Thirty-eight Republican lawmakers, including such unlikely bedfellows as John McCain of Arizona and Ted Cruz of Texas, have joined to support a lawsuit challenging the legality of the Affordable Care Act and accusing the president of repeatedly ignoring the law he signed for political reasons.
The lawmakers have signed onto a legal brief in support of a lawsuit filed by Sen. Ron Johnson, the Wisconsin Republican who is asking a federal court to overturn Obamacare’s special treatment for members of Congress and their staffs.
“The unlawful executive action at issue in this case is not an isolated incident,” the brief states. “Rather, it is part of an ongoing campaign by the executive branch to rewrite the Affordable Care Act on a wholesale basis.”
The brief contends that, if left unchecked, the administration’s campaign “threatens to subvert the most basic precept of our system of government.”
“The president of the United States is constitutionally obligated to take care that the law be faithfully executed; he does not have the power to modify or ignore laws that have been duly enacted by Congress and that he believes are constitutional,” the friend-of-the-court brief states.
Mr. Johnson’s lawsuit is challenging the health care act on the basis of federal subsidies granted to lawmakers and their aides, many of whom earn too high a salary to qualify otherwise. Members of Congress are paid $174,000 annually.
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The lawsuit also argues that the Affordable Care Act has caused the senator harm because the plan is forcing him to do something he thinks is illegal.
The amicus brief offers several examples in which Mr. Obama used “non-existent authority” to rewrite the Affordable Care Act, including the revision of the individual mandate, the suspension and revision of the employer mandate, the revision and suspension of the law regulating insurance plans, the unauthorized expansion of federal subsidies, and the suspension of the Medicaid maintenance-of-effort provision.
Attorneys from Jones Day filed the brief late Monday on behalf of the lawmakers and the Judicial Education Project. Among other senators who signed the brief are Tom Coburn of Oklahoma, Saxby Chambliss of Georgia and Lindsey Graham of South Carolina. House members include Reps. Marsha Blackburn of Tennessee and Matt Salmon of Arizona.
In an op-ed last week in The Washington Times, Mr. Johnson said Democrats came up with the subsidy for Congress “once members realized how harmful Obamacare actually was.”
“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,” Mr. Johnson said.
“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,” the senator from Wisconsin wrote.
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The rule issued in October by OPM allowed the federal government to contribute to pay the costs of health care benefits for members of Congress and their staffs — just as it does for other federal employees — even though they would be buying health insurance on a marketplace.
The administration filed its initial response to Mr. Johnson’s lawsuit in mid-March with a motion to dismiss for lack of standing.
There are 278 Republicans in the House and Senate.
When Mr. Johnson filed his lawsuit, it prompted debate in the Republican ranks about how to fight Obamacare.
Rep. F. James Sensenbrenner Jr., a fellow Wisconsin Republican and an outspoken critic of Obamacare, said at the time that he appealed to Mr. Johnson not to file the lawsuit and called the litigation “an unfortunate political stunt.”
• Dave Boyer can be reached at dboyer@washingtontimes.com.
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