[Congressional Record Volume 166, Number 120 (Tuesday, June 30, 2020)]
[Senate]
[Pages S4040-S4041]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                         SUBMITTED RESOLUTIONS

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  SENATE RESOLUTION 638--EXPRESSING THE SENSE OF THE SENATE THAT THE 
    DEPARTMENT OF JUSTICE SHOULD DEFEND THE PATIENT PROTECTION AND 
AFFORDABLE CARE ACT (PUBLIC LAW 111-148 STAT. 119) AND HALT ITS EFFORTS 
TO REPEAL, SABOTAGE, OR UNDERMINE HEALTH CARE PROTECTIONS FOR MILLIONS 
   OF PEOPLE IN THE UNITED STATES IN THE MIDST OF THE PUBLIC HEALTH 
     EMERGENCY RELATING TO THE CORONAVIRUS DISEASE 2019 (COVID-19)

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

                              S. Res. 638

       Whereas more than 2,500,000 people in the United States 
     have tested positive for the Coronavirus Disease 2019 
     (referred to in this preamble as ``COVID-19''), with many 
     requiring costly health care;
       Whereas, prior to 2010, a diagnosis of COVID-19 likely 
     would have been considered a pre-existing medical condition;
       Whereas, in 2010, Congress passed and President Barack 
     Obama signed the Patient Protection and Affordable Care Act 
     (Public Law 111-148; 124 Stat. 119) (referred to in this 
     preamble as the ``ACA'');
       Whereas, prior to the enactment of the ACA, more than 
     133,000,000 nonelderly people in the United States with a 
     pre-existing medical condition were consistently charged 
     unaffordable premiums for health insurance coverage, were 
     subject to exorbitant out-of-pocket costs for care, faced 
     annual and lifetime limits on coverage, or were denied health 
     care coverage altogether;
       Whereas, prior to the enactment of the ACA, millions of 
     seniors with Medicare coverage encountered steep out-of-
     pocket prescription drug costs once those seniors hit a 
     threshold known as the Medicare ``donut

[[Page S4041]]

     hole'', and since the donut hole began closing in 2010, 
     millions of Medicare beneficiaries have saved billions of 
     dollars on prescription drug costs;
       Whereas, on February 26, 2018, 18 State attorneys general 
     and 2 Governors filed a lawsuit in the United States District 
     Court for the Northern District of Texas, Texas v. United 
     States, No. 4:18-cv-00167-O (N.D. Tex.) (referred to in this 
     preamble as ``Texas v. United States''), arguing that the 
     requirement of the ACA to maintain minimum essential coverage 
     is unconstitutional;
       Whereas the State and individual plaintiffs in Texas v. 
     United States also seek to strike down the entire ACA as not 
     severable from the requirement to maintain minimum essential 
     coverage;
       Whereas, despite the well-established duty of the 
     Department of Justice to defend Federal statutes where 
     reasonable arguments can made in their defense, Attorney 
     General Jefferson Sessions announced in a letter to Congress 
     on June 7, 2018, that the Department of Justice would not 
     defend the constitutionality of the minimum essential 
     coverage provision;
       Whereas, in the June 7, 2018, letter to Congress, then 
     Attorney General Jefferson Sessions announced that the 
     Department of Justice would instead argue that provisions 
     protecting individuals with pre-existing medical conditions 
     (specifically the provisions commonly known as ``community 
     rating'' and ``guaranteed issue'') are not severable from the 
     minimum essential coverage provision and ought to be 
     invalidated;
       Whereas the United States District Court for the Northern 
     District of Texas issued an order on December 14, 2018, that 
     struck down the ACA in its entirety, including protections 
     for individuals with pre-existing conditions, based on the 
     ruling of that court that the requirement to maintain minimum 
     essential coverage was unconstitutional;
       Whereas, on March 25, 2019, the Department of Justice, in a 
     letter to the United States Court of Appeals for the Fifth 
     Circuit, changed its position and announced that the central 
     holding of the United States District Court for the Northern 
     District of Texas should be upheld and the entire ACA should 
     be declared inseverable from the minimum essential coverage 
     provision and struck down;
       Whereas, on December 18, 2019, the United States Court of 
     Appeals for the Fifth Circuit in Texas v. United States, 945 
     F.3d 355 (5th Cir. 2019), upheld the decision of the United 
     States District Court for the Northern District of Texas 
     striking down the minimum essential coverage provision, but 
     vacated the decision on severability and remanded the case to 
     the United States District Court for the Northern District of 
     Texas;
       Whereas the Supreme Court of the United States granted, on 
     Monday, March 2, 2020, a petition for a writ of certiorari 
     filed by 21 State attorneys general and will review, in 
     California v. Texas, No. 19-804 (U.S.) and Texas v. 
     California, No. 19-19109 (U.S.), the decisions of the United 
     States Court of Appeals for the Fifth Circuit in Texas v. 
     United States, 945 F.3d 355 (5th Cir. 2019);
       Whereas, if the ruling of the United States District Court 
     for the Northern District of Texas in Texas v. United States 
     is upheld by the Supreme Court of the United States, seniors 
     enrolled in Medicare would face the reopening of the Medicare 
     donut hole and be subject to billions of dollars in new 
     prescription drug costs;
       Whereas, as of June 2020, 37 States and the District of 
     Columbia have expanded or voted to expand Medicaid to 
     individuals with incomes below 138 percent of the Federal 
     poverty level, providing health coverage to more than 
     12,000,000 newly eligible people;
       Whereas, if the ruling of the United States District Court 
     for the Northern District of Texas in Texas v. United States 
     is upheld by the Supreme Court of the United States, the 
     millions of individuals and families who receive coverage 
     from Medicaid could lose access to health care coverage 
     altogether;
       Whereas, as of April 2020, more than 7,200,000 consumers 
     who purchase individual health insurance are eligible for tax 
     credits to subsidize the cost of premiums and assistance to 
     minimize out-of-pocket health care costs such as copays and 
     deductibles, which has made individual health insurance 
     coverage affordable for millions of people in the United 
     States for the first time;
       Whereas, if the ruling of the United States District Court 
     for the Northern District of Texas in Texas v. United States 
     is upheld by the Supreme Court of the United States--
       (1) the individual health insurance marketplaces 
     established under the ACA would be eliminated;
       (2) the millions of people in the United States who buy 
     health insurance on those marketplaces could lose coverage; 
     and
       (3) the premium expenses for individual health insurance 
     would increase exorbitantly;

       Whereas, if the ruling of the United States District Court 
     for the Northern District of Texas in Texas v. United States 
     is upheld by the Supreme Court of the United States, the 
     permanent reauthorization of the Indian Health Care 
     Improvement Act (25 U.S.C. 1601 et seq.) would also be 
     repealed and millions of American Indians and Alaska Natives 
     would have less access to health services, less options for 
     care, and worsened health disparities;
       Whereas, if the ruling of the United States District Court 
     for the Northern District of Texas in Texas v. United States 
     is upheld by the Supreme Court of the United States, the 
     nearly 500,000 veterans who have gained health insurance 
     coverage, including the nearly 1 in 10 veterans that have 
     gained coverage through Medicaid expansion, would lose access 
     to care;
       Whereas, if the ruling of the United States District Court 
     for the Northern District of Texas in Texas v. United States 
     is upheld by the Supreme Court of the United States, people 
     in the United States would lose numerous consumer 
     protections, including the requirements that--
       (1) plans offer preventive care without cost-sharing;
       (2) young adults can remain on their parents' insurance 
     plan until age 26;
       (3) many health insurance plans offer a comprehensive set 
     of essential health benefits such as maternity care, 
     addiction treatment, and prescription drug coverage;
       (4) individuals cannot be denied coverage due to, and 
     coverage cannot be medically underwritten to reflect, gender; 
     and
       (5) individuals cannot be denied coverage due to, and 
     coverage cannot be medically underwritten to reflect, a pre-
     existing medical condition;

       Whereas, on March 11, 2020, the World Health Organization 
     declared the outbreak of COVID-19 a pandemic;
       Whereas, as of June 30, 2020, more than 2,545,000 people in 
     the United States have been diagnosed with COVID-19;
       Whereas, during the ongoing COVID-19 pandemic, millions of 
     people in the United States have relied on the ACA for 
     coverage, health care access, and diagnoses;
       Whereas, as of June 25, 2020, more than 30,000,000 people 
     in the United States have filed for unemployment benefits;
       Whereas a ruling by the Supreme Court of the United States 
     that the ACA must be struck down would cost the United States 
     an estimated 3,000,000 jobs at a time when national 
     unemployment as a result of the global pandemic exceeds 13 
     percent;
       Whereas, in the midst of a global pandemic, the Department 
     of Justice is continuing to pursue a strategy to have the 
     ruling of the United States District Court for the Northern 
     District of Texas in Texas v. United States upheld by the 
     Supreme Court of the United States, which would result in 
     health care coverage being torn away from millions of people 
     in the United States;
       Whereas people in the United States who are facing the 
     economic and physical risks of a global pandemic cannot also 
     face an ongoing threat that a ruling by the Supreme Court of 
     the United States could invalidate their health care 
     coverage; and
       Whereas dismantling the health care system in the United 
     States in the midst of a global pandemic, when millions of 
     people in the United States have lost work and the ACA 
     provides an alternative to employer-based health insurance, 
     would trigger chaos: Now, therefore, be it
       Resolved, That it is the sense of the Senate that the 
     Department of Justice should--
       (1) defend the Patient Protection and Affordable Care Act 
     (Public Law 111-148; 124 Stat. 119) rather than doubling down 
     on its position with respect to the decision of the United 
     States District Court for the Northern District of Texas in 
     Texas v. United States, No. 4:18-cv-00167-O (N.D. Tex.); and
       (2) protect the millions of people in the United States who 
     newly gained health insurance coverage since 2014 and rely on 
     that coverage in the midst of the public health emergency 
     relating to the Coronavirus Disease 2019 (COVID-19).

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