38 Republicans members of Congress signaled support Tuesday for a lawsuit from Sen. Ron Johnson, R-Wis., seeking to end federal subsidies for lawmakers and congressional staffers who purchase health insurance through Obamacare's exchanges.
Under the health care law, lawmakers and some of their staffers are required to purchase insurance through the exchanges. Because the initial business exchanges only catered to small businesses, not entities as large as Congress, these lawmakers and staffers were forced to enlist in the exchanges for individuals.
Despite the fact that they were purchasing coverage through the individual market, the Office of Personnel Management (OPM) ruled last year that they could continue to receive the same subsidies available to those who receive coverage through their employer.
Democrats and supporters of the law said the rule kept the playing field level, helping protect lower-paid congressional staffers from having to shell out more money for health insurance than employees of any other organization. But opponents of the law have said the rule reeks of special treatment -- a carve-out for those who wrote the law but don't want to live under it.
The rule "does not treat members of Congress and their staffs like members' constituents," states the lawsuit, which was filed in January. "Instead, it puts them in a better position by providing them with a continuing tax-free subsidy."
And in an amicus brief filed Tuesday, 38 Republican lawmakers stood behind Johnson's effort, saying OPM had no authority to extend those subsidies. The brief was signed by Sens. Ted Cruz, R-Texas, John McCain, R-Ariz., and Tim Scott, R-S.C., as well as Reps. Marsha Blackburn, R-Tenn., and Tom Cotton, R-Ark., among others.
The "unlawful executive action" is not an "isolated incident," they wrote. "Rather, it is part of an ongoing campaign by the Executive Branch to rewrite the Affordable Care Act ('ACA') on a wholesale basis."
"If left unchecked, that campaign threatens to subvert the most basic precept of our system of government: The President of the United States is constitutionally obligated to take care that the law be faithfully executed; he does not have the power to modify or ignore laws that have been duly enacted by Congress and that he believes are constitutional," they continued.
The lawsuit attempts to accomplish judicially what Republicans have been unable to do legislatively. Sen. David Vitter, R-La., offered an amendment during a budget showdown in 2013 that would have ended the controversial subsidies, but that proposal was eventually shelved. Republicans have long argued that the law should be repealed outright, but that message has been complicated by higher-than-expected insurance enrollment numbers and mounting evidence that the growth of health care costs has slowed under the law. The show of GOP support for Johnson's lawsuit, though, provides fresh evidence that Republicans aren't ready to declare a truce just yet.