GREEN BAY, Wis. — A federal judge will issue a decision "in short order" on whether a Republican senator's lawsuit against the Obama administration can proceed.
Lawyers on both sides of the issue argued in Green Bay, Wis., for more than two hours Monday over whether U.S. Sen. Ron Johnson, R-Wis., was harmed when the administration gave members of Congress and their staff subsidies to help pay for health insurance bought on the exchange.
In an interview on the courthouse steps before the hearing, Johnson said he thinks the Obama administration overstepped its authority by offering the subsidy.
When Congress passed the Affordable Care Act, it resolved that members of Congress and staff should be treated the same way as most private citizens under the act, Johnson said.
The Obama administration decided Congress members and staff members were eligible for a subsidy to pay for health insurance or that they could get coverage from one of the insurance exchanges set up for group policies to small businesses, the SHOP exchanges, Johnson said. But the federal government is not a small business and doesn't fit the definition as the Affordable Care Act requires, Johnson said.
"Obama unilaterally changed the law," Johnson said. "That's not our constitutional system."
A couple dozen people attended the hearing, including Johnson and several of his staff members, but no one testified at the hearing.
U.S. District Judge William Griesbach gave U.S. Department of Justice lawyer James Luh and Johnson's lawyer, Richard Esenberg of the Wisconsin Institute for Law & Liberty, several opportunities to put forth their arguments.
The issue before Griesbach is simply whether Johnson had personally suffered harm from the administrative rule, which is a necessary ingredient for him to have standing to bring the lawsuit.
Luh argued the case should be dismissed because neither Johnson nor his co-plaintiff, staff member Brooke Erickson, had personally been harmed by the administrative rules.
Esenberg argued that Congress intentionally sought to be treated the same as other Americans buying insurance on health care exchanges. When the administration offered members a subsidy, he said it forced them into a position of getting special treatment. That means Johnson loses credibility with his constituents if he or his staff members accept the benefit, Esenberg said.
Johnson also was forced into a position of having to determine which of his staff members are covered by certain sections of the Affordable Care Act and which are not, and that administrative burden is a form of harm that gives him standing, Esenberg argued.
Griesbach asked whether Johnson could avoid that task and avoid losing credibility with his constituents simply by refusing the benefit himself and letting staff members themselves decide whether to accept the benefit or obtain private insurance. Luh agreed that he could, while Esenberg argued it still required a positive step and still risked his credibility with constituents.
Griesbach gave no indication of when he would issue a decision.
Johnson said afterward he was greatly encouraged by the flavor of Griesbach's questions and that he listened to oral arguments Monday instead of just issuing a ruling.
White House spokesman Josh Earnest briefly addressed Johnson's suit at a news briefing Monday. He wasn't asked specifically about Monday's hearing or Johnson's comments but said the administration's efforts have been to enforce the Affordable Care Act and implement it in a way that maximizes benefits for the American people and expands access.
"I recognize there might be some like Sen. Johnson that don't share those goals and that's unfortunate," said Earnest, who noted that some Republican members of Congress don't agree with Johnson's suit or his interpretation of the law.