Title: A 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 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).
Policy area: Health

Summary:
This resolution expresses the sense of the Senate that the Department of Justice (DOJ) should defend the Patient Protection and Affordable Care Act (PPACA) in ongoing litigation. Currently, DOJ supports the ruling by the U.S. Court of Appeals for the Fifth Circuit that upheld a district court ruling that certain provisions of the PPACA are not severable from the remainder of the Act and therefore that the entire law is invalid. The Fifth Circuit's ruling is currently pending appeal before the U.S. Supreme Court.

[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. Res. 638 Introduced in Senate (IS)]

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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 emergency 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-of-pocket 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.) 
        (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 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 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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