Sen. Ron Johnson is hoping a federal appeals court will breathe new life into his lawsuit over how Congress is treated under Obamacare.
A lower-court judge tossed the Mr. Johnson’s lawsuit last summer, saying the Wisconsin Republican 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.
Mr. Johnson is hoping for a better outcome before the 7th U.S. Court of Appeals in Chicago, which is set to hear oral arguments Wednesday.
“I look forward to making the argument to allow my case to be decided on its merits — not dismissed on a legal technicality,” he said.
Paul D. Clement, a former U.S. solicitor general who’s argued against Obamacare’s individual mandate and contraception rules, will plead Mr. Johnson’s case before the circuit judges.
The senator was scheduled to attend the session in person but scrapped his plans late Tuesday, citing Senate business.
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 get their insurance coverage through the exchanges.
Mr. Johnson’s challenge is one of the lesser-known lawsuits against Obamacare. Most observers are eyeing a Supreme Court showdown this term that could determine the fate of Obamacare’s subsidies in about two-thirds of the states.
Obamacare opponents say the IRS unlawfully extended the subsidies to states that rely on the federal exchange, because the law’s text appeared to reserve them for exchanges “established by the state.”
The Obama administration said it stands in the shoes of state’s that refuse to set up their own exchanges, so the subsidies should be available to all.
• Tom Howell Jr. can be reached at thowell@washingtontimes.com.
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