GOP senator appeals 'fatally flawed' ruling on ObamaCare lawsuit

Sen. Ron JohnsonRonald (Ron) Harold JohnsonGOP senator: Buying Treasury bonds 'foolish' amid standoff over debt ceiling, taxes Internal poll shows Barnes with 29-point lead in Wisconsin Democratic Senate primary Wisconsin Democratic Senate candidate facing 4 felony charges MORE (R-Wis.) on Monday took his ObamaCare lawsuit to the 7th Circuit Court of Appeals, arguing a lower court's ruling that he lacked standing to challenge a portion of the law is "fatally flawed"

Johnston took the latest step in his lawsuit against the Obama administration, in which he argues the Office of Personnel Management (OPM) violated the law by allowing lawmakers and their "official" staff to continue receiving federal employee health subsidies when signing up for the newly created exchanges under ObamaCare. 

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The Wisconsin senator also announced he brought on attorney Paul Clement, a former Republican solicitor general who has argued in front of the Supreme Court more than 20 times, including a case earlier this year challenging the healthcare law's contraception mandate. 

In the 38-page appeal, Johnson's legal team urged the panel to grant the senator standing and force the lower court judge to rule on the merits of the case. 

"In even its most restrictive decisions, the Supreme Court has acknowledged that plaintiffs have standing when they are the object of the unlawful government action they challenge," according to the appeal. 

The Affordable Care Act requires members and their "official" staff to switch over to the new exchanges from their old Federal Employees Health Benefit Program. The OPM ruled congressional staff would continue to receive employer subsidies after determining the law was silent on whether they could continue. 

Federal Judge William Griesbach in July dismissed three of Johnson's arguments for why he suffered injury from the OPM decision: that the senator was burdened by the administrative costs; that the rule hurt his reputation with voters for accepting unwarranted benefits and that it violated his right to equal protection by treating him differently from his constituents.

Johnson's attorneys, however, argued the senator had suffered injury from the rule because the perceived "self-dealing" that led to the favorable subsidies might harm "his personal reputation and electoral prospect." 

The intent of the provision, Johnson argues, was to have members treated the same as their constituents and experience the flaws of the law firsthand, which is no longer the case. 

"It avoided charges that Members and their staff enjoyed Cadillac coverage, while constituents suffered with lemons in the form of inferior coverage under the ACA," according to the filing. 

The appeal also argued Johnson suffered injury from the "time-consuming and substantial" administrative burden of the provision. 

"We believe the district court erred when it found that I did not have standing," Johnson said in a separate statement from his office. "I look forward to resolving the standing issue so that the merits of my case can be heard."