A federal judge in Wisconsin threw out Sen. Ron JohnsonRon JohnsonA guide to the committees: Senate Hopes rise for law to expand access to experimental drugs Dems ask for hearings on Russian attempts to attack election infrastructure MORE's (R-Wis.) lawsuit challenging an Obama administration rule that allows congressional staffers to continue to receive healthcare subsidies when signing up for ObamaCare.
Judge William Griesbach did not rule on the merits of the case, instead dismissing the challenge because Johnson and another staffer on the lawsuit lacked standing because they were not concretely injured by the regulation.
"There is nothing in the Constitution stipulating that all wrongs must have remedies, much less that the remedy must lie in federal court," the judge wrote, hinting that it might be impossible to prove anyone would have standing in the case.
In the absence of injury, the judge warned standing cannot be based on a plaintiff's own subjective views. That would create "the kind of super-legislature specifically rejected by the Founders,” he wrote.
Johnson sued the Office of Personnel Management (OPM) in January over congressional staff guidance it issued in regard to ObamaCare. Forty-five others Republicans signed a friend of the court brief in support.
The lawsuit is separate from one Speaker John Boehner (R-Ohio) recently announced that focuses on delays to the employer mandate in the healthcare law.
Last year, the OPM issued a ruling allowing members and their "official office" staff to continue to receive federal healthcare subsidies on the newly created health exchanges.
The federal government in the past had subsidized premium costs for congressional employees through a federal healthcare program. The Affordable Care Act required members and their staff to enter the new exchanges but was silent on whether the subsidies could continue, allowing the OPM to make the ruling.
In a statement Monday night, Johnson said his staff would review the decision before deciding if he would appeal. He lamented his inability to get a decision on the merits of what he called Obama's "unlawful and unfair" rule.
"Unfortunately, those actions will go unchallenged for now, because the district court granted the administration's motion to dismiss based on the legal technicality of standing," he said.
The judge dismissed three complains from Johnson — that the senator was burdened by having to determine who qualifies as "official staff," that the rule hurt his reputation with voters for accepting unwarranted benefits and that it violates his constitutional right to equal protection by treating him differently than other federal employees.
The judge found the injury to Johnson's reputation unconvincing and said the senator cannot claim injury under the Equal Protection Clause.
"Given that the Plaintiffs receive, at worst, a benefit, they cannot claim to be injured under an equal protection theory,” he said.
The judge also dismissed the argument that, without a court challenge, there would be no other way to fix the regulation.
Lawmakers can cite the regulation on the campaign trail to sway elections, the judge said, or Congress could use some of its other powers to rein in the executive.
"The Congress itself is surely not helpless to rein in the executive: It has spending authority, investigative powers, and it even wields the blunt instrument of impeachment," the judge wrote.