- The Washington Times - Tuesday, April 14, 2015

A federal appeals court on Monday rejected a Republican senator’s lawsuit challenging the way Congress is treated under Obamacare.

Sen. Ron Johnson, of Wisconsin, said he was disappointed with the decision by a three-judge panel of the U.S. Court of Appeals for the 7th District, which found he lacked legal standing to sue because he could not prove he was harmed by administration rules that allowed congressional lawmakers and staff to keep an employer-based subsidy while using the Obamacare exchanges.

A lower-court judge tossed the Mr. Johnson’s lawsuit last summer on similar grounds.

“For the second time, my attempt to restore the constitutional balance between the executive and legislative co-equal branches of government has been stymied by the courts,” Mr. Johnson said. “With this decision today, another executive action by the administration will go unchallenged, all based on the legal technicality of standing.

“This is unfortunate for America,” he added, “because it means the important issue this case presents will not get its day in court.”

Mr. Johnson says the Office of Personnel Management provided illegal preferential treatment to Congress when it decided it would still dole out employer-based subsidies to help them pay their monthly premiums.

A provision of the president’s 2010 health law required members of Congress and key staffers to use the exchanges if they wanted insurance through their jobs.

The senator argued the rule damaged his reputation and electoral chances — he must run again in 2016 — because it offered him “special treatment” that is unavailable to his constituents, according to Tuesday’s opinion.

The appeals court dismissed those concerns, noting he rejected the employer contribution anyway.

“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,” Circuit Judge Joel M. Flaum wrote for the court. “He could not be accused of participating in an illegal scheme if he declined to participate.”

Mr. Johnson’s challenge is one of the lesser-known lawsuits against Obamacare.

Most observers are waiting for the Supreme Court to decide by late June whether the administration is illegally doling out Obamacare subsidies to customers in at least 34 states that use the federal HealthCare.gov portal.

The Affordable Care Act says subsidies should flow to exchanges “established by the state,” and challengers say that limits the assistance to the handful of states that set up their own exchanges.

In a Wall Street Journal op-ed Tuesday, Mr. Johnson said Congress should pass a measure that locks in the subsidies until August 2017 — without allowing new enrollees to obtain the assistance — while repealing the health law’s insurance mandates on individuals and employers, clearing the way for Republicans to repeal and replace Obamacare outright.

• Tom Howell Jr. can be reached at thowell@washingtontimes.com.

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