Sen. Ron Johnson, R-Wis. (AP Photo/J. Scott Applewhite, File)

(Bloomberg) — U.S. Sen. Ron Johnson’s lawsuit challenging a Patient Protection and Affordable Care Act provision subsidizing health insurance for members of Congress and their aides should be thrown out because the lawmaker can’t show the measure has hurt him or his staff, government lawyers told a federal judge.

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Johnson, a first-term Republican from Wisconsin, sued President Barack Obama’s administration earlier this year, arguing that the subsidy treats the legislators and their employees differently than most Americans who work for private employers, violating U.S. Constitution’s guarantee of equal protection under the law.

The challenged provision is related to the president’s 2010 Patient Protection and Affordable Care Act, that opponents argue is an overreach of government power. The Republican-dominated House of Representatives has tried more than 50 times to repeal all or parts of the law, before and after it was upheld by the U.S. Supreme Court.

Before today’s hearing hearing in federal court in Green Bay, Wisconsin, Johnson told reporters he didn’t believe the measure could be reversed and that the better strategy was to chip away at it.

“That’s how to win a political argument,” he said.

“Americans hate it when elected officials are exempt from laws,” he added after court.

‘Concrete’ injury

Lawyers for the administration have asked U.S. District Judge William Griesbach to dismiss the case filed against the U.S. Office of Personnel Management for a lack of “concrete” injury. They also said it wasn’t for the courts to weigh in on political debates.

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In court, lawyers for the federal government told Griesbach that Johnson and his staff had no right to pursue the case as they hadn’t been injured by the regulation.

“They’re not being forced to accept any benefits they do not want,” Justice Department attorney James Luh told the judge. The senator, he said, “must show some actual injury, financial or non-financial.”

Richard Esenberg, a lawyer for the senator, countered that the personnel office overstepped its authority when it wrote the rule under the Affordable Care Act that put legislators and their staff on different footing from those who work for private employers.

‘Same position’

“Congress made a choice when it adopted the Affordable Care Act that any member of Congress and their staffs would be in the same position as millions of Americans who lost their employer health coverage,” and subsequently were compelled by the ACA to buy coverage on a state or federal government-run marketplace, known as exchanges, Esenberg said.

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When the personnel office effectively amended the law, it not only overreached, it injured Johnson’s reputation, the lawyer said.

“Millions of Americans are upset by this workaround of the Affordable Care Act,” said Esenberg. “Members of Congress have to go to their constituents and explain themselves.”

Luh, the Justice Department lawyer, called that injury claim “speculation.”

Griesbach didn’t hand down an immediate ruling on the government’s dismissal bid.

The Supreme Court last month curbed an Affordable Care Act provision requiring closely held corporations to provide contraception insurance coverage where the owners of those businesses have a religious objection to doing so.

The case is Johnson V. U.S. Office of Personnel Management, 14-cv-09, U.S. District Court, Eastern District of Wisconsin (Green Bay).

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