III 

115TH CONGRESS 

2D SESSION S. RES. 734 

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 

DECEMBER 19, 2018 

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 

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, 

and West Virginia have filed suit in the United States 


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•SRES 734 IS 

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 proviVerDate Sep 11 2014 06:32 Dec 20, 2018 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6300 E:\BILLS\SR734.IS SR734

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•SRES 734 IS 

sion’’), 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 

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 re5 lated proceedings; and 

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

8 by that Act to other provisions of law, and any 

9 amendments to such provisions, including the provi10 sions ensuring affordable health coverage for those 

11 with pre-existing conditions. 

Æ 


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