Republicans have turned again to Paul Clement of Bancroft for a high-profile challenge to President Barack Obama's new health care law.
Clement appeared on Capitol Hill today next to Sen. Ron Johnson (R-Wis.), who filed a federal lawsuit today challenging an Office of Personnel Management rule regarding health coverage for members of Congress and staff.
The issue is narrow but politically potent: Johnson wants the courts to void a rule that allows lawmakers and their staff to receive subsidies for their health plans. The Senate, Johnson said, held votes on provisions that require members of Congress and staffs to be treated the same way as constituents.
Johnson said he's suing over changes to the Affordable Care Act that were not fixed in Congress. "I don't believe the president has the authority to willy-nilly change the law," Johnson said at a press conference today on the Hill. "The president doesn't have the authority and at some point in time he needs to be challenged on that."
The main legal hurdle Johnson faces is whether he has legal standing to sue in the first place. Clement, addressing the issue today, said there are two main ways Johnson's complaint is "distinguished from cases out there to suggest that, in many instances, legislators do not have standing to bring challenges in court."
First, the OPM rule directly affects the Senate, Johnson's office and how he administers his office, Clement said. The case, he added, is different from legislators trying to bring a court case when they haven't been able to prevail in Congress, such as on the issue of defunding a war effort. In Johnson’s case, Clement said, Congress specifically considered the provision and it became law.
"The OPM rule—and this is the heart of the challenge that's been filed today—really interferes with that Congressional judgment," Clement said. "It stops what happened in the halls of Congress and effectively relaxes the impact of the decision Congress made, to make Congress and its staff members directly deal with the exact same health care situation as their constituents."
Jonathan Adler, who teaches at Case Western Reserve University School of Law, wrote today in a blog post at Volokh Conspiracy that standing is the "interesting question about this suit."
"As a beneficiary of the OPM policy, it's not clear that Senator Johnson has standing to challenge it," Adler wrote.
"As a general matter, individuals do not have standing as taxpayers to challenge allegedly illegal government spending," Adler wrote. "So even if one assumes Senator Johnson is correct on the law, this question might not get resolved in federal court."
Because of the standing issue, Johnson filed the case as an individual and said he will pay for it personally or through his campaign committee. It was filed in his home district in the U.S. District Court for the Eastern District of Wisconsin in Green Bay. Chief Judge William Griesbach was assigned to the lawsuit.
The counsel of record is Rick Esenberg, the founder and current president and general counsel of the Wisconsin Institute for Law & Liberty. Esenberg is an adjunct law professor at Marquette University Law School.
Clement was "retained to consult on possible appellate issues," according to Johnson's office. Johnson did not answer a question about the cost of retaining Clement, and Clement declined to discuss the cost, saying he did not know the compensation terms himself.
For Clement, a Wisconsin native and former solicitor general under George W. Bush, the case is another chance to take on Obama's health care law. Clement, representing 26 states, unsuccessfully led an earlier challenge of the Affordable Care Act. The Supreme Court, divided, upheld the centerpiece of the law in a June 2012 decision.
Clement, representing the Bipartisan Legal Advisory Group of the United States House of Representatives, argued in support of the Defense of Marriage Act in the Supreme Court in United States v. Windsor. House Republicans approved spending up to $3 million for the defense of DOMA.
Johnson's lawsuit drew criticism from another Republican Wisconsin lawmaker before it was even filed. Rep. Jim Sensenbrenner issued a statement Sunday calling the lawsuit "an unfortunate political stunt" and Johnson's success would mean an increased cost of insurance to staff, causing them to seek employment elsewhere.
"I am committed to repealing Obamacare, but the employer contribution he's attacking is nothing more than a standard benefit that most private and all federal employees receive—including the President," Sensenbrenner said in the statement.
"Success in the suit will mean that Congress will lose some of its best staff and will be staffed primarily by recent college graduates who are still on their parents' insurance," Sensenbrenner said. "This will make it even more difficult to fight the President and his older, more experienced staff."