Sign in | Register now Like us on FacebookLike Us | Follow us on TwitterFollow Us

Milwaukee's Daily Magazine for Tuesday, Sept. 16, 2014

Tue
Hi: 63
Lo: 47
Wed
Hi: 65
Lo: 49
Thu
Hi: 63
Lo: 54
Advertise on OnMilwaukee.com

In Milwaukee Buzz Commentary

Ron Johnson's current lawsuit - and now appeal - over the Affordable Care Act makes all sorts of no sense.

Why Ron Johnson's lawsuit really hurts my brain


Good news, everybody! Wisconsin's senior Sen. (and man, is that a tough phrase to type) Ron Johnson, Republican, is appealing the dismissal of his lawsuit over the Affordable Care Act, so the hilarity can continue for the foreseeable future.

Let's recall the history here: When the ACA – Obamacare in the vernacular – was being drafted, Republicans were convinced that its implementation would be a disaster and that being "on Obamacare" would be tantamount to being executed by the Taliban. They were wrong; implementation seems to be going fine, and health outcomes are moving in the right direction according to the latest data. So almost as a joke, Republican Iowa senator Chuck Grassley looked up from Twitter long enough to propose an amendment that would force members of Congress and their staffs to go "on Obamacare."

As Johnson says about that amendment in his op-ed announcing the appeal, "members and staff would be in the same boat as their constituents when it came to Obamacare."

Of course, that's simply not true. The way the amendment was constructed, members and staffs are not at all like everyone else. The amendment forced Congress to stop offering health insurance to its members and staff so that they would have to buy on the exchanges, yet the ACA simply does not require any other employer to stop offering insurance. In fact, the ACA when fully implemented demands employers offer insurance, offer a subsidy to their employees to buy on the exchanges or pay a penalty. Johnson's suit is over the fact that the government is trying to meet one of those options – offering a subsidy – when he claims the Grassley amendment prohibits such a thing.

Basically, the Grassley amendment put Congress and its staff into the kind of hell they imagined the ACA would cause, even though the ACA creates no such hell.

But Johnson's duplicity here, claiming falsely that Congress and its staff are in "the same boat" when they are in fact not, is not what makes my head hurt about this whole thing. Rather, the reason Johnson's suit – and those helping Johnson pursue it, such as Rick Esenberg from the conservative Wisconsin Institute for Law and Liberty – make my head explode is actually Wisconsin Act 10.

I know, I should probably let Act 10 go, since, after all, my side keeps losing – including last week when the state supreme court put the final nail in. But there is a principal that directly relates.

When Act 10 was finally passed in March 2011, it was passed in violation of the state's open meetings law, which requires a minimum notice before a legislative body can meet and deliberate. This fact – that the minimum notice, either two hours or 24 hours depending, was not met by the state senate's posting on a bulletin board one hour and 50 minutes before passing the bill – was not at dispute in the first lawsuit surrounding the bill, Ozanne v Fitzgerald. The state supreme court majority upholding Act 10 admitted as much in its ruling.

No one disputed either that, when the legislature passed the open meetings law, it explicitly stated that the law applied to the legislature itself and further gave the courts the authority to enforce that law against legislators if they ever violated it.

But the court sided with the Republicans who passed Act 10 on the theory that, as long as the court feels the constitution was not violated, the courts simply don't have the power to make the legislature follow its own rules.

Really! The court said, "Choices about what laws represent wise public policy for the State of Wisconsin are not within the constitutional purview of the courts. The court's task in the action for original jurisdiction that we have granted is limited to determining whether the legislature employed a constitutionally violative process in the enactment of the Act. We conclude that the legislature did not violate the Wisconsin Constitution by the process it used."

In other words, even though the state legislature didn't follow its own rules, and even though the legislature granted the courts authority to enforce those rules against the legislature, the court declined to get involved even though there was no doubt those rules had been broken.

How does that 2011 decision regarding Act 10 relate to Ron Johnson's lawsuit over Obamacare? It's easy. In Johnson's case, we have Congress (well, technically the non-partisan Office of Personnel Management, the slice of bureaucracy tasked with handling the HR responsibilities for Congress) failing to follow a rule it set for itself: Its employees can't have a subsidy for health insurance.

The motivations for breaking the rules in these two cases are completely different: Wisconsin Republicans rushed Act 10 through in 2011 because, though public opinion was quickly turning against them, they wanted to kneecap public employee unions who opposed the balance of the GOP's agenda. On the other hand, OPM is thoughtfully trying to keep congressional staffers from going broke or leaving public service for a job that offers health benefits, like Starbucks barista.

But the principal is exactly the same: either legislatures have to follow the rules the set for themselves or they have discretion within broad constitutional limits to follow their own rules or not as situations demand.

Esenberg, the lawyer leading Johnson's charge against Obamacare, was, unsurprisingly, solidly in favor of the idea that legislatures are allowed to break their own rules when the Act 10 decision came down in 2011. That his group is now spearheading the charge against Obamacare on the opposite theory – and that Johnson's being cheered on by people who love Act 10, including many legislators who passed it – that is what really makes my head hurt.

But the again, for the modern GOP, ideology trumps actual governance, so I suppose I should not be surprised by this double standard at all.

Talkbacks

Scotty1979 | Aug. 8, 2014 at 9:38 a.m. (report)

"implementation seems to be going fine" WOW! Do you remember the roll out, Jay? It was a disaster! Also, having my health insurance cost jump by 25% I wouldn't call "going fine" and I was on the light end of insurance jump.

Rate this:
  • Average rating: 0.0
  • 1
  • 2
  • 3
  • 4
  • 5

RickEsenberg | Aug. 6, 2014 at 8:44 a.m. (report)

Jay, nice to hear from you. But, as I have told you in the past, be careful when you write about law. Your analysis here is wildly wrong. First, our argument is not that the ACA did not put members "in the same boat" as all members of the public. It was Congress wanted to put Members and staff in the same position as those who did not have employer provided insurance and would have to buy in the private market post-ACA or on the exchanges. Really, there can be no argument about that. Why else would Congress have given up their employer coverage? Second, you have the argument from Act 10 backwards. While I did not say that Act 10 was passed in violation of the open meetings law (it quite clearly was not), there was also an argument that a court can't force the legislature to abide by its own rules. But that it is not the argument we are making on behalf of Senator Johnson. The problem in his case is not that Congress is failing to abide by its own rules, but that the administration has ignored the rule that Congress passed. While I know that you teach English and not Civics, the Office of Personnel Management is not part of Congress; it is part of the executive. Congress could absolutely decide that they want their health coverage back. In fact, our argument is that, if that is what Congress wants, then it should amend the ACA. But it has not done so. To put it in the Act 10 context, your analogy would be apt (on the merits, if not on standing; our case is stronger) if the legislature had repealed Act 10 and Governor Walker tried to implement it anyway. So your head should not hurt. You just didn't understand.

Rate this:
  • Average rating: 0.0
  • 1
  • 2
  • 3
  • 4
  • 5
2 comments about this article.
Post a comment / write a review.

Facebook Comments

Disclaimer: Please note that Facebook comments are posted through Facebook and cannot be approved, edited or declined by OnMilwaukee.com. The opinions expressed in Facebook comments do not necessarily reflect those of OnMilwaukee.com or its staff.