S.Amdt. 3865

SA 3865. Mr. MANCHIN (for himself and Mr. Casey) submitted an
amendment intended to be proposed to amendment SA 3695 proposed by Mr.
Shelby to the bill H.R. 6157, making appropriations for the Department
of Defense for the fiscal year ending September 30, 2019, and for other
purposes; which was ordered to lie on the table; as follows:

At the appropriate place in division B, insert the
following:

SEC. __. SENSE OF THE SENATE REGARDING REPRESENTATION BY
SENATE LEGAL COUNSEL IN TEXAS V. UNITED STATES.

(a) Findings.--Congress finds the following:
(1) 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 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'').
(2) 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.
(3) 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.
(4) 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 provision''), 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.
(b) Sense of the Senate.--It is the sense of the Senate
that the Senate Legal Counsel should be authorized to
represent the Senate in Texas v. United States, No. 4:18-cv-
00167-O (N.D. Tex.), including seeking to--
(1) intervene as a party in the matter; and
(2) defend all provisions of the Patient Protection and
Affordable Care Act, the amendments made by that Act to other
provisions of law, and any amendments to such provisions,
including the provisions ensuring affordable health coverage
for those with pre-existing conditions.
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