A federal appeals court has rejected Wisconsin Sen. Ron Johnson's effort to stop members of Congress and their staffs from getting health insurance subsidies under President Barack Obama's 2010 healthcare law.
The 7th U.S. Circuit Court of Appeals in Chicago said Johnson lacked legal standing to sue because he did not show he had been injured by the "special treatment" he claimed Obamacare gave senators, representatives and their staff.
Tuesday's decision by a unanimous three-judge panel upheld a July 2014 ruling by U.S. District Judge William Griesbach in Green Bay, Wisconsin.
Johnson, a Republican, said he will review the decision before deciding whether to appeal.
"With this decision today, another executive action by the administration will go unchallenged," he said in a statement.
Johnson's lawsuit is one of many challenging part or all of Obamacare.
The senator had opposed the federal government's authority to make employer contributions even when lawmakers and staff bought coverage via online exchanges created by Obamacare.
Johnson claimed he was injured because the law forced him to choose which staff were entitled to subsidies, deprived him of equal treatment with Wisconsin voters, and hurt his reputation by requiring him to accept benefits he considered illegal and which his constituents could not get.
Writing for the appeals court, however, Circuit Judge Joel Flaum said the parts of the law to which Johnson objected were unrelated to the alleged administrative burden they created, and that "the mere allegation of unequal treatment" did not create an injury.
Flaum also said voters' perceptions were not relevant.
"Respectfully, we do not see how Senator Johnson's reputation could be sullied or his electability diminished by being offered, against his will, a benefit that he then decided to refuse," wrote Flaum, who was appointed to the appeals court by President Ronald Reagan.
The 7th Circuit rejected reasoning behind a 1994 decision in which the federal appeals court in Washington, D.C. said Ohio Rep. John Boehner, now House speaker, had standing to challenge a cost-of-living pay adjustment on the ground that it violated the Constitution.
Flaum said that case also differed because the pay increase was automatic, while Johnson could refuse the subsidies.
The U.S. Supreme Court narrowly upheld Obamacare in 2012. It is expected to decide by the end of June whether several million low and moderate income people in 34 U.S. states that did not set up their own insurance exchanges are entitled to subsidies.
(Reporting by Jonathan Stempel in New York; editing by Andrew Hay)