Washington (CNN) – Republican Sen. Ron Johnson of Wisconsin is waging a new battle against Obamacare outside of Congress, hiring a powerhouse attorney and filing a federal lawsuit that could reopen a debate over how lawmakers get their own healthcare.
“This is a lawsuit that I am filing against Katherine Archuleta and the Office of Personnel Management to overturn their ruling that gives members of Congress and their staffs special treatment under the health care law,” Johnson told reporters Monday. “I think it’s a basic issue of fairness.”
Flanking Johnson was his attorney for the case, legal superstar Paul Clement who is known for taking dozens of issues to the Supreme Court, including arguments against the Affordable Care Act.
In a suit filed in the Eastern District of Wisconsin, Johnson is challenging the rules that govern how members of Congress and their staff get their health care, insisting that they should not receive any federal health benefit money and that no Capitol Hill staffers should be exempted from exchange requirements.
The law essentially says that the only health coverage available to members of Congress and their staff through their job must come from the newly created Obamacare insurance exchanges. But the wording in the law is broad and the Office of Personnel Management had to issue a rule to determine how it would apply.
That rule, Johnson alleges, subverted the law and opened up loopholes by allowing each member of Congress to determine which workers on their staff would be forced into the exchange and by giving thousands of dollars in employer-sponsored health benefit to help pay for the exchange policies.
The issue is heavily debated within the walls of the Capitol, with others arguing that the health care law says nothing about whether the federal government should help pay for coverage or not. And while Johnson believes that lawmakers would relate to constituents more by using the exchanges with no federal benefit money, others point out that the vast majority of Americans receive employer-sponsored coverage.
Like most large employers, the federal government pays for a sizable portion of the premiums for its main health benefit package – the Federal Employees Health Benefit Program (FEHBP). The ACA provision in question separated members of Congress and their staff from the FEHBP policies starting on January 1, sending them to the exchanges. If all premium support were also cut, those workers would have lost gotten what amounted to a net cut in pay. But the OPM rule allowed the federal benefit dollars to keep flowing to thousands of Hill staffers.
Johnson says that rule was aggressive overreach by the Obama administration. “The president doesn’t have the authority to change the law,” the Wisconsin Republican said. “If members of Congress and this administration don’t like the law of the land, they should come to Congress to change the law of the land.”
But don’t expect this to be a Constitutional throw-down. The lawsuit’s arguments don’t address executive branch power directly. They are more technical: Johnson argues the exchange plans don’t meet negotiation requirements, that the federal government is too large to operate as a sort of small business in the exchanges and that the OPM rule violates the Equal Protection Clause of the Constitution by giving lawmakers and staff an advantage over other Americans.
Not all Republicans agree with Johnson taking this aspect of the law to court. Another GOP lawmaker from Wisconsin, Rep. Jim Sensenbrenner, called the move an "unfortunate political stunt" that was aimed at attacking "nothing more than a standard benefit that most private and all federal employees receive – including the President."
"Senator Johnson should spend his time legislating rather than litigating as our country is facing big problems that must be addressed by Congress – not the courts," Sensenbrenner said in a statement. "All Republicans want to repeal Obamacare, but this politically motivated lawsuit only takes public attention away from how bad all of Obamacare really is and focuses it on a trivial issue."
“I have a great deal of respect for Congressman Sensenbrenner,” Johnson responded Monday. “But I’m… puzzled by his reaction… I don’t in any way shape or form believe this is trivial.”
Johnson said he will pay for the lawsuit with either campaign funds or out of his personal bank accounts.
Although Johnson's lawsuit tracks with his record opposing the healthcare law, the move also helps a Republican Party focused on making Obamacare – and the botched rollout the stymied the law in 2013 – the focus of the 2014 midterms elections.
Johnson’s attorney Clement told CNN the soonest a decision could come from the federal district court is “in months”.
- CNN's Deirdre Walsh and Dan Merica contributed to this report