This weekend, Senator Ron Johnson of Wisconsin announced that he’s suing the Obama administration over its refusal to strip members of Congress and their staffers of federal contributions toward their health insurance. He’s even hired superlawyer and former solicitor general Paul Clement, who led the litigation team that challenged the constitutionality of the ACA at the Supreme Court.
But I don’t think the lawsuit is going anywhere. Johnson’s claim rests on the ACA’s requirement that members of Congress and their staffers must secure health insurance through the exchanges. For Johnson, that means that members and staffers are eligible only for the same income-based subsidy available to regular folk who go on the exchanges. Employer contributions to members and staffers for health insurance are, on this view, verboten. The administration’s rule purporting to allow such contributions is therefore unlawful.
I’ve written here and here about why I don’t think the objections to the “Hill fix” are convincing. But there’s another reason to wonder about the viability of Johnson’s lawsuit. Does he even have standing to bring it? (Jonathan Adler flagged the same question over at the Volokh Conspiracy.)
Senator or not, Johnson can’t sue just because he thinks that the administration has broken the law. Johnson has to demonstrate that the administration’s rule has caused him a “concrete and particularized” injury. That won’t be easy for Johnson to do. After all, his core objection is that the government is giving him and his staffers more money than it should. Getting a windfall from Uncle Sam isn’t exactly an injury.
Wise to this concern, Johnson identifies in his complaint a few different reasons for thinking he might have standing. One is that the administration’s decision harms his “credibility” because it places Johnson in a “privileged position” relative to his constituents. This alleged injury, however, is much too speculative to support Johnson’s standing. Among other things, it rests on the assumption that Johnson’s constituents believe he’s somehow responsible for the purportedly unfair treatment. Why would anyone believe that? Johnson ran for office in 2010—and won—on a stridently anti-ACA platform. The adoption of an unpalatable, unfair, and unlawful Obamacare rule is at least as likely to enhance his credibility as detract from it.
Johnson also argues that he’s been made “complicit” in unlawful conduct. Specifically, Johnson thinks that the ACA prohibits the government from allowing him to purchase group insurance from a small-business exchange. But Johnson doesn’t seem to believe that the plans he’s eligible to purchase are worse than the plans he might have otherwise purchased. Instead, Johnson’s adherence to the rule “injures” him only because he thinks the rule is unlawful. That sort of abstract objection to government illegality won’t cut it.
Finally, Johnson raises a gripe about paperwork. The ACA sends to the exchanges those staffers who are “full-time and part-time employees employed by the official office of a Member of Congress.” Some staffers, however, serve as part of a member’s personal staff or for various committees, not as part of the “official office.” The Obama administration has tasked individual members—including Johnson—with deciding who counts as an official-office staffer.
Johnson doesn’t want that job and, odd as it may seem, that may be enough. On occasion, the courts have upheld standing because of government-imposed administrative burdens (although I’m unfamiliar with any case upholding standing where the burden is as trivial as it is here). Still, Johnson’s lawsuit has a big problem. If he’s complaining about annoying paperwork, he’s only got standing to challenge the rule requiring him to do that paperwork. I don’t see why he’d also have standing to challenge other rules that that have nothing to do with identifying official-office staffers—including the rule allowing the federal government to keep contributing to the health insurance of members and staffers.
In short, I’m skeptical that Johnson’s lawsuit will get off the ground. Even if it does, however, it doesn’t pose a deep threat to the ACA. A judgment in Johnson’s favor would result in a big pay cut for several hundred members of Congress and a few thousand of their staffers and families. That’d be tough on them and could lead to a real brain drain on Capitol Hill. (Just imagine the awkward staff meeting. “So I’ve got some good news and some bad news.”) But no matter what happens in the litigation, the beating heart of the ACA—the coverage expansion affecting millions—will remain intact.