III 

116TH CONGRESS 

1ST SESSION S. RES. 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. 

IN THE SENATE OF THE UNITED STATES 

MARCH 5, 2019 

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, and Mr. UDALL) 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 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. 


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•SRES 94 IS 

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 outof-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)); 


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•SRES 94 IS 

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 


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•SRES 94 IS 

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 

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

2 Department of Justice should protect individuals with pre3 existing medical conditions, including by reversing its posi4 tion and defending the critically important provisions of 

5 the Patient Protection and Affordable Care Act (Public 

6 Law 111–148; 124 Stat. 119) in Texas v. United States, 

7 No. 4:18–cv–00167–O (N.D. Tex.). 

Æ 


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