Why Sen. Johnson is right

Once again, I feel compelled to respond to a legal opinion offered by the Journal Sentinel's editorial board. In this case, the board believes that the case that I and my colleagues at the Wisconsin Institute for Law & Liberty on behalf of Sen. Ron Johnson should be dismissed. Although it will leave the "legal particulars" to the court (good call), the board thinks that Members of Congress and their staff "should" receive employer provided health insurance.
So do I.
But Congress did not.

It decided that Members and their staff should be in the same position as those most affected by the new Affordable Care Act. It decided that this would help Members and staff to understand the impact of the ACA and provide credibility to both Congressional proponents and opponents of the law. So it repealed federal health care benefits for Members and staff and said they may only be provided with insurance on exchanges. People who purchase in individual exchanges (the only ones that Members and staff qualify for) can't get tax free employer contributions.

When it came time to walk the walk, a minority of Members objected. They asked their colleagues to change the law and give back the benefits they had taken away. Congress refused. Unable to change the law, these Members asked the administration to bail them out and they did - writing a rule that undoes the law that is actually on the books.
Judge Griesbach will decide if Senator Johnson has standing to challenge the blatantly illegal rule that rewrites this mandate of equal status. I've been doing this too long to think I can predict the outcome of a case like this. But we believe that he does and , not as the board suggests, because of a generalized desire to see the law enforced.

Rather, the Senator has standing because it harms his relationship with his constituents and the ability to manage his personal staff in accordance with the law.
Rightly or wrongly, Congress decided that being in the same boat with those most affected by the ACA was important. Each Member is now entitled to insist on that status and is injured by the government's blatantly illegal rewrite of the law to evade it. (A Member can decline benefits for herself, but not for her staff.) In addition, each Member has an unavoidable legal responsibility to take certain steps to comply with the illegal "workaound" the law that Congress passed. This too supports standing.
The editorial board dismisses this interest in equal status as mere government "hypocrisy" and suggests that nothing should be done about that. What it doesn't understand is that a federal court is unlikely to dismiss what a co-equal branch of government has done as a mere stunt or meaningless act of political masochism. If Congress has a reason to do what it did, then Members of Congress - the very people affected by what it did -  have a reason to insist on it.
But whatever comes of the standing argument (something that we knew would be raised), the outcome of the case should not turn on whether it is "good" for Members and staff to get federal health benefits. Congress decided that they should not. If that decision was wrong, Congress itself controls the remedy. It can repeal the mandate of equal status that it adopted.
But so far it hasn't. In a nation of laws, it is not for the Executive Branch or the judiciary to do it for them. To say that Senator Johnson, for insisting on fidelity to the law, is engaged in a "political stunt" is quite disappointing. I would have not have thought we'd come to the point where convenience trumps the rule of law.

Cross posted at Shark and Shepherd home page