[Congressional Record Volume 164, Number 139 (Tuesday, August 21, 2018)]
[Senate]
[Page S5778]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

  SA 3865. Mr. MANCHIN (for himself and Mr. Casey) submitted an 
amendment intended to be proposed to amendment SA 3695 proposed by Mr. 
Shelby to the bill H.R. 6157, making appropriations for the Department 
of Defense for the fiscal year ending September 30, 2019, and for other 
purposes; which was ordered to lie on the table; as follows:

       At the appropriate place in division B, insert the 
     following:

     SEC. __. SENSE OF THE SENATE REGARDING REPRESENTATION BY 
                   SENATE LEGAL COUNSEL IN TEXAS V. UNITED STATES.

       (a) Findings.--Congress finds the following:
       (1) Texas, Wisconsin, Alabama, Arkansas, Arizona, Florida, 
     Georgia, Indiana, Kansas, Louisiana, Paul LePage (Governor of 
     Maine), Mississippi (by and through Governor Phil Bryant), 
     Missouri, Nebraska, North Dakota, South Carolina, South 
     Dakota, Tennessee, Utah, and West Virginia have filed suit in 
     the United States District Court for the Northern District of 
     Texas, arguing that the Patient Protection and Affordable 
     Care Act (Public Law 111-148; 124 Stat. 119), is 
     unconstitutional and should be enjoined, by asserting that 
     the Act's requirement to maintain minimum essential coverage 
     (commonly known as the ``individual responsibility 
     provision'') in section 5000A(a) of the Internal Revenue Code 
     of 1986, is unconstitutional following the amendment of that 
     provision by the Act to provide for reconciliation pursuant 
     to titles II and V of the concurrent resolution on the budget 
     for fiscal year 2018 (Public Law 115-97) (commonly known as 
     the ``Tax Cuts and Jobs Act'').
       (2) These State and individual plaintiffs also seek to 
     strike down the entire Patient Protection and Affordable Care 
     Act as not severable from the individual responsibility 
     provision.
       (3) On June 7, 2018, the Department of Justice refused to 
     defend the constitutionality of the amended individual 
     responsibility provision, despite the well-established duty 
     of the Department to defend Federal statutes where reasonable 
     arguments can be made in their defense.
       (4) The Department of Justice not only refused to defend 
     the amended individual responsibility provision, but it 
     affirmatively argued that this provision is unconstitutional 
     and that the provisions of the Patient Protection and 
     Affordable Care Act guaranteeing issuance of insurance 
     coverage regardless of health status or pre-existing 
     conditions (commonly known as the ``guaranteed issue 
     provision''), sections 2702, 2704, and 2705(a) of the Public 
     Health Service Act (42 U.S.C. 300gg-1, 300gg-3, 300gg-4(a)), 
     and prohibiting discriminatory premium rates (commonly known 
     as the ``community rating provision''), sections 2701 and 
     2705(b) of the Public Health Service Act (42 U.S.C. 
     300gg(a)(1), 300gg-4(b)) must now be struck down as not 
     severable from the individual responsibility provision.
       (b) Sense of the Senate.--It is the sense of the Senate 
     that the Senate Legal Counsel should be authorized to 
     represent the Senate in Texas v. United States, No. 4:18-cv-
     00167-O (N.D. Tex.), including seeking to--
       (1) intervene as a party in the matter; and
       (2) defend all provisions of the Patient Protection and 
     Affordable Care Act, the amendments made by that Act to other 
     provisions of law, and any amendments to such provisions, 
     including the provisions ensuring affordable health coverage 
     for those with pre-existing conditions.
                                 ______