Senator Ron Johnson (R–WI) announced a lawsuit today challenging the Office of Personnel Management’s (OPM) illegal special treatment of Members of Congress and their staffs. Heritage laid the groundwork for this hugely important lawsuit.
As it became clear that Members of Congress and their staffs would be forced to pay for their own health insurance on the Obamacare exchanges, the White House got worried. So worried, apparently, that the President became “personally involved in finding a solution.” OPM issued a rule that flatly contradicts the law, purportedly allowing payments to the Federal Employee Health Benefits Program that was largely repealed by Obamacare. And, as we have written before, this was a lawsuit waiting to happen.
Simply put: Due to the 2009 death of Senator Ted Kennedy (D–MA) and his replacement with Senator Scott Brown (R–MA), the President and his allies were unable to fix the Obamacare bill that eventually passed. One piece that they surely would have eliminated if they had the chance was a provision championed by Senators Charles Grassley (R–IA) and Tom Coburn (R–OK). If Obamacare is good enough for the American people, they reasoned, it is good enough for Congress. The result is that Section 1312(d)(3)(D) of Obamacare reads:
Notwithstanding any other provision of law…the only health plans that the Federal Government may make available to Members of Congress and congressional staff…shall be health plans that are…created under this Act…or…offered through an Exchange established under this Act.
In spite of this clear language, OPM has essentially declared that Members of Congress and their staff will not have to drink the bitter medicine of Obamacare. And some principled Members of Congress have spoken out, even though it will hurt their personal pocketbooks.
Now, Senator Johnson is suing to stop this illegal scheme. While the law is clearly on his side, there is a difficulty: Federal courts can rule only in cases where someone is hurt—an Article III constitutional requirement called “standing.” The bottom line is that illegal handouts by the executive branch are very difficult to stop: If you’re getting free money, why are you suing? And the Supreme Court has noted that taxpayers cannot sue simply because they are taxpayers. But if this hurdle is passed, the lawsuit will be a slam dunk, yet another blow to a law with many legal problems, and another blow to a presidency that has shown time and again that it has no qualms about ignoring laws it doesn’t like, including by bypassing Congress.
Congress could easily stop the lawsuit by amending Obamacare and honestly providing handouts, or it could follow Senator David Vitter’s (R–LA) proposal to make even more clear that the handouts are illegal. Of course, the President threatened to veto such proposals. Any amendment to Obamacare would prove that the beast is mortal, opening the door to other amendments or even outright repeal. The White House decided to issue a purported rule that simply breaks the law. This may come back to haunt it.