Congress itself implicated in new Obamacare scandal

By Judicial Watch

They didn’t fess up willingly. But after we applied the appropriate pressure, government officials responsible for operating the Washington D.C. Obamacare “Small Business Exchange” have finally admitted that Congress is taking advantage of health benefits its members and staff are not entitled to claim.

At least 12,359 members of Congress, congressional staffers, and their spouses and dependents currently purchase health insurance in D.C.’s Small Business Exchange even though Congress far exceeds D.C. law’s 50-employee limit for participating in the exchange. That’s why we filed a lawsuit in October on behalf of Kirby Vining, a D.C. taxpayer, against the D.C. Health Exchange Authority. In a court filing, the D.C. government conceded that, under D.C. law, the U.S. Congress is not permitted to obtain insurance through the District’s Small Business Exchange. But members of the political class, true to form, do not believe the rules apply to them. How do we know?

Our lawsuit cites applications filed by the U.S. House of Representatives and Senate with the D.C. Exchange Authority. The applications, which were obtained through a Freedom of Information Act (FOIA) request, show that the House and Senate claimed to have only 45 employees each. They also show that the House and Senate attested to having “50 or fewer full-time equivalent employees.” Congress employs upwards of 20,000 people. D.C. law limits participation in the exchange to small businesses having fewer than 50 full-time employees. The applications also falsely state that the House and Senate are “local/state governments.” The “electronic signature” section of the application includes the following language:

I’ve provided true and correct information to all the questions on this form to the best of my knowledge. I know that if I’m not truthful, there may be a penalty.

The actual names of the signatories were blacked out by the D.C. Exchange in the documents Judicial Watch obtained. If nothing else, the political class knows how to cover its tracks. But on November 7, 2014, the Exchange Authority filed a Motion to Dismiss in which it clearly admits that the law does not allow Congress to participate in its Small Business Exchange. Here’s the key paragraph:

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.” [Emphasis added]

But just because the D.C. government now admits it knows what’s right doesn’t mean it intends to do what’s right. Remarkably, District officials now argue that federal bureaucrats in the Office of Personnel Management (OPM) could override the District’s laws (and, implicitly the Affordable Care Act). As our attorneys point out in the JW response, Congress plainly knows how to block or reverse D.C. laws. The D.C. law that created the Small Business Exchange is completely consistent with, not preempted by, federal law. And if it is “preempted,” it can’t be undone by a bureaucrat ignoring the Affordable Care Act at the Office of Personnel Management. This Obama power grab is not constitutional and cannot be used to change federal law or “force” a local government to ignore the rule of law. Unfortunately, from the D.C. government’s point of view, this case is not about logic, reason and honesty.

We are asking the court, on behalf of Mr. Vining, to:

(a) declare the House and the Senate’s participation in the Small Business Exchange to be unlawful; (b) enjoin Defendants from continuing to allow the House and the Senate to participate in the Small Business Exchange, or at a minimum, from expending further taxpayer funds on the House and Senate’s participation in the Small Business Exchange; (c) issue a writ of mandamus ordering [District officials] to deny the House and the Senate further participation in the Small Business Exchange . . .”

We are pushing ahead even as the opposing side pushes back. On December 12, 2014, we filed an Opposition to the Motion to Dismiss on behalf of Vining. The D.C. Exchange then filed a Reply to the Opposition on December 22, 2014. So, the legal battle continues to rage. And you can rest assured that your JW will continue to go to toe-to-toe with the D.C. government that is undermining the rule of law. In the meantime, you might want to check with your local congressman and senators about what they think about the possible fraud now being committed to provide illegal health insurance to Congress. You can point them to our documents and demand accountability.

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