules, regulations and requirements as their constituents.
Eager, that is, until
they began to understand what they had actually done to themselves. For
instance, by agreeing to go through an exchange they cut themselves off from
the option of paying for health care with pretax dollars, the way many
Americans will continue to do through employer-supplied plans. That's when they
went running to President Obama for relief. The president supplied it via the
Office of Personnel Management (OPM), which issued a convoluted ruling in
October 2013 that ignores the clear intent and language of the law. After
groping for a pretext, OPM essentially declared the federal government a small
employer—magically qualifying members of Congress for coverage through a Small
Business Health Options Program, exchanges where employers can buy insurance
for their employees.
Neat trick, huh?
Except that in issuing the ruling, OPM exceeded its statutory jurisdiction and
legal authority. In directing OPM to do so, President Obama once again chose
political expediency instead of faithfully executing the law—even one of his
own making. If the president wants to change the law, he needs to come to Congress
to have them change it with legislation, not by presidential fiat or decree.
The legal basis for
our lawsuit (which I will file with a staff member, Brooke Ericson, as the
other plaintiff) includes the fact that the OPM ruling forces me, as a member
of Congress, to engage in activity that I believe violates the law. It also
potentially alienates members of Congress from their constituents, since those
constituents are witnessing members of Congress blatantly giving themselves and
their staff special treatment.
Republicans have tried
to overturn this special treatment with legislation that was passed by the
House on Sept. 29, but blocked in the Senate. Amendments have also been offered
to Senate bills, but Majority Leader Harry Reid refuses to allow a vote on any of them.
I believe that I have
not only legal standing but an obligation to go to court to overturn this
unlawful executive overreach, end the injustice, and provide a long overdue check
on an executive that recognizes fewer and fewer constitutional restraints.
Sen. Johnson is a
Republican from Wisconsin.
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