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Sorry Senator, No Injury Here: Johnson's ACA Suit Tossed

By Casey C. Sullivan, Esq. on April 15, 2015 | Last updated on March 21, 2019

Wisconsin Senator Ron Johnson's suit challenging Obamacare's changes to congressional health plans was dismissed by the Seventh Circuit for lack of standing on Tuesday. Johnson and his legislative counsel had sued after the Affordable Care Act resulted in changes to their healthcare options, including federal subsidies for their health care plans. Johnson, however, had purchased his own private healthcare instead of participating in the federal program.

The two couldn't show an injury, needed to provide standing to sue, a unanimous Seventh Circuit ruled. The government had simply provided them a benefit which they refused.

The ACA's Changes to Congressional Health Plans

When the Affordable Care Act was passed, a provision limited the health care coverage available to Congress members and their staff to plans offered under the ACA. In implementing the provision, the Office of Personal Management determined that congressional staff members would have healthcare through the D.C. exchange's small business market. OPM also allowed pre-tax employer contributions to those plans.

Johnson sued, arguing that OPM lacked the authority to grant pre-tax employer contributions to ACA exchanges, that Congress cannot participate in small business exchanges, and that, by receiving the benefits, Johnson's "constitutional entitlement" to be treated like his constituents had been violated.

Where's the Injury?

Every first year law student quickly learns that federal courts can only hear cases and controversies pertaining to real or imminent injuries. What's the injury that Johnson alleges? The Seventh Circuit couldn't find it, noting that OPM's rule provided him a benefit -- better health insurance -- and no injury. Further, Johnson opted out of making pre-tax employer contributions (thanks, boss!) and therefore could not have been harmed by them. The administrative burden he claimed was, the court noted, nil. Since he didn't participate, he had to do literally nothing.

The Seventh Circuit knocked down each of Johnson's claims in a similar fashion. Johnson had claimed that his constitutional right to equal protection had been violated because he was treated differently from his constituents. There is no such right, the court found, but if there were, Johnson could identify no harm that stems from denying it.

No Damage to Your Reputation

Similarly, Johnson's claims that his reputation and electoral chances were harmed were not enough to establish standing. The court could find no injury once again -- Johnson was free to refuse the benefits and his argument that their mere availability harmed him did not stand. The court could not see how his reputation would be diminished "by being offered, against his will, a benefit that he then decided to refuse."

Johnson's suit was never considered a serious challenge to Obamacare; even if successful, it would have changed only a tiny part of the Act.

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