[Congressional Record Volume 164, Number 200 (Wednesday, December 19, 2018)]
[Senate]
[Page S7931]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




    SENATE RESOLUTION 734--AUTHORIZING THE SENATE LEGAL COUNSEL TO 
  REPRESENT THE SENATE IN TEXAS V. UNITED STATES, NO. 4:18-CV-00167-O 
                              (N.D. TEX.)

  Mr. MANCHIN (for himself, Mr. Schumer, Mrs. Murray, Mr. Wyden, Mr. 
Jones, Mr. Carper, Ms. Baldwin, Mr. Brown, Mr. Kaine, Mr. Udall, Mr. 
Durbin, Mr. Reed, Mr. Van Hollen, Mr. Sanders, Mr. Heinrich, Mr. 
Bennet, Ms. Klobuchar, Ms. Smith, Mr. Tester, Mrs. McCaskill, Ms. 
Hirono, Ms. Warren, Mr. Donnelly, Mr. Casey, Mr. Murphy, Ms. Cortez 
Masto, Mr. King, Mr. Leahy, Ms. Duckworth, Mr. Whitehouse, Mr. Markey, 
Mr. Blumenthal, Mrs. Shaheen, Mr. Cardin, Mr. Menendez, Mr. Booker, Ms. 
Hassan, Ms. Harris, Ms. Stabenow, Mr. Peters, and Mr. Merkley) 
submitted the following resolution; which was referred to the Committee 
on Rules and Administration:

                              S. Res. 734

       Whereas 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'');
       Whereas 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;
       Whereas, 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;
       Whereas 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; and
       Whereas the district court in Texas v. United States, No. 
     4:18-cv-00167-O (N.D. Tex.) issued an order on December 14, 
     2018 declaring that the individual responsibility provision 
     in section 5000A(a) of the Internal Revenue Code of 1986 is 
     unconstitutional and that all the provisions of the Patient 
     Protection and Affordable Care Act are not severable and 
     therefore are invalid: Now, therefore, be it
       Resolved, That the Senate Legal Counsel is 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 related 
     proceedings; 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.

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