[Congressional Record Volume 165, Number 39 (Tuesday, March 5, 2019)]
[Senate]
[Pages S1661-S1662]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




   SENATE RESOLUTION 94--EXPRESSING THE SENSE OF THE SENATE THAT THE 
  DEPARTMENT OF JUSTICE SHOULD PROTECT INDIVIDUALS WITH PRE-EXISTING 
 MEDICAL CONDITIONS BY DEFENDING THE PATIENT PROTECTION AND AFFORDABLE 
CARE ACT (PUBLIC LAW 111-148; 124 STAT. 119) IN TEXAS V. UNITED STATES, 
   NO. 4:18-CV-00167-O (N.D. TEX.), IN WHICH THE PLAINTIFFS SEEK TO 
   INVALIDATE PROTECTIONS FOR INDIVIDUALS WITH PRE-EXISTING MEDICAL 
                               CONDITIONS

  Ms. HIRONO (for herself, Mr. Manchin, Ms. Klobuchar, Ms. Duckworth, 
Mr. Whitehouse, Mr. Tester, Ms. Hassan, Ms. Baldwin, Mr. Merkley, Mr. 
Jones, Ms. Sinema, Mr. Durbin, Mr. Blumenthal, Mrs. Feinstein, Mr. 
Coons, Ms. Rosen, Mr. King, Mr. Leahy, Ms. Smith, Mr. Brown, Ms. Cortez 
Masto, Mrs. Shaheen, Ms. Harris, Mr. Booker, Mr. Reed, Mr. Schumer, Ms. 
Warren, Mr. Markey, Mr. Menendez, Mr. Bennet, Ms. Stabenow, Mr. Wyden, 
Mrs. Gillibrand, Mr. Van Hollen, Mr. Casey, Mr. Heinrich, Mr. Kaine, 
Mrs. Murray, Mr. Murphy, Mr. Udall, and Mr. Warner) submitted the 
following resolution; which was referred to the Committee on the 
Judiciary:

                               S. Res. 94

       Whereas, in 2010, Congress passed and President Barack 
     Obama signed the Patient Protection and Affordable Care Act 
     (Public Law 111-148; 124 Stat. 119) (in this preamble 
     referred to as the ``ACA'');
       Whereas, prior to the enactment of the ACA, individuals 
     with pre-existing medical conditions were routinely denied 
     health insurance coverage, charged exorbitant rates for 
     health insurance coverage, exposed to unreasonable out-of-
     pocket costs for health care, or subject to lifetime limits 
     on health insurance coverage;
       Whereas the ACA instituted comprehensive protections for 
     individuals with pre-existing medical conditions, including--
       (1) the protection commonly known as ``guaranteed issue'', 
     which requires health insurance companies to issue a health 
     plan to any applicant regardless of health status or other 
     factors, under section 2702 of the Public Health Service Act 
     (42 U.S.C. 300gg-1);
       (2) the protection commonly known as ``community rating'', 
     which prohibits health insurance companies from varying 
     premiums within a geographical area based on gender or health 
     status and limits the ability of health insurance companies 
     to vary premiums based on age, under section 2701 of the 
     Public Health Service Act (42 U.S.C. 300gg); and
       (3) the prohibition on discrimination based on health 
     status, which prohibits excluding from a health plan benefits 
     for pre-existing medical conditions or establishing 
     eligibility rules based on pre-existing medical conditions, 
     under sections 2704 and 2705(a) of the Public Health Service 
     Act (42 U.S.C. 300gg-3, 300gg-4(a));

[[Page S1662]]

       Whereas, on June 7, 2018, pursuant to section 530D of title 
     28, United States Code, then Attorney General Jefferson 
     Sessions, under the direction of the President, notified 
     Congress that the Department of Justice--
       (1) would not defend the constitutionality of the 
     requirement to maintain minimum essential coverage under 
     section 5000A of the Internal Revenue Code of 1986, as added 
     by the ACA; and
       (2) would argue that certain provisions of the ACA, 
     including the provisions protecting an estimated 133,000,000 
     individuals in the United States with pre-existing medical 
     conditions, are inseverable from the requirement to maintain 
     minimum essential coverage;
       Whereas the United States District Court for the Northern 
     District of Texas--
       (1) issued an order declaring that--
       (A) the requirement to maintain minimum essential coverage 
     is unconstitutional; and
       (B) the remaining provisions of the ACA, including 
     protections for individuals with pre-existing medical 
     conditions, are inseverable from that requirement; and
       (2) invalidated the remaining provisions of the ACA;
       Whereas the decision of the United States District Court 
     for the Northern District of Texas was stayed and is pending 
     appeal before the United States Court of Appeals for the 
     Fifth Circuit;
       Whereas the refusal of the Department of Justice to defend 
     the ACA, as even then Attorney General Sessions acknowledged 
     in his notice to Congress, contravened the Executive Branch's 
     ``longstanding tradition of defending the constitutionality 
     of duly enacted statutes if reasonable arguments can be made 
     in their defense'';
       Whereas reasonable arguments can be made in defense of the 
     ACA, as evidenced by an amicus brief filed by legal experts, 
     including experts who supported other legal challenges to the 
     ACA; and
       Whereas, by arguing that the guaranteed issue, community 
     rating, and other protections prohibiting discrimination are 
     inseverable from the remaining provisions of the ACA and 
     therefore the remaining provisions of the ACA are invalid, 
     the Department of Justice is risking vital protections for 
     the estimated 133,000,000 individuals in the United States 
     with pre-existing medical conditions: Now, therefore, be it
       Resolved, That it is the sense of the Senate that the 
     Department of Justice should protect individuals with pre-
     existing medical conditions, including by reversing its 
     position and defending the critically important provisions of 
     the Patient Protection and Affordable Care Act (Public Law 
     111-148; 124 Stat. 119) in Texas v. United States, No. 4:18-
     cv-00167-O (N.D. Tex.).

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