Sunday, January 5, 2014

Johnson to Sue Over Congressional "Exemption" From Obamacare

Senator Ron Johnson (R-Wis) writes in the Wall Street Journal that he'll file suit today to stop the congressional "exemption" from Obamacare.  Senator Johnson writes that the OPM rule allowing members of Congress and staffers to use the exchange and also get an employer subsidy violates the Affordable Care Act and exceeds executive authority.

The dispute over the congressional "exemption" goes way back.  But it turns out, there's no such exemption at all.  The ACA contained a provision that required members of Congress and their staffers to get health insurance on an exchange.  But that was unusual, because members and staffers already had employer-subsidized coverage under the Federal Employee Health Benefit Plan.  (Exchanges are for the uninsured or employees of small corporations, not for employees of large corporations who already have coverage.  Congress, which previously provided subsidized health insurance to members and staffers, nevertheless inserted a provision in the ACA that required members and staffers to use an exchange.)  As a result, members and staffers would have lost their subsidy.  So OPM stepped in and ruled this fall that members and staffers would qualify for an employer subsidy on the exchange if they purchased insurance in a Small Business Health Options Program, or SHOP.

As PolitiFact, Factcheck.org, and WaPo's Fact Checker all explain, this treatment is different and unusual, but it's hardly an exemption.  Instead, the employer subsidy simply attempts to put members and staffers back in the position they would have been in if they were treated as employees with employer-subdized health insurance in any large corporation.  In other words, the ACA treated members and staffers differently (worse) than similarly situated employees in large corporations; OPM merely tried to return them to their previous situation--so that they would be treated like everybody else.

Still, there's the question whether OPM had authority to authorize subsidies for member and staffer insurance purchases on an exchange, or whether that required a congressional fix to the ACA.  Senator Johnson says OPM exceeded its authority--that this was a job (were it to be done at all) only for Congress.

http://lawprofessors.typepad.com/conlaw/2014/01/johnson-to-sue-over-congressional-exemption-from-obamacare.html

Cases and Case Materials, Congressional Authority, Executive Authority, News, Separation of Powers | Permalink

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