III 

116TH CONGRESS 

2D SESSION S. RES. 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; 124 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). 

IN THE SENATE OF THE UNITED STATES 

JUNE 30, 2020 

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 

RESOLUTION 

Expressing the sense of the Senate that the Department 

of Justice should defend the Patient Protection and Affordable Care Act (Public Law 111–148; 124 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 emerVerDate Sep 11 2014 02:19 Jul 01, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6652 E:\BILLS\SR638.IS SR638

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•SRES 638 IS 

gency relating to the Coronavirus Disease 2019 

(COVID–19). 

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-ofpocket prescription drug costs once those seniors hit a 

threshold known as the Medicare ‘‘donut 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.) (reVerDate Sep 11 2014 02:19 Jul 01, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6300 E:\BILLS\SR638.IS SR638

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•SRES 638 IS 

ferred 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 be 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 


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•SRES 638 IS 

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; 


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•SRES 638 IS 

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; 


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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; 


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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 

1 Resolved, That it is the sense of the Senate that the 

2 Department of Justice should— 


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•SRES 638 IS 

1 (1) defend the Patient Protection and Afford2 able Care Act (Public Law 111–148; 124 Stat. 119) 

3 rather than doubling down on its position with re4 spect to the decision of the United States District 

5 Court for the Northern District of Texas in Texas 

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

7 Tex.); and 

8 (2) protect the millions of people in the United 

9 States who newly gained health insurance coverage 

10 since 2014 and rely on that coverage in the midst 

11 of the public health emergency relating to the 

12 Coronavirus Disease 2019 (COVID–19). 

Æ 


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