This past week, on January 13, freshman Senator Ron Johnson (R-Wisc.) filed a lawsuit in U.S. District Court in Green Bay, Wisconsin, against the federal Office of Personnel Management (OPM). With his suit, Johnson hopes to get the Obama Administration to enforce portions of the federal health reform law it has signaled it will ignore.
Such are the peculiarities of Obamacare that a Republican senator must sue in order to get a Democratic president to enforce the latters signature piece of legislation.
If his case is to proceed, Johnson must show that he has been harmed by OPMs decision to let the law slide. But regardless of whether he succeeds or is deemed to have standing, Johnson has highlighted the disconcerting approach the Administration has adopted toward Obamacare namely that it plans to enforce the parts it likes and ignore those it finds inconvenient.
Common citizens dont have the luxury of selecting which laws theyll follow; neither should the president.
Johnsons suit seeks to revoke a recent decision by OPM to give Members of Congress and their staffers subsidies for the purchase of health insurance. These subsidies are to cover roughly three-quarters of the cost of coverage, which Obamacare requires congressional employees to buy through one of the new insurance exchanges.
According to the law, the only health plans that the Federal Government may make available to Members of Congress and their congressional staff with respect to their service as a Member of Congress or congressional staff shall be health plans that are . . . I) created by this Act or II) offered through an exchange.
That provision was inserted at the behest of Sen. Chuck Grassley (R-Iowa), under the reasoning that if Members of Congress were going to subject the American people to a new government-run insurance marketplace, lawmakers should have to participate in it, too. The Senate Finance Committee accepted Grassleys offering unanimously.
Theres only one problem Obamacares text renders many staffers and all Congressmen ineligible for the subsidies OPM would like to give them.
Subsidies in the exchanges are distributed according to income. An ordinary single person must make less than $45,000 to qualify for assistance; at that income level, hed qualify for a subsidy of $2,500. A person with a family of four would lose eligibility for subsidies once household income hit $94,200.
Of course, all Congressmen and many of their staffers far exceed these income levels. Members of Congress take home $175,000 a year. Top aides routinely make six-figure salaries. In both cases, these groups would be ineligible for the income-based subsidies established by the law.
Grassley tried to fix this inconvenient situation by introducing several amendments that would have explicitly allowed lawmakers and their staffers to take the tax-free contributions the federal government had previously made toward their health coverage with them to the exchanges. But none of his amendments made it into the version of Obamacare signed by the president.
That put the administration in a bind. If they followed the law as written, then thousands of congressional employees would experience pay cuts of roughly 7 percent, as theyd have to buy health insurance with their own after-tax dollars and without the benefit of a contribution from their employer.
But if they maintained the contributions for employees of Congress, theyd be granting those who worked for the legislative branch special treatment treatment that ordinary Americans with similar incomes shopping in the exchanges would not get.
OPM opted for a third approach it divorced itself from reality. The agency essentially declared Congress a small business based in Washington, D.C., and ordered lawmakers and their staffs to purchase coverage in D.C.s small-business exchange. They wouldnt receive taxpayer subsidies through Obamacare. But they would qualify for contributions, as they had in the past, from their employer who just so happens to be the federal taxpayer.
Never mind that many staffers such as those in congressional district offices dont live or work in Washington, D.C. Or that classifying the 11,000-odd Congressmen and their staffers as a small business renders the term meaningless.
The rule may not stand. OPM doesnt have the legal authority to spend taxpayer money without congressional orders. And Congress most definitely has not authorized the contributions.
Theres also the Constitutions stipulation that congressional remuneration may not be changed in the midst of congressional terms, and its implicit requirement that lawmakers pay must be voted on and enacted as statutory law. As the OPMs action amounts to administrative fiat, it passes neither test.
Simply put, Johnsons lawsuit emphasizes the obvious that the Administration had no concept of the collateral damage Obamacare would inflict on the American healthcare system.
Ordinary Americans ought to follow their elected officials example and demand exemptions of their own from the law. Of course, nothing short of repeal will deliver that.