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JOHNSON: Congress should stand for equal treatment under Obamacare

Lawmakers must reject alteration of ACA by presidential decree

- - Monday, April 14, 2014

Basic fairness dictates that members of Congress should be fully subject to the laws they impose on the rest of America. To sell a skeptical public on the promised wonders of Obamacare, the then-Democrat-controlled Congress made a big show of forcing members onto Obamacare-created plans.

That was four years ago. Once members realized how harmful Obamacare actually was, Senate Democrats started to panic and went running to President Obama for relief.

Relief came in the form of a special tax treatment available only to them, granted in a manner that exceeded the president's legal and constitutional authority. Under a rule issued by the president's Office of Personnel Management, unlike millions of their countrymen who have lost coverage and must now purchase insurance through an exchange, members and their staffs will now receive an employer contribution to help pay for their new plans.

On Jan. 6, I filed a lawsuit to uphold the rule of law and overturn this special treatment for members of Congress and their staffs.

The Obama administration is working hard to make sure this case does not see its day in court. On March 17, the administration filed its initial response to my lawsuit: a motion to dismiss for lack of standing. Very little was said refuting the substance of my lawsuit.

That is because it is very difficult for the administration to defend this highly political executive action when millions of ordinary Americans are suffering under the full, harsh realities of Obamacare.

To establish standing, I have to demonstrate a specific harm. The challenge is that the real harm is Obamacare itself, and any delay in implementing Obamacare generally reduces that harm. The president must recognize this, since instead of implementing Obamacare in accordance with the statute, the executive branch has treated the act as an open-ended grant of authority to unilaterally alter an unworkable, partisan law.

According to the administration, Obamacare has five major pillars: a set of insurance regulations, the employer mandate, the individual mandate, the use of subsidies to encourage the purchase of insurance through state-run exchanges, and an expansion of state obligations under Medicaid.

Through the more than 21 changes to Obamacare by presidential fiat, these pillars have been significantly undermined: Insurance companies can continue selling insurance policies that by the Department of Health and Human Resource's own admission violate the plain terms of the law, the employer mandate has been extended, the individual mandate does not apply to those who consider Obamacare policies unaffordable, subsidies are available for federal exchanges and private policies rather than just state exchanges, and the Medicaid maintenance-of-effort provision has expired for all states.

Of course, our health care system isn't the only part of our economy to fall victim to executive overreach. Prior to his State of the Union address in January, the president reminded us all that if Congress fails to bend to his regal will, "I've got a pen, and I've got a phone." That same month a federal court ruled that the president's attempt to fill vacancies in the National Labor Relations Board and the Consumer Financial Protection Bureau during a so-called congressional recess violated the Constitution.

The president's executive and administrative agencies across the board have drastically increased the size and scope of the executive branch. The National Labor Relations Board's ambush-election rules dramatically change the process for union-representation elections, shortening election time frames. The Internal Revenue Service has been caught targeting ordinary Americans. The Environmental Protection Agency is pushing regulations against coal, after the president was unable to pass a national energy tax. The Federal Communications Commission is currently crafting rules to treat Internet-service providers as regulated monopolists despite having similar efforts struck down in court twice.

My lawsuit against the Office of Personnel Management is about far more than overturning the unfair special treatment for Congress. Article II, Section 3 of the Constitution provides that the president "shall take care that the Laws be faithfully executed." That duty is mandatory, not optional. As Justice John Paul Stevens wrote for the Supreme Court in Clinton v. City of New York, "[t]here is no provision in the Constitution that authorizes the president to enact, to amend or to repeal statutes." Rather, he must faithfully execute the laws that Congress enacts.

Americans do not wish to be ruled by a king or a House of Lords. We expect and deserve to be treated equally under the law. That is the primary principle this case is designed to affirm.

I hope all of my colleagues in both the House and Senate will join me in this effort to push back against this lawless administration. There is currently an amicus brief circulating for members of Congress to sign that makes a strong case on how Mr. Obama himself has dismantled his own signature piece of legislation through presidential decree.

A united front will surely help my case for standing so that we can proceed to a full trial, demonstrating the president's unconstitutional overreach.

Ron Johnson is a Republican member of the U.S. Senate from Wisconsin.