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).

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 Ju- diciary RESOLUTION Expressing the sense of the Senate that the Department of Justice should defend the Patient Protection and Af- fordable 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 emer- VerDate Sep 11 2014 02:19 Jul 01, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6652 E:\BILLS\SR638.IS SR638 pamtmann on DSKBC07HB2PROD with BILLS 2 •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 condi- tion; 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 de- nied health care coverage altogether; Whereas, prior to the enactment of the ACA, millions of sen- iors 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 Medi- care beneficiaries have saved billions of dollars on pre- scription drug costs; Whereas, on February 26, 2018, 18 State attorneys general and 2 Governors filed a lawsuit in the United States Dis- trict Court for the Northern District of Texas, Texas v. United States, No. 4:18–cv–00167–O (N.D. Tex.) (re- VerDate Sep 11 2014 02:19 Jul 01, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6300 E:\BILLS\SR638.IS SR638 pamtmann on DSKBC07HB2PROD with BILLS 3 •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 Gen- eral 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 Attor- ney General Jefferson Sessions announced that the De- partment of Justice would instead argue that provisions protecting individuals with pre-existing medical condi- tions (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 pro- tections for individuals with pre-existing conditions, based on the ruling of that court that the requirement to main- tain 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 VerDate Sep 11 2014 19:57 Jul 02, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6300 E:\BILLS\SR638.IS SR638 pamtmann on DSKBC07HB2PROD with BILLS 4 •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 pro- vision, but vacated the decision on severability and re- manded 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 certio- rari 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 dol- lars in new prescription drug costs; Whereas, as of June 2020, 37 States and the District of Co- lumbia have expanded or voted to expand Medicaid to in- dividuals with incomes below 138 percent of the Federal poverty level, providing health coverage to more than 12,000,000 newly eligible people; VerDate Sep 11 2014 02:19 Jul 01, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6300 E:\BILLS\SR638.IS SR638 pamtmann on DSKBC07HB2PROD with BILLS 5 •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 assist- ance 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 es- tablished 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 in- surance 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 Im- provement Act (25 U.S.C. 1601 et seq.) would also be re- pealed and millions of American Indians and Alaska Na- tives would have less access to health services, less op- tions for care, and worsened health disparities; VerDate Sep 11 2014 02:19 Jul 01, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6300 E:\BILLS\SR638.IS SR638 pamtmann on DSKBC07HB2PROD with BILLS 6 •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 nearly 500,000 veterans who have gained health insur- ance 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 con- sumer protections, including the requirements that— (1) plans offer preventive care without cost-sharing; (2) young adults can remain on their parents’ insur- ance plan until age 26; (3) many health insurance plans offer a comprehen- sive set of essential health benefits such as maternity care, addiction treatment, and prescription drug cov- erage; (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; VerDate Sep 11 2014 02:19 Jul 01, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6300 E:\BILLS\SR638.IS SR638 pamtmann on DSKBC07HB2PROD with BILLS 7 •SRES 638 IS 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 bene- fits; 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 na- tional 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 North- ern 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 mil- lions of people in the United States; Whereas people in the United States who are facing the eco- nomic 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 in- surance, would trigger chaos: Now, therefore, be it Resolved, That it is the sense of the Senate that the 1 Department of Justice should— 2 VerDate Sep 11 2014 02:19 Jul 01, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\SR638.IS SR638 pamtmann on DSKBC07HB2PROD with BILLS 8 •SRES 638 IS (1) defend the Patient Protection and Afford- 1 able Care Act (Public Law 111–148; 124 Stat. 119) 2 rather than doubling down on its position with re- 3 spect to the decision of the United States District 4 Court for the Northern District of Texas in Texas 5 v. United States, No. 4:18–cv–00167–O (N.D. 6 Tex.); and 7 (2) protect the millions of people in the United 8 States who newly gained health insurance coverage 9 since 2014 and rely on that coverage in the midst 10 of the public health emergency relating to the 11 Coronavirus Disease 2019 (COVID–19). 12 Æ VerDate Sep 11 2014 02:19 Jul 01, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6301 E:\BILLS\SR638.IS SR638 pamtmann on DSKBC07HB2PROD with BILLS