D.C. Government Concedes Law Does Not Allow for Congress to Obtain Obamacare in “Small Business Exchange”

District Government Says Its Law Has Been Overridden By Office of Personnel Management

(Washington, DC) – Judicial Watch today announced that the District of Columbia government conceded in a court filing that, under D.C. law, the U. S. Congress could not obtain insurance through the District’s “Small Business Exchange.” The revelation comes in a taxpayer lawsuit filed by Judicial Watch against the District of Columbia Health Exchange Authority regarding its decision to allow Congress to participate in the Authority’s Obamacare Small Business Exchange.

The lawsuit, which names the District of Colombia Health Benefit Exchange Authority and its officials as defendants, was filed on October 15, 2014, on behalf of D.C. taxpayer Kirby Vining in the Superior Court of the District of Columbia (Kirby Vining v. Executive Board of the District of Columbia Health Benefit Exchange Authority (No. 14-0006496)). D.C. law limits participation in the exchange to small businesses employing 50 or fewer full-time employees. Vining, a District of Columbia resident since 1986, seeks to prevent the Exchange Authority from allowing at least 12,359 members of Congress, congressional staffers, their spouses and dependents to purchase health insurance in D.C.’s Small Business Exchange.

On November 7, 2014, the Exchange Authority filed a Motion to Dismiss. In its Motion, the District government concedes that the law does not allow Congress to participate in its Small Business Exchange:

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 the District argues that the Office of Personnel Management (OPM) could override the District’s laws (and, implicitly the Affordable Care Act). Judicial Watch lawyers, arguing on behalf of Mr. Vining, responded:

Defendants argue that a determination made by the director of the federal Office of Personnel Management…can overturn a law enacted by the D.C. Council. Not only is Defendants’ argument at odds with the well-established doctrine of preemption, but 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 …

When Congress applied to participate in the Small Business Exchange, representatives falsely asserted that the House and the Senate each employ 50 or fewer full-time employees … Defendants had to have been aware of these false statements. Not only is it obvious that Congress, with its 535 members, employs more than 50 people, but Defendants’ own guidelines require verification of employer information.

On December 12, 2014, Judicial Watch 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.

Judicial Watch’s litigation cites applications filed by the U.S. House of Representatives and Senate with the D.C. Exchange Authority. The applications, which were obtained from the D.C. Exchange Authority through a Judicial Watch Freedom of Information Act (FOIA) request, show 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. 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.

“It may be a surprise to D.C. taxpayers that their government thinks a federal bureaucrat can rewrite both D.C. and federal law,” said Judicial Watch President Tom Fitton. “Members of Congress are relying on fraudulent application information to obtain insurance in D.C. under Obamacare. It is shameful for D.C. government officials to knowingly participate in a costly and unfair sleight of hand to misuse local tax dollars to help politicians in Congress illegally obtain insurance.”