Senator Johnson’s Obamacare Standing


Update: oops, I have been reminded that the Tenth Circuit in Schaffer v. Clinton, 240 F.3d 878, 885-86 (10th Cir. 2001), rejected the D.C. Circuit’s Boehner v. Anderson conclusion and held that a member of Congress lacked standing to complain of a pay increase that allegedly violated the Twenty-Seventh Amendment. Schaffer isn’t cited in DOJ’s motion to dismiss either.


Senator Ron Johnson (R-Wisc.) has brought a lawsuit against OPM in the U.S. District Court for the Eastern District of Wisconsin in which the senator, along with one of his aides, challenges OPM’s regulations related to congressional health insurance options available under the Affordable Care Act. Specifically, the plaintiffs argue that OPM lacked the authority to grant employer subsidies for congressional health insurance purchased on the exchanges under Section 1312 (d)(3)(D) of the ACA. They also maintain that OPM improperly shifted to Members of Congress the burden of determining which legislative employees qualify as employees of “the official office of a Member of Congress” within the meaning of Section 1312 (d)(3)(D).

Andrew McCarthy has called this lawsuit “frivolous,” saying “it is no more constitutionally proper or practical for a legislator to sue the president over a public policy dispute than for the president to violate valid laws.” But while the suit may be “frivolous” in the sense that it is not a worthwhile use of the senator’s or the court’s time, it is not legally defective simply because the senator’s motivation is to win a political or public policy dispute. If, for example, Marbury was motivated by the desire to score political points against the Jefferson administration rather than by a genuine ambition to become a justice of the peace (which may have been the case, for all I know), this would not have been grounds to reject his case. At least I don’t think so.

The legal question is simply whether Johnson and/or his aide have suffered a personal injury that can be redressed in court. This is not a case, like Raines v. Byrd, 521 U.S. 811 (1997), where individual members of Congress are attempting to vindicate an institutional injury suffered by the legislative body as a whole.

The Justice Department, representing OPM, argues that the plaintiffs lack standing because they are not claiming any personal injury. For example, they “are not contending that the challenged OPM regulations have any adverse effect on their own health coverage.” DOJ Motion to Dismiss at 7 (emphasis in original). Instead, their “suit seeks to narrow the health-coverage options and benefits made available to themselves and other Members of Congress and congressional employees.” Id. (emphasis in original). How, DOJ in essence asks, can Senator Johnson have been injured by receiving a financial benefit such as an employer subsidy?

This is a fair question, but I can’t help noticing that the Justice Department failed to cite the only case (to my knowledge) to answer this question in a virtually identical context. In Boehner v. Anderson, 30 F.3d 156 (D.C. Cir. 1994), a group of members and congressional candidates, led by the future Speaker of the House, challenged certain congressional pay increases as contrary to the Twenty-Seventh Amendment. As in the Johnson lawsuit, the defendants argued that Boehner lacked standing to sue because his complaint was really a generalized about the conduct of government. Besides, the Secretary of the Senate (one of the defendants) added sensibly, “an increase in pay is not an injury.”

Boehner, however, argued that in his case it was an injury because his constituents would think less of him for receiving a financial benefit to which he was not legally entitled. This argument, essentially identical to Johnson’s, was accepted by the D.C. Circuit, which stated: “We do not think it the office of a court to insist that getting additional monetary compensation is a good when the recipient, a congressman, says that in his political position it is a bad.”

We will see if the federal court in Wisconsin follows this line of reasoning. If it does not, Senator Johnson still may be able to prevail on standing with regard to the “official office” designation issue. Here Johnson contends that OPM has unlawfully punted the responsibility for determining who works for an “official office” within the statutory meaning. This places a burden on the individual member to make this determination, without any guidance from OPM, and results in identically situated staffers being treated differently.

DOJ’s arguments against standing on this issue strike me as less than impressive. The primary argument is that the necessity of determining which employees work for an “official office” results from the ACA itself, not from OPM. That’s true, but it is OPM that has taken a legal determination that should be made by the agency and made it into an arbitrary choice to be made by members.

DOJ also argues that Johnson does not really have to undertake the burden of making this decision because he has the option of delegating it to the Senate’s administrative office. But that’s just another way of making the decision. Johnson knows what determination the Senate administrative office will make. If that is the legally correct determination, then OPM should have made that determination in the first place. Instead, OPM is essentially giving members the option to decide whether or not they want to follow the law. Since following the law will impose a cost on a member (particularly in comparison to another member who may decide not to follow it), that does seem to place an individual burden on each member.

Senator Vitter, Congressional Health Care, and the Rule of Law

This weekend the Washington Post published an article entitled “A senator’s lonely quest to embarrass Congress,” which describes Senator Vitter’s continuing efforts with regard to the health insurance plans available to Members of Congress and congressional staff. You wouldn’t think that embarrassing Congress would be all that lonely of a quest; perhaps that’s why the online title is changed to “David Vitter’s political quest to embarrass Congress on health care.”

Of specific interest to this blog, Vitter objects to the fact that some committee and leadership office staffers have not been required to obtain insurance on the exchanges. In remarks made on November 13 in the Congressional Record, he states:

Part of [the OPM] rule, which I think is outrageous on its face, says: Well, we don’t know who official staff are. We cannot determine that, so we are going to leave it up to each individual Member of Congress to determine who their official staff are. As long as they deem certain staff nonofficial, then they don’t have to go to the exchanges at all. They don’t have to follow that clear mandate in the statute itself.

Well, again, when we are talking about folks who work on our staff, committee staff, and leadership staff, that is ridiculous. They are clearly official staff.

Continue reading “Senator Vitter, Congressional Health Care, and the Rule of Law”

Senate “Official Office” Designations Still a Black Box

Yesterday Roll Call reported on a memorandum issued by the Senate Disbursing Office to guide Senate employees on the considerable intricacies of their health insurance situation. However, with regard to the foundational question of whether any particular employee may continue to receive health insurance through the FEHB or, conversely, must get insurance through the DC Exchange, the memo provides little guidance.

The memo advises:

OPM has stated that the designation of whether an employee is part of a Member’s “official office” is ultimately determined by the Member, unless the Member delegates that designation to the Secretary of the Senate. The Senate Disbursing Office has provided each Member with a form to make “official office” designations regarding personal, committee, and leadership staff. The Disbursing Office will confirm your individual designation status after October 31, 2013 by mail.

This sure sounds as if Senators will have the ability to designate “personal, committee, and leadership staff” as “official office” employees if they so choose. There is nothing in the memo I see to inform the exercise of this discretion or to discourage a Senator from designating all of her personal, committee and leadership staff as “official office” (or, conversely, from designating none).

Now the Roll Call story says:

Leadership staffs and committee staffs are still exempt from the exchanges, as was written into the law (by leadership and committee staffs). It is up to each office, per the Office of Personnel and Management rule stated in the memo, to determine who is qualified for this exemption.

But where does it say that leadership and committee staff are “still exempt from the exchanges”? As far as I can see, it doesn’t say that in the Disbursing Office memo and, as we have discussed, OPM didn’t say that either.

Presumably Roll Call expects that Senators will designate leadership and committee staff as “official office” only if they anticipate the staff will spend some part of the year working in the personal office or on the personal office payroll. But if this is the rule, one would expect to see it appear somewhere in writing. Usually, legal standards are not established by word of mouth or on deep background.

Of course, since Senators have the option of punting (I mean “delegating”) the “official office” designation to the Secretary of the Senate, presumably the Secretary has decided or will decide shortly how she would make the decision. Perhaps this is being communicated to Senators in some private fashion. Maybe it appears in the “official office”  designation form that each Senator has received, a document which is not being shared with Senate employees or the general public. Who knows?

CAO Fact Sheet on Congressional Health Insurance

The House Chief Administrative Officer has issued this fact sheet regarding federal health insurance available to Members of Congress and those lucky staffers found to be employed in a Member’s “official office.” Following OPM’s guidance, the CAO states:

Members of Congress and congressional administrative staff are best equipped to make the determination as to whether an individual is employed by the “official office” of that member. Designations must be made prior to November 2013 for the coverage year starting January 1, 2014 and October for subsequent plan years.

Needless to say, this statement provides no additional clarity (which is to say no clarity at all) on the question of whether committee and leadership office staff may be designated as employed by the “official office” of a Member.

A couple of other questions occur to me. What happens if a Member fails to make any designation by November? Is the default rule that any staffer not affirmatively designated by a Member by that date automatically remains on the Federal Employee Health Benefit plan?

Also, is there a mechanism by which a staffer can affirmatively challenge a designation by a Member that he or she works in his “official office”? What happens in the case of shared employees who work for more than one Member? Of in the case of a committee staffer who contends that he works for the full committee chair, rather than the subcommittee chair, or vice versa? Or the ranking member rather than the chair?

Eventually the CAO (or someone) is going to have to address these questions.

OPM’s Final Rule Pretty Much as Expected

OPM’s final rule on congressional health care says the following regarding the determination of who is “congressional staff” required to go on the Exchanges:

OPM received several comments related to health care coverage for congressional staff and how staff will be designated for the purpose of determining which individuals are required to purchase their health insurance coverage from an Exchange.

 OPM has not amended the final rule on the basis of these comments. OPM continues to believe that individual Members or their designees are in the best position to determine which staff work in the official office of each Member.  Accordingly, OPM will leave those determinations to the Members or their designees, and will not interfere in the process by which a Member of Congress may work with the House and Senate Administrative Offices to determine which of their staff are eligible for a Government contribution towards a health benefits plan purchased through an appropriate Small Business Health Options Program (SHOP) as determined by the Director.  Nothing in this regulation limits a Member’s authority to delegate to the House or Senate Administrative Offices the Member’s decision about the proper designation of his or her staff. The final rule has been amended to provide an extension for staff designations affecting plan year 2014 only. Designations for individuals hired throughout the plan year should be made at the time of hire.

Again, reading between the lines, one can infer that “the official office of each Member” refers to the Member’s personal office, but OPM studiously avoids saying this directly. Thus, if a Member chooses to designate committee or leadership office employees as “congressional staff,” it sounds like OPM “will not interfere.”

Though it is hard to tell for sure.

What the Bleep is an “Official Office”?

Much outrage ensued last month when the Office of Personnel Management issued a proposed regulation that allows the federal government to defray the cost of congressional health care purchased on the Exchanges pursuant to the Affordable Care Act. Less notice was taken of OPM’s more dubious decision, or rather non-decision, on the question of who is required to purchase insurance on the Exchanges in the first place.

Legislative Background

Some background is required. During the heath care debate, Senators Coburn and Grassley “argued that if Democrats were so keen on creating new health care programs, the president, administration officials, members of Congress and their staff should also be required to participate.” They offered amendments to that effect. Eventually the sausage machine spit out a provision that embodies their concept, but only applies to Congress, not to the executive branch. Go figure.

Specifically, as enacted into law, Subsection 1312(d)(3)(D) of the ACA provides that “Members of Congress and congressional staff” are only eligible to receive health insurance “offered through an Exchange under this Act.” When this provision becomes effective, therefore, Members and anyone who qualifies as “congressional staff” will no longer be able to participate in the general health insurance program for federal employees (the FEHB).

The question then is who qualifies as “congressional staff.” As far as I know, “congressional staff” is not a term of art defined in the law, but the ordinary meaning of the term would generally cover legislative and administrative employees of the House and Senate, with the possible exception of those who solely provide support services like installing the furniture, running the restaurants, etc. See Cong. Rec. 655 (Jan. 5, 1995) (“[O]ur legislative and our administrative personnel [are what] many people think of when you think of Capitol Hill staffers.”) (Sen. Glenn).

The ACA, however, contains a unique and rather unhelpful definition of “congressional staff.”  It defines the term as meaning “all full-time and part-time employees employed by the official office of a Member of Congress, whether in Washington, DC or outside of Washington, DC.”

Note the apparent lack of content in this definition. It hardly seems necessary to explain that “all full-time or part-time employees” are covered or that they may work “in Washington, DC or outside of Washington, DC.” Or they may be short or tall, fat or thin, I’m guessing.

The only real point of the definition seems to be to limit “congressional staff” to those “employed by the official office of a Member of Congress.” But what is an “official office”? Do Members have “unofficial offices”? No one seems to know what an “official office of a Member of Congress” is, and, as the Congressional Research Service has observed, this phrase has not previously been used in statute or appropriations law.

If clarity had been desired, there are many existing statutory definitions that could have been used. For example, if the intent had been to limit “congressional staff” to those employed in a Member’s personal office, it would have been easy enough to say this plainly. See 2 U.S.C. § 1301 (9)(a) (defining “employing office” for purposes of the Congressional Accountability Act as including “the personal office of a Member of the House of Representatives or of a Senator.”). Of course, a cynic might conclude that obscure language was deliberately used so as to maintain plausible deniability in case someone read the provision before it was passed.

During the legislative process, Coburn and Grassley apparently objected to the definition of “congressional staff” as too narrow, contending that it would exclude “higher-paid committee aides and leadership aides.” They wanted to use Grassley’s original definition, which had covered all employees paid through the House and Senate disbursing offices. That would not only have been broader, but more intelligible and consistent with existing statutory usages. See, e.g., 2 U.S.C. §§ 89a, 130b, 130c and 130d (defining House and Senate employees as those who receive pay from the relevant disbursing authorities).

But Coburn and Grassley lost (they blame the Senate leadership), and the definition is what it is. So those required to implement the law have to figure out what constitutes a Member’s “official office.”  Continue reading “What the Bleep is an “Official Office”?”