Update: Judicial Watch Lawsuit Against ObamaCare Congressional Exemption


By Hadley Heath

Last year, government watchdog organization Judicial Watch filed a lawsuit against the District of Columbia Health Exchange Authority for its decision to allow Members of Congress and their staff (12,359 people in all) to obtain health insurance through the DC small business exchange. It's obvious that Congress is not a small business, but the DC exchange made a special exemption, a move that could be illegal. 

This lawsuit is caught up in legal gymnastics. 

First, the defense that the DC government used wasn't a defense at all. Basically, the health exchange passed the buck to the Office of Personnel Management, which they say overrode their decision-making and allowed for the special exemption for Congress. When it comes to the categorization of Congress as a "small business," the DC government, in its Motion to Dismiss the case, seems to agree with the plaintiff:

The Health Benefit Exchange Authority was created by the District of Columbia Council under the ACA, and authorized to operate a SHOP Exchange [“Small Business Health Options Program”] in the District through which qualified small businesses could access health coverage for employees. By limiting the SHOP Exchange to “small employers” with an “average of not more than 50 employees during the preceding calendar year,” D.C. Code 31-3171.01 prevents Congressional enrollment in the D.C. Shop Exchange because Congress does not fall within the definition of “small employer.”

But then, the lower court granted the dismissal. Why? Because the plaintiff, a DC resident and taxpayer, lacks standing to challenge the decision (according to the court). The court points out that no local funds were used to create the exchange in question, and therefore the local taxpayer lacks standing. Like I said, legal gymnastics.

The case is on appeal.

In the meantime, not all Members of Congress are content to watch this injustice take place: Senator David Vitter has been a crusader for fairness and has attempted on multiple occasions to have ObamaCare applied equally to Members and Congressional staff, just as it is applied to their constituents who work outside of Congress. He has launched an investigation into Congressional enrollment in ObamaCare, which so far has not been welcomed by his colleagues


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