Say goodbye to the lawsuit challenging the Hill fix

The Seventh Circuit yesterday released an opinion dismissing a lawsuit, brought by Senator Ron Johnson and his legislative counsel, challenging yet another aspect of the Affordable Care Act’s implementation. Good riddance, I say.

The case involves an ACA requirement that members of Congress and their staff secure health coverage through one of the new exchanges. To implement that provision, the Obama administration decided that members and their staff—most of whom don’t make a ton of money—would be eligible for subsidies to help defray the cost of new exchange plans. The federal rule implementing that decision has become known as the “Hill fix.” Senator Johnson and his counsel think it’s unlawful. (I don’t.)

I was skeptical of the lawsuit from the moment it was filed. The most pressing problem was standing: how could Johnson and his counsel claim to be injured by a federal rule that offered subsidies to them? “Getting a windfall from Uncle Sam,” I wrote at the time, “isn’t exactly an injury.”

That’s basically what the Seventh Circuit held. Johnson and his counsel advanced three arguments in support of their standing, none of which the court found persuasive. First, the plaintiffs said that they didn’t want to shoulder the administrative burden of separating those staffers who had to go on the exchange from those who, under the ACA, could retain their employer-sponsored coverage. But the Seventh Circuit rightly held that, “even if the Rule does place an administrative burden on plaintiffs, that does not give them standing to challenge the aspects of the Rule that they allege are illegal, which are unrelated to the imposition of an administrative burden.”

Second, Johnson argued that the rule violated his right, under the ACA, to be treated the same as his constituents. The Seventh Circuit couldn’t quite make head or tail of this argument: the plaintiffs “do not make clear which groups are to be treated equally or what ‘equal treatment’ would even mean in this context.” At any rate, the court reasoned, the ACA doesn’t create any right to equal treatment. To contrary, the statute treats members of Congress as a distinct and unusual group, cutting hard into the view that they have a right to complete equality with anyone.

Third, Johnson said he will suffer reputational and electoral harms arising from the “special treatment” that his constituents see him getting. It’s a peculiar claim: the whole point of requiring members of Congress to go on the exchanges was to avoid claims of unfair treatment. In any event, the Seventh Circuit found this alleged injury too ephemeral to support standing. “Respectfully, we do not see how Senator Johnson’s reputation could be sullied or his electability diminished by being offered, against his will, a benefit that he then decided to refuse.”

Nothing in the Seventh Circuit’s analysis should come as a surprise; indeed, the decision closely tracks arguments I offered last year. There’s one interesting wrinkle, however. The D.C. Circuit, in a 1994 case involving Representative John Boehner, upheld standing on a reputational-electoral theory similar to the one that Johnson has advanced in this lawsuit. Although the Seventh Circuit tried to distinguish the D.C. Circuit decision, it also noted explicitly that it was “parting from the D.C. Circuit’s analysis in Boehner.”

Arguably, then, the Seventh Circuit’s decision creates a very minor circuit split on a narrow question involving the standing of members of Congress. That shallow split is not, in my judgment, substantial enough to warrant Supreme Court review. When it comes to the ACA, though, all bets are off.


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