Today in the Ad Hoc Legal War Against the ACA

The arguments don’t get any better:

That leaves a lawsuit entitled Johnson vs. U.S. Office of Payroll Management holding the crown. On Tuesday, however, the Chicago-based U.S. Court of Appeals for the 7th Circuit tossed the case with a horselaugh, so its reign may be ending.

The lead plaintiff in the case is Sen. Ron Johnson (R-Wis.), a fierce opponent of the ACA. His novel argument is that the law denies him his constitutional right to equal protection because it offers him a benefit — to wit, the same insurance subsidy enjoyed by most other Americans who get health coverage from their employer — that would cause him “reputational and electoral injury” if he accepts it.

Judge Joel M. Flaum, writing for a unanimous three-judge panel of the court, rightly considered the argument, which is that Johnson is injured by this benefit, bizarre. If he’s so concerned about taking a benefit that he attacked while running for office, Flaum wrote, why doesn’t he just turn it down? “We do not see how Sen. Johnson’s reputation could be sullied … by being offered, against his will, a benefit that he then decided to refuse.”

Once the Supreme Court denies cert, maybe Johnson can hire Larry Tribe to argue that the ACA violates the takings clause and nondelegation doctrine. If I understand Tribe’s most recent arguments it’s hard to identify parts of the U.S. Code that don’t, so why not? And if that doesn’t work, three words: liberty of contract.