Johnson filed the lawsuit in January against the Office of Personnel Management, arguing that the agency's ruling runs counter to the intent of the Affordable Care Act.
OPM ruled last year that lawmakers and their staff who will have to get their health insurance through the law would continue to receive a government contribution toward premiums this year, but only if they enroll in a specific ACA plan. The policy was issued as House Republican leaders floated a plan, as part of maneuvering last year during a budgetary deadlock, to end that contribution for Congress and certain employees who will be forced out of their current health program.
The administration’s policy keeps the subsidy in place only for members of Congress and affected staff who enroll in a Small Business Health Options Program (SHOP) plan in the District of Columbia. Such plans most commonly will be aimed at employees of businesses with fewer than 50 workers. So far, more than 12,000 lawmakers and congressional staffers have enrolled in SHOP plans, constituting a majority of enrollees.
The Justice Department has asked a federal judge in Wisconsin to dismiss Johnson's lawsuit, arguing that Johnson hasn't been "directly injured" by the regulation and has no legal standing to sue. Johnson is one of at least five senators who are insured by their family or spouse's private insurance plan or purchased their own private coverage instead of a government-backed plan.
For now, the lawsuit continues, and on Tuesday 38 GOP lawmakers plan to file an amicus brief, writing that the "unlawful executive action" by OPM "is not an isolated incident."
"Rather," the lawmakers write, "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."
“In pursuing its strategy of unilateral governance, the Executive Branch has aggressively sought to frustrate judicial review of its actions. But courts must not shrink from their duty to enforce limits on executive power when necessary to protect the rights of individuals in actual cases and controversies. This case is a prime example,” they add.
Co-signers of the brief include Sens. Ted Cruz (R-Tex.), John McCain (R-Ariz.), Saxby Chambliss (R-Ga.), Mark Kirk (R-Ill.) and Tim Scott (R-S.C.) and Reps. Marsha Blackburn (R-Tenn.), Tom Cotton (R-Ark.), David Jolly (R-Fla.), Thomas Massie (R-Ky.) and Matt Salmon (R-Ariz.).
But there is some GOP resistance to Johnson's legal campaign. Rep. Jim Sensenbrenner (R-Wis.), among others, had urged the first-term senator not to proceed with his suit, saying it was a fruitless attempt to stop the law.
Notably, Johnson has said that he will use his campaign account to help raise funds for the suit, a move that will likely help him identify new financial donors for his 2016 reelection, which is expected to be an uphill climb since Wisconsin usually leans Democratic in presidential election years.
The lawmakers signed on after nearly two dozen conservative organizations, including Americans for Tax Reform, Heritage Action for America and the Family Research Council, urged Republican lawmakers to sign the amicus brief.
Clarification: This item has been updated to reflect that Johnson and his wife have purchased private health-care coverage with their own money, instead of using government subsidies or enrolling in a government-backed plan.