III 

116TH CONGRESS 

1ST SESSION S. RES. 18 

Authorizing the Senate Legal Counsel to represent the Senate in Texas 

v. United States, No. 4:18–cv–00167–O (N.D. Tex.). 

IN THE SENATE OF THE UNITED STATES 

JANUARY 15, 2019 

Mr. MANCHIN (for himself, Ms. ROSEN, Mr. CASEY, Mr. TESTER, Mr. 

BROWN, Ms. CORTEZ MASTO, Mr. WARNER, Mr. VAN HOLLEN, Ms. 

BALDWIN, Ms. CANTWELL, Mr. WHITEHOUSE, Mr. REED, Ms. HARRIS, 

Ms. HIRONO, Ms. DUCKWORTH, Mr. WYDEN, Ms. HASSAN, Mr. KING, 

Mr. MARKEY, Mr. SCHUMER, Mr. LEAHY, Mrs. MURRAY, Mr. UDALL, 

Mr. DURBIN, Ms. SMITH, Mr. BOOKER, Mr. BLUMENTHAL, Mr. BENNET, 

Ms. KLOBUCHAR, Mr. COONS, Mr. SCHATZ, Mr. MENENDEZ, Mr. JONES, 

Mr. HEINRICH, Ms. STABENOW, Ms. WARREN, Mr. MURPHY, Mr. KAINE, 

Mr. SANDERS, Mrs. GILLIBRAND, Mrs. SHAHEEN, Mr. MERKLEY, Mr. 

PETERS, Mr. CARDIN, Mrs. FEINSTEIN, Ms. SINEMA, and Mr. CARPER) 

submitted the following resolution; which was referred to the Committee 

on Rules and Administration 

RESOLUTION 

Authorizing the Senate Legal Counsel to represent the Senate in Texas v. United States, No. 4:18–cv–00167–O 

(N.D. Tex.). 

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, 

West Virginia, and individual plaintiffs have filed suit in 


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2 

•SRES 18 IS 

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) and the Health Care and Education Reconciliation 

Act of 2010 (Public Law 111–152; 124 Stat. 1029) are 

unconstitutional and should be enjoined, by asserting 

that the requirement under those Acts to maintain minimum essential coverage (commonly known as the ‘‘individual responsibility provision’’) in section 5000A 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; 131 Stat. 2054) (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 


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•SRES 18 IS 

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 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 

1 Resolved, That the Senate Legal Counsel is author2 ized to represent the Senate in Texas v. United States, 

3 No. 4:18–cv–00167–O (N.D. Tex.), including seeking to— 

4 (1) intervene as a party in the matter and any 

5 appellate or related proceedings; and 

6 (2) defend all provisions of the Patient Protec7 tion and Affordable Care Act and the Health Care 

8 and Education Reconciliation Act of 2010, the 

9 amendments made by those Acts to other provisions 

10 of law, and any amendments to such provisions, in11 cluding the provisions ensuring affordable health 

12 coverage for those with pre-existing conditions. 

Æ 


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