Senator's Obamacare suit faces long odds, scholars say

WASHINGTON -- An Obamacare lawsuit brought by Republican Sen. Ron Johnson is set for a hearing in Wisconsin on Monday but legal scholars are giving the suit long odds for success.

Federal Judge William C. Griesbach of the Eastern District of Wisconsin will hear arguments from both sides on the administration's request to dismiss the suit. In order to proceed, Johnson must prove that he was personally harmed by the administration's actions, thereby giving him standing to sue.

Johnson is asserting that the Obama administration overstepped its authority when it gave members of Congress and their staff subsidies to help pay for health insurance purchased on an Obamacare exchange, regardless of what they earn.

The senator says the move harmed him because the administration asked him to determine which of his staff will get the subsidy and is forcing him to participate in something he believes is illegal and not available to other Americans.

But the administration contends the subsidies are benefits and therefore not harmful by definition. And it argues that the senator does not have to participate so he is not being forced to do anything and has suffered no harm.

The issue may seem petty to some outside the Beltway, but to the senator, the case is about more than congressional health insurance. He says it's another example of presidential overreach, much like some of President Obama's recess appointments or his insistence that companies provide health insurance that covers contraception, regardless of religious beliefs. The Supreme Court last month ruled against the Obama administration in both instances.

"I think this is a really important case, this could be a landmark-type case," Johnson said.

Legal scholars say Johnson will have a hard time proving harm. Steven Schwinn, law professor at The John Marshall Law School in Chicago, said the administration appears to have carefully crafted the subsidy directive to avoid such injury.

"It's hard for me to see how the senator is harmed by this," said Schwinn, co-founder and editor of Constitutional Law Prof Blog. "And without a harm recognizable -- imminent personal harm -- there's no what we call 'standing' in the federal courts, and if there's no standing, there's no jurisdiction."

Health care law Professor Margaret Foster Riley at the University of Virginia agrees. And she says Johnson's assertion that he is being forced to participate in something illegal may not hold up.

"Just because he thinks something is illegal, that doesn't give you standing; that doesn't give you an injury in fact," she said. "And the substance of this case is frankly somewhat bizarre."

Johnson and his lawyer in the case, Rick Esenberg of the Wisconsin Institute for Law & Liberty, acknowledge that proving he was harmed and therefore has standing to sue will be one of the biggest obstacles to proceeding with the case. But both believe the facts are in their favor.

Esenberg said Congress debated and then rejected the notion of providing subsidies to members of Congress and their staff under the law with the intent that they should be treated the same as other Americans buying insurance on health care exchanges. Americans who make more than roughly $46,000 annually do not qualify for subsidies. Members of Congress make about $175,000 a year.

So the administration's decision conflicts with the law by giving them special treatment different from the status of other Americans, Esenberg says.

"He's a member of Congress and for him to be denied that status is an injury that will support standing," he said.

Esenberg lashed out at the administration's contention that providing a benefit is not harmful.

"It strikes me as arrogant and disrespectful of Congress to say that," he said.

Johnson said he was encouraged that Judge Griesbach, a Bush appointee, accepted amicus briefs supporting his suit and that he didn't just issue a ruling and instead set a hearing first for oral arguments.

"Having the oral arguments just tells me that this judge is giving this case the serious consideration it deserves," Johnson said.

He plans to be in the courtroom when arguments are scheduled to begin at 9 a.m. CDT. "You couldn't keep me away," Johnson said.