Texas et al v. United States of America et al

Filing 1

COMPLAINT against All Defendants filed by Louisiana, West Virgina, Florida, South Carolina, Texas, South Dakota, North Dakota, Phil Bryant, Arizona, Arkansas, Indiana, Paul LePage, Utah, Missouri, Nebraska, Georgia, Wisconsin, Kansas, Tennessee, Alabama. (Filer fee Paid - FW0539-9014188) Clerk to issue summonses for federal and non-federal defendants. In each Notice of Electronic Filing, the judge assignment is indicated, and a link to the Judges Copy Requirements is provided. The court reminds the filer that any required copy of this and future documents must be delivered to the judge, in the manner prescribed, within three business days of filing. Unless exempted, attorneys who are not admitted to practice in the Northern District of Texas must seek admission promptly. Forms, instructions, and exemption information may be found at www.txnd.uscourts.gov, or by clicking here: Attorney Information - Bar Membership. If admission requirements are not satisfied within 21 days, the clerk will notify the presiding judge. (Attachments: # 1 Cover Sheet) (McCarty, Darren) Modified to edit payment information on 2/27/2018 (wxc).

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
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,
Plaintiffs,
v.
UNITED STATES OF AMERICA,
UNITED STATES DEPARTMENT
OF HEALTH AND HUMAN
SERVICES, ALEX AZAR,
in his Official Capacity as
SECRETARY OF HEALTH AND
HUMAN SERVICES, UNITED
STATES INTERNAL REVENUE
SERVICE, and DAVID J. KAUTTER,
in his Official Capacity as Acting
COMMISSIONER OF INTERNAL
REVENUE,
Defendants.

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Civil Action No. _______________

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
TO THE HONORABLE JUDGE OF SAID COURT:
The Patient Protection and Affordable Care Act (the “Affordable Care Act,”
“the ACA” or “the Act”), as recently amended, forces an unconstitutional and
Complaint for Declaratory and Injunctive Relief

Page 1

irrational regime onto the States and their citizens. Because this recent amendment
renders legally impossible the Supreme Court’s prior savings construction of the
Affordable Care Act’s core provision—the individual mandate—the Court should
hold that the ACA is unlawful and enjoin its operation.
NFIB v. Sebelius, 567 U.S. 519 (2012), held that in enacting the ACA,
Congress sought to do something unconstitutional: impose a mandate to obtain
health insurance by requiring that most Americans “shall” insure that they are
“covered under minimum essential coverage.” 26 U.S.C. § 5000A(a). “Congress
[wrongly] thought it could enact such a command under the Commerce Clause[.]”
NFIB, 567 U.S. at 562 (Roberts, C.J.). The Supreme Court, however, interpreted the
mandate to be part-and-parcel of a tax penalty that applies to many (but not all) of
those to whom the mandate applies. Thus, even though Congress sought to do
something unconstitutional in enacting the mandate under the Commerce Clause,
the Supreme Court salvaged its handiwork as a lawful exercise of the taxing power.
But things changed on December 22, 2017.
On December 22, 2017, the President signed into law the Tax Cuts and Jobs
Act of 2017. This new legislation eliminated the tax penalty of the ACA, without
eliminating the mandate itself. What remains, then, is the individual mandate,
without any accompanying exercise of Congress’s taxing power, which the Supreme
Court already held that Congress has no authority to enact. Not only is the
individual mandate now unlawful, but this core provision is not severable from the
rest of the ACA—as four Justices of the Supreme Court already concluded. In fact,
Congress stated in the legislative text that the ACA does not function without the
individual mandate.
The ACA’s unconstitutionality follows from three holdings in NFIB and the
aforementioned provision in the Tax Cuts and Jobs Act of 2017. First, a majority of
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Page 2

the Supreme Court held that Congress lacks the constitutional authority to compel
citizens to purchase health insurance. NFIB, 567 U.S. at 558 (Roberts, C.J.); id. at
657 (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting) (hereinafter “Dissenting
Op.”). Second, the same majority concluded that the ACA included a mandate to buy
health insurance that applies to most (but not all) citizens, and a separate tax
penalty that applies to most (but not all) of those required to buy insurance under
the mandate. Id. at 562–63 (Roberts, C.J.); id. at 663 (Dissenting Op.). Third, a
different majority held that, as a matter of constitutional avoidance, it was “fairly
possible” to reinterpret the mandate and tax penalty as a single “tax,” which
Congress may enact under its taxing authority. Id. at 564–74. In reaching this end,
the majority concluded that Congress’s taxing-power interpretation was only “fairly
possible” because the provision at issue raised “at least some revenue for the
Government.” Id. at 564 (citing United States v. Kahriger, 345 U.S. 22 (1953)).
Indeed, the raising of “at least some revenue” was “the essential feature of any tax.”
Id. (emphasis added). After all, if a provision raises no revenue, it cannot be said “to
pay the Debts and provide for the common Defence and general Welfare of the
United States.” U.S. Const. art. I, § 8, cl. 1 (emphasis added).
Pursuant to the Tax Cuts and Jobs Act of 2017, starting in 2019, the tax
penalty is eliminated by reducing the tax to zero. Pub. L. No. 115-97, § 11081, 131
Stat. 2054. The individual mandate itself, however, remains. But because the tax
penalty provision in the ACA no longer raises any revenue, the Supreme Court’s
avoidance reading is no longer possible. As the Congressional Budget Office
explained, the Tax Cuts and Jobs Act of 2017 “eliminate[s]” the “individual mandate
penalty . . . but [not] the mandate itself.” Congressional Budget Office, Repealing the
Individual Health Insurance Mandate: An Updated Estimate 1, (November 2017)

Complaint for Declaratory and Injunctive Relief

Page 3

(emphasis added) (hereinafter “CBO 2017 Report”). 1 Because the tax penalty raises
$0, it lacks “the essential feature of any tax,” and the avoidance interpretation
adopted in NFIB to save the individual mandate from its unconstitutionality is no
longer “fairly possible.”
Following the enactment of the Tax Cuts and Jobs Act of 2017, the country is
left with an individual mandate to buy health insurance that lacks any
constitutional basis. The invalidity of the ACA’s core provision (individual mandate)
thus follows from NFIB.
Once

the

heart

of

the

ACA—the

individual

mandate—is

declared

unconstitutional, the remainder of the ACA must also fall. NFIB, 567 U.S. at 691–
708 (Dissenting Op.). As Congress made clear, “[t]he requirement [for individuals to
buy health insurance] is essential to creating effective health insurance markets.”
42 U.S.C. § 18091(2)(I) (emphasis added). “[T]he absence of th[is] requirement
would undercut Federal regulation of the health insurance market.” Id.
§ 18091(2)(H). In particular, “the guaranteed issue and community rating
requirements

would

not

work

without

the

coverage

requirement

[i.e.,

Section 5000A].” King v. Burwell, 135 S. Ct. 2480, 2487 (2015) (emphasis added). So
because the remainder of ACA does not “function in a manner consistent with the
intent of Congress,” the whole Act must fall with the mandate. Alaska Airlines, Inc.
v. Brock, 480 U.S. 678, 684–85 (1987) (describing severability analysis) (emphasis
added).
Absent the individual mandate, the ACA is an irrational regulatory regime
governing an essential market. The ACA’s stated objectives are “achiev[ing] nearuniversal [health-insurance] coverage,” 42 U.S.C. § 18091(2)(D), “lower[ing] health
1
See
mandate.pdf.

https://www.cbo.gov/system/files/115th-congress-2017-2018/reports/53300-individual

Complaint for Declaratory and Injunctive Relief

Page 4

insurance premiums,” id. § 18091(2)(F), and “creating effective health insurance
markets,” id. § 18091(2)(I). But without the “essential” mandate, coverage will
decrease, premiums will rise, and markets will become irrational. See id. Thus, the
post-mandate ACA lacks “some footing” in the “realities” of the health-insurance
market, Heller v. Doe, 509 U.S. 312, 321 (1993), and has no “plausible policy reason”
for forcing continued compliance, Armour v. City of Indianapolis, 566 U.S. 673, 681
(2012).
In all, the ACA is unlawful and the Court should enjoin its operation.
Therefore, Plaintiffs seek declaratory and injunctive relief against the United
States of America, United States Department of Health and Human Services, Alex
Azar, in his official capacity as Secretary of Health and Human Services, United
States Internal Revenue Service, and David J. Kautter, in his official capacity as
Acting

Commissioner

of

Internal

Revenue,

regarding

Defendants’

actions

implementing and enforcing the Patient Protection and Affordable Care Act.
I. PARTIES
1.

Plaintiff States are all sovereigns within the United States.

2.

Plaintiff Paul LePage is the Governor of Maine and Chief Executive of

the Maine Constitution and the laws enacted by the Maine Legislature. Me. Const.
art. V, Pt. 1, § 1.
3.

Plaintiff Phil Bryant is the Governor of Mississippi and brings this suit

on behalf of Mississippi pursuant to Miss. Code Ann. § 7-1-33.
4.

In addition to performing various sovereign functions and prerogatives,

all Plaintiffs function as significant employers with tens of millions under their
collective charge. 2
2 See, e.g., U.S. Census Bureau, State and Local Government Employment and Payroll Data: March
2015 Annual Survey of Public Employment & Payroll, http:// factfinder.census.gov/bkmk/table/1.0/en/

Complaint for Declaratory and Injunctive Relief

Page 5

5.

Defendants are the United States of America, the United States

Department of Health and Human Services (“Department”), Alex Azar, in his
official capacity as Secretary of Health and Human Services, the United States
Internal Revenue Service (“Service”), and David J. Kautter, in his official capacity
as Acting Commissioner of Internal Revenue.
6.

The Department is a federal agency and is responsible for

administration and enforcement of the laws challenged here. See generally 20
U.S.C. § 3508; 42 U.S.C. §§ 202–03, 3501.
7.

The Service is a bureau of the Department of Treasury, under the

direction of the Acting Commissioner of Internal Revenue, David J. Kautter, and is
responsible for collecting taxes, administering the Internal Revenue Code, and
overseeing various aspects of the Act. See generally 26 U.S.C. § 7803 et. seq.; see
https://www.irs.gov/affordable-care-act/affordable-care-act-tax-provisions.
8.

Any injunctive relief requested herein must be imposed upon the

Department, Secretary, Service, and the Acting Commissioner for Plaintiffs to
obtain full relief.
II. JURISDICTION AND VENUE
9.

The Court has jurisdiction pursuant to 28 U.S.C. § 1331 because this

suit concerns the constitutionality of the ACA. The Court also has jurisdiction to
compel the Secretary of Health and Human Services and Acting Commissioner of
Internal Revenue to perform their duties pursuant to 28 U.S.C. § 1361.
10.

The Plaintiffs’ claims for declaratory and injunctive relief are

authorized by 28 U.S.C. §§ 2201 and 2202, by 5 U.S.C. § 706, by Rules 57 and 65 of
the Federal Rules of Civil Procedure, and by the general legal and equitable powers

GEP/2015/00A4.
Complaint for Declaratory and Injunctive Relief

Page 6

of the Court.
11.

Venue is proper under 28 U.S.C. § 1391 because the United States, two

of its agencies, and two of its officers in their official capacity are Defendants; and a
substantial part of the events giving rise to the Plaintiffs’ claims occurred in this
District. Further, a plaintiff “resides” in this district, a “substantial part of the
events [ ] giving rise to the claim occurred” in this district, and “no real property is
involved.” Id. § 1391(e)(1).
III. FACTUAL BACKGROUND
A.

The Individual Mandate and the Affordable Care Act.
12.

In 2010, Congress enacted a sweeping new regulatory framework for

the nation’s healthcare system by passing the Patient Protection and Affordable
Care Act, Pub. L. No. 111-148, 124 Stat. 119, and the Health Care and Education
Reconciliation Act of 2010, Pub. L. No. 111-152, 124 Stat. 1029, collectively and
commonly referred to as the “Affordable Care Act.” See Patient Protection and
Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119-1025 (Mar. 23, 2010)
(hereinafter, collectively, “the Affordable Care Act,” “the ACA” or “the Act”).
President Obama signed the Patient Protection and Affordable Care Act (H.R. 3590,
111th Cong.) into law on March 23, 2010, and the Health Care and Education
Reconciliation Act (H.R. 4872, 111th Cong.) into law on March 30, 2010.
13.

The ACA has the express statutory goals of “achiev[ing] near-universal

[health-insurance] coverage,” 42 U.S.C. § 18091(2)(D), “lower[ing] health insurance
premiums,” id. § 18091(2)(F), and “creating effective health insurance markets,” id.
§ 18091(2)(I).
14.

The ACA contains three main features relevant to this lawsuit.

15.

First, the ACA contains an “individual mandate” on most Americans to

purchase health insurance and, separately, a tax penalty for most who fail to
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Page 7

comply. ACA § 1501; 26 U.S.C. § 5000A.
a. The statutory title of the individual mandate is “Requirement To
Maintain Minimum Essential Coverage,” ACA § 1501; 26 U.S.C.
§ 5000A(a), and the statutory title for the tax penalty is “Shared
Responsibility Payment,” ACA § 1501; 26 U.S.C. § 5000A(b). The
individual mandate provides: “An applicable individual shall . . .
ensure that the individual . . . is covered under minimum essential
coverage.” 26 U.S.C. § 5000A(a).
b. Subsection

(b)

of

Section

5000A—the

“Shared

Responsibility

Payment”—imposed a tax “penalty” on individuals who failed to
comply with Subsection (a): “If a taxpayer who is an applicable
individual . . . fails to meet the requirement of subsection (a) . . . then
. . . there is hereby imposed on the taxpayer a penalty with respect to
such failure[ ].” 26 U.S.C. § 5000A(b)(1). Subsection (c) determines the
amount of the tax penalty with a multi-step formula. Id. § 5000A(c).
c. Some Americans are exempt from the individual mandate, see 26
U.S.C. § 5000A(d)(2)–(4); id. § 1402(g)(1), while others are subject to
the mandate but exempt from the tax penalty, see 26 U.S.C.
§ 5000A(e)(1)–(5). “Many individuals . . . [will] comply with a mandate,
even in the absence of penalties, because they believe in abiding by the
nation’s laws.” Congressional Budget Office, Key Issues in Analyzing
Major Health Insurance Proposals 53 (Dec. 2008). 3
16.

Second, the ACA imposes regulations on health-insurance companies.
a. The Act requires health insurance companies to “accept every

3

See https://www.cbo.gov/sites/default/files/110th-congress-2007-2008/reports/12-18-keyissues.pdf.

Complaint for Declaratory and Injunctive Relief

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employer and individual in the State that applies for [ ] coverage,”
regardless of preexisting conditions (commonly termed “guaranteed
issue”). ACA § 1201; 42 U.S.C. § 300gg-1–4.
b. The Act prohibits insurance companies from charging individuals
higher

premiums

because

of

their

health

(commonly

termed

“community rating”). ACA § 1201; 42 U.S.C. § 300gg-4(a)(1).
c. The Act imposes numerous coverage requirements on all healthinsurance plans, termed “essential health benefits” in the Act, and
limitations on “cost-sharing” on all plans. See ACA §§ 1301–02; 42
U.S.C. §§ 18021–22.
d. The Act charges “the Secretary” with the authority to “define the
essential health benefits” that plans must include. ACA § 1302; 42
U.S.C. § 18022. Such benefits “shall include” at least “ambulatory
patient services,” “emergency services,” “hospitalization,” “maternity
and newborn care,” “mental health and substance use disorder
services, including behavioral health treatment,” “prescription drugs,”
“rehabilitative and habilitative services and devices,” “laboratory
services,” “preventive and wellness services and chronic disease
management,” and “pediatric services, including oral and vision care.”
ACA § 1302; 42 U.S.C. § 18022(b)(1)(A)–(J) (capitalization altered).
17.

Third, the ACA contains other regulations to promote access to health

insurance and the affordability of that insurance.
a. Employers of 50 or more full-time employees (defined as working “on
average at least 30 hours [ ] per week,” ACA § 1513; 26 U.S.C.
§ 4980H(c)(4)(A)) must offer affordable health insurance if one
employee qualifies for a subsidy to purchase health insurance on the
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health-insurance exchanges created by the ACA. See ACA § 1513; 26
U.S.C. § 4980H.
b. Covered employers that fail to offer any insurance must pay a penalty
of $2,000 per year per employee. ACA § 1513; 26 U.S.C. § 4980H(a),
(c)(1). If the employer fails to offer affordable insurance, then it must
pay $3,000 per year per employee. ACA § 1513; 26 U.S.C. § 4980H(b);
79 Fed. Reg. 8544, 8544 (Feb. 12, 2014).
c. The Act also authorizes refundable tax credits to make insurance
purchased on the exchanges more affordable for individuals between
100% and 400% of the poverty line. See ACA § 1401; 26 U.S.C. § 36B.
d. The Act substantially expanded Medicaid, requiring States to cover—
with an expanded benefits package—all individuals under 65 who have
income below 133% of the poverty line. 42 U.S.C. § 1396; see generally
NFIB, 567 U.S. at 574–80 (Roberts, C.J.) (describing expansion and
holding that forcing States to comply is unconstitutional).
e. The Act also imposes additional insurance taxes and regulations, like a
tax on high cost employer-sponsored health coverage, 26 U.S.C.
§ 4980I, a requirement that insurance providers cover dependents up
to 26 years of age, 42 U.S.C. § 300gg-14(a), the elimination of coverage
limits, id. § 300gg-11, and a reduction in federal reimbursement rates
to hospitals, see 42 U.S.C. § 1395ww.
f. Finally, the Act contains a grab bag of other provisions. For example,
the Act imposes a 2.3% tax on certain medical devices, 26 U.S.C.
§ 4191(a), creates mechanisms for the Secretary to issue compliance
waivers to States attempting to reduce costs through otherwiseprohibited means, 42 U.S.C. § 1315, and regulates the display of
Complaint for Declaratory and Injunctive Relief

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nutritional content at certain restaurants, 21 U.S.C. § 343(q)(5)(H).
18.

According to Congress’s own findings, the ACA’s provisions do not

function rationally without the individual mandate.
a. Congress stressed the importance of Section 5000A’s individual
mandate with explicit findings in the text of the ACA itself. ACA
§ 1501; 42 U.S.C. § 18091.
b. Chief among these legislative findings is Section 18091(a)(2)(I), which
provides:
Under sections 2704 and 2705 of the Public Health
Service Act [42 U.S.C. 300gg-3, 300gg-4] (as added by
section 1201 of this Act), if there were no requirement [to
buy health insurance], many individuals would wait to
purchase health insurance until they needed care. By
significantly increasing health insurance coverage, the
requirement [to buy health insurance], together with the
other provisions of this Act, will minimize this adverse
selection and broaden the health insurance risk pool to
include healthy individuals, which will lower health
insurance premiums. The requirement is essential to
creating effective health insurance markets in which
improved health insurance products that are guaranteed
issue and do not exclude coverage of pre-existing
conditions can be sold.
42 U.S.C. § 18091(a)(2)(G) (emphasis added). Even after the recent
legislative change, the individual mandate remains part of the ACA,
permitting the ACA to function exactly as Congress outlined and
intended.
c. Other legislative findings from Section 18091 reinforce this point.
i. “By significantly reducing the number of the uninsured, the
requirement, together with the other provisions of th[e] [ACA],
will significantly reduce [health care’s] economic cost.” Id.
§ 18091(2)(E). “[B]y significantly reducing the number of the
uninsured, the requirement, together with the other provisions

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of th[e] [ACA], will lower health insurance premiums.” Id.
§ 18091(2)(F).
ii. “The requirement is an essential part of [the Government’s]
regulation of economic activity, and the absence of the
requirement would undercut Federal regulation of the health
insurance market.” Id. § 18091(2)(H) (emphasis added).
iii. “[T]he requirement, together with the other provisions of th[e]
[ACA], will significantly reduce administrative costs and lower
health insurance premiums. The requirement is essential to
creating effective health insurance markets that do not require
underwriting and eliminate its associated administrative costs.”
Id. § 18091(2)(J) (emphasis added).
d. The Supreme Court explained that the ACA’s provisions are “closely
intertwined,” such that “the guaranteed issue and community rating
requirements would not work without the coverage requirement [i.e.,
Section 5000A].” King, 135 S. Ct. at 2487 (emphasis added); NFIB, 567
U.S. at 547–48 (Roberts, C.J).
e. Upsetting this balance “would destabilize the individual insurance
market” in the manner “Congress designed the Act to avoid.” King, 135
S. Ct. at 2493.
B.

The Individual Mandate and the Tax Penalty Are Inextricably
Intertwined—One Cannot Exist Without the Other under NFIB v.
Sebelius.
19.

In NFIB v. Sebelius, 567 U.S. 519 (2012), the constitutionality of the

ACA was challenged by most of the Plaintiff States herein.
20.

As relevant here, the States argued that Section 5000A “exceeded

Congress’s powers under Article I of the Constitution.” Id. at 540 (Roberts, C.J.).
Complaint for Declaratory and Injunctive Relief

Page 12

Specifically, the States argued that: (1) the Commerce Clause did not support the
individual mandate; (2) Congress’s tax power did not support the mandate; and (3)
if Section 5000A is unconstitutional, the Court must enjoin the entire ACA because
it is non-severable. See id. at 538–43 (Roberts, C.J.).
21.

A majority of the Supreme Court held (via the opinion of the Chief

Justice and the four-Justice dissenting opinion) that the individual mandate
exceeded Congress’s power under the Commerce Clause and the Necessary and
Proper Clause. Id. at 558–61 (Roberts, C.J.); id. at 657 (Dissenting Op.).
22.

A different majority (via the opinion of the Chief Justice and the four-

Justice concurring opinion) then held it was “fairly possible” to read the individual
mandate plus its tax penalty as a single, unified tax provision, and thus could be
supported under Congress’s tax power. Id. at 563 (Roberts, C.J.).
23.

Under this alternate tax interpretation, Section 5000A is no longer “a

legal command to buy insurance” backed up by a threat of paying a penalty that is
applicable to some, but not all, of those to whom the mandate applies; “[r]ather, it
makes going without insurance just another thing the Government taxes, like
buying gasoline or earning income.” Id. (Roberts, C.J.).
24.

“The essential feature” of the Court’s alternative tax holding is that the

tax penalty “produces at least some revenue for the Government.” Id. at 564
(Roberts, C.J.) (citing Kahriger, 345 U.S. at 28 n.4) (emphasis added). “Indeed, the
payment is expected to raise about $4 billion per year by 2017.” Id. (Roberts, C.J.).
Absent that “essential feature,” the Court’s alternative interpretation was not
“fairly possible” under both the Constitution’s text and longstanding Supreme Court
precedent.
25.

The NFIB dissent rejected this alternate reading. The dissent

explained that Section 5000A is “a mandate that individuals maintain minimum
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essential coverage, [which is] enforced by a penalty.” Id. at 662 (Dissenting Op.)
(emphasis added). It is “a mandate to which a penalty is attached,” not “a simple
tax.” Id. at 665 (Dissenting Op.).
26.

The dissent explained that the structure of Section 5000A supported

the mandate-attached-to-a-penalty-that-sometimes-applies reading: Section 5000A
mandates that individuals buy insurance in Subsection (a), and then in Subsection
(b) it imposes the penalty for failure to comply with Subsection (a). Id. at 663
(Dissenting Op.). Section 5000A exempts “some” people from the mandate, but not
the penalty—“those with religious objections,” who “participate in a health care
sharing ministry,” and “those who are not lawfully present in the United States.”
Id. at 665 (Dissenting Op.) (citations omitted). “If [Section] 5000A were [simply] a
tax” and “no[t] [a] requirement” to obtain health insurance, exempting anyone from
the mandate provision, but not the penalty provision, “would make no sense.” Id.
(Dissenting Op.).
27.

The Chief Justice agreed with the dissent’s primary conclusion

(thereby creating a majority) that the “most straightforward reading of”
Section 5000A “is that it commands individuals to purchase insurance.” Id. at 562
(Roberts, C.J.). “Congress thought it could enact such a command under the
Commerce Clause, and the Government primarily defended the law on that basis.”
Id. (Roberts, C.J.). The “most natural interpretation of the mandate” is that it is a
command backed up by a penalty, not a tax. Id. at 563 (Roberts, C.J.).
C.

The Tax Cuts and Jobs Act of 2017 Repealed The Tax Penalty,
Leaving Only the Unconstitutional Individual Mandate.
28.

On December 22, 2017, the President signed into law the Tax Cuts and

Jobs Act of 2017. Among many other provisions, the new law amended
Section 5000A. Pub. L. No. 115-97, § 11081.

Complaint for Declaratory and Injunctive Relief

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29.

This amendment reduces the operative parts of Section 5000A(c)’s tax

penalty formula to “Zero percent” and “$0.” Pub. L. No. 115-97, § 11081. This
change applies after December 31, 2018. Id. After the Tax Cuts and Jobs Act of
2017, Section 5000A(a) still contains the individual mandate, requiring “[a]n
applicable individual” to “ensure that the individual . . . is covered under minimum
essential coverage,” but Section 5000A(b)’s tax “penalty” for an individual who “fails
to meet th[is] requirement” is now $0.
30.

The House Conference Report of the Tax Cuts and Jobs Act of 2017

agreed. “Under the [ACA], individuals must be covered by a health plan that
provides at least minimum essential coverage or be subject to a tax (also referred to
as a penalty) for failure to maintain the coverage (commonly referred to as the
‘individual mandate’).” H.R. Rep. No. 115-466, at 323 (2017). 4 “The Senate
amendment reduces the amount of the individual responsibility payment, enacted
as part of the Affordable Care Act, to zero.” Id. at 324. The Conference Report is
silent about the individual mandate itself.
31.

The CBO’s report on the Tax Cuts and Jobs Act of 2017 explains that

the bill “eliminate[s]” the “individual mandate penalty . . . but [not] the mandate
itself.” CBO 2017 Report 1. The CBO added that “a small number of people who
enroll in insurance because of the mandate under current law would continue to do
so [post elimination of the individual mandate’s penalty] solely because of a
willingness to comply with the law.” Id.
32.

In the Tax Cuts and Jobs Act of 2017, Congress did not amend or

repeal the ACA’s legislative findings that the individual mandate is essential to the
operation of the ACA.

4

See https://www.gpo.gov/fdsys/pkg/CRPT-115hrpt466/pdf/CRPT-115hrpt466.pdf.

Complaint for Declaratory and Injunctive Relief

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33.

As the Supreme Court explained in NFIB, “the essential feature of any

tax” is that it “produces some revenue.” 567 U.S. at 564 (emphasis added).
34.

Section 5000A, as amended by the Tax Cuts and Jobs Act of 2017, now

“produces” no revenue (beginning Jan. 1, 2019). Accordingly, it is not possible to
interpret the individual mandate as part of a single unified tax provision.
35.

Instead, the “most natural interpretation of the mandate,” id. at 563

(Roberts, C.J.), is now the only interpretation possible: an unconstitutional
command from the federal government to individuals to purchase a product.
D.

The ACA, As Amended, Imposes Serious Injury and Irreparable
Harm Upon the States and Their Citizens.
36.

As Congress itself found, the ACA’s provisions only work rationally

with the individual mandate—a mandate now unconstitutional under NFIB.
37.

The unconstitutional individual mandate, along with the ACA itself,

significantly harms and impacts the States, as independent sovereigns, in various
ways:
a. Imposing a burdensome and unsustainable panoply of regulations on a
market that each State has the sovereign responsibility to regulate and
maintain within its own borders, to wit:
i. The ACA imposes a health insurance exchange in each State for
consumers to shop for health plans and access subsidies to help
pay for coverage. Under the ACA, States can choose between
three types of exchanges:
1. State-based exchange (adopted by 16 States, plus the
District of Columbia), including five federally-supported
exchanges, which rely on the Healthcare.gov technology
platform;

Complaint for Declaratory and Injunctive Relief

Page 16

2. State-partnership with a federally facilitated exchange
(adopted by six States), or
3. Federally-facilitated exchange (adopted by 28 States).
Defendant HHS established and imposed the exchange
infrastructure on the States and certifies at the federal
level that participating health plans meet the federal
requirements to sell plans on the exchange. The ACA does
not grant States statutory authority to enforce the ACA
and HHS maintains the authority to take enforcement
action. For States involved in the federally-facilitated
exchange, carriers must file plans with both the state
regulatory authority and CMS (Centers for Medicare and
Medicaid Services), even if they do not plan to participate
in the exchange. Whether they are sold on or off the
federal Marketplace, all individual and small group
health insurance plans must include the essential health
benefits

package

and

comply

with

other

federal

requirements.
ii. The ACA also imposed myriad market reforms on the States,
including guaranteed issue, prohibition on preexisting condition
exclusions, and modified community ratings.
b. By forcing state, non-federal governmental officials and citizens to
comply with the mandates of the ACA, including the individual
mandate, and all of the ACA’s associated rules and regulations, instead
of state-based policy regarding health insurance, Plaintiffs are injured.
Sovereigns suffer injury when their duly enacted laws or policies are
Complaint for Declaratory and Injunctive Relief

Page 17

enjoined or impeded. See Alfred L. Snapp & Son, Inc. v. Puerto
Rico, 458 U.S. 592, 601 (1982) (recognizing the interest of a sovereign
in its “power to create and enforce a legal code, both civil and
criminal”); Alaska v. U.S. Dep’t of Transp., 868 F.2d 441, 443 n.1 (D.C.
Cir. 1989) (agreeing that the State has standing to seek declaratory
and injunctive relief “because DOT claims that its rules preempt state
consumer protection statutes, [and therefore] the States have suffered
injury to their sovereign power to enforce state law”); Maryland v.
King, 133 S. Ct. 1, 3 (2012) (citing New Motor Vehicle Bd. v. Orrin W.
Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers) (“It
also seems to me that any time a State is enjoined by a court from
effectuating statutes enacted by representatives of its people, it suffers
a form of irreparable injury.”)); Planned Parenthood of Greater Texas
Surgical Health Servs. v. Abbott, 734 F.3d 406, 419 (5th Cir. 2013)
(“When a statute is enjoined, the State necessarily suffers the
irreparable harm of denying the public interest in the enforcement of
its laws.”); Coalition for Econ. Equity v. Wilson, 122 F.3d 718, 719 (9th
Cir. 1997); Illinois Dep’t of Transp. v. Hinson, 122 F.3d 370, 372 (7th
Cir. 1997) (State has standing where it “complains that a federal
regulation will preempt one of the state’s laws.”).
c. The unconstitutional individual mandate, along with the ACA itself,
significantly harms and impacts the States by compelling them to take
corrective action, at great cost, to save their insurance markets, to wit:
i. On January 21, 2018, Governor Scott Walker of Wisconsin called
on the Legislature to pass “a state-based reinsurance program”
for individuals purchasing insurance on the ACA’s exchanges,
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which will “stabilize[ ]” the market after “insurers exit[ ] [and]
shock rate increases.” Governor Scott Walker, Press Release,
Governor Walker Proposes Health Care Stability Plan to
Stabilize Premiums for Wisconsinites on Obamacare (Jan. 21,
2018). 5 This proposal would cost $200 million, split between
State and federal funds.

Governor Scott Walker, Memo

Accompanying Jan. 21, 2018 Press Release. 6 The Wisconsin
Legislature passed a reinsurance program in February 2018. 7
Wisconsin’s reinsurance program is necessary because the
ACA’s regulations of the individual market causes healthinsurance premiums to rise substantially. Without Wisconsin’s
intervention, plans in the individual market would either not be
offered, or would be prohibitively expensive.
ii. Wisconsin’s

Insurance

Commissioner,

like

the

insurance

commissioners of all States, will need to take other corrective
actions to protect Wisconsin citizens from the ACA’s irrational
regime.
iii. While the Texas Legislature did not adopt most ACA
requirements into Texas law, the Texas Department of
Insurance (“TDI”) monitors the impact of the ACA on the Texas
insurance market and takes action, when warranted, to protect
consumers and minimize market disruptions. For example, TDI
5
See
https://walker.wi.gov/press-releases/governor-walker-proposes-health-care-stability-planstabilize-premiums-wisconsinites.
6
See
https://jwyjh41vxje2rqecx3efy4kf-wpengine.netdna-ssl.com/wp-content/uploads/2018/01/
180120Overview.pdf.
7 See Wisconsin State Legislature, Senate Bill 770, https://docs.legis.wisconsin.gov/2017/proposals/
reg/sen/bill/sb770.

Complaint for Declaratory and Injunctive Relief

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developed navigator rules to address insufficient federal
standards for navigators, 28 TAC §§ 19.4001–19.4017, and the
ACA-forced dissolution of the Texas Health Insurance Pool
caused insurance coverage disruptions given the difficulties with
the federal health exchange rollout, requiring TDI to issue an
emergency rule extending existing insurance coverage for Texas
Health Insurance Pool enrollees.
iv. Moreover, like other States, many health insurers have
withdrawn from Texas due to unsustainable rising costs. Some
federally designated regions of Texas have only one insurance
carrier

offering

healthcare

plans.

Texas

residents

and

employers, including Texas itself as an employer, suffer as a
result of this lack of choice and higher costs.
v. Likewise, the ACA has wrought havoc on the health insurance
market in Nebraska. In 2017, two insurers exited Nebraska’s
individual market, leaving only a single insurer remaining.
Aetna announced its withdrawal from Nebraska’s individual
market in May 2017, citing an expected loss of $200 million for
2017 in the four states Aetna sold individual coverage. In June
2017, Blue Cross and Blue Shield of Nebraska also announced
its withdrawal from Nebraska’s individual market, citing an
expected loss of $12 million for 2017, in addition to the
approximately $150 million loss the company experienced in
Nebraska from 2014 to 2016. In the wake of these companies’
departures, only a single insurer, Medica, is left in Nebraska’s
individual market. Nebraskans are left to hope Medica—which
Complaint for Declaratory and Injunctive Relief

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itself raised premiums in plan year 2017 by an average of nearly
31 percent—remains in the market for 2019.
vi. In Missouri, the Interim Committee on Stabilizing Missouri’s
Health Insurance Markets, a bi-partisan committee of the
Missouri House, was formed to work on solving the rising
instability plaguing the Missouri insurance markets as a result
of the ACA. The committee voted unanimously to create the
“Missouri Reinsurance Plan,” and legislation to establish the
Missouri Reinsurance Plan, introduced on February 22, 2018.
H.B. 2539, 99th General Assembly (Mo. 2018). 8
vii. Governor Otter of Idaho recently issued an Executive Order to
the Idaho Department of Insurance to “approve [healthinsurance plans] that follow all State-based requirements, even
if not all [ACA] requirements are met.” Office of Governor C.L.
“Butch” Otter, Executive Order No. 2018-02 (Jan. 5, 2018). 9 The
Idaho

Department

of

Insurance

has

issued

a

bulletin

implementing this order. Idaho Dep’t of Ins., Bulletin No. 18-01
(Jan. 24, 2018). 10
viii. Maryland began investigating the enactment of its own statelevel individual mandate to replace the amended ACA
individual mandate. 11

See https://www.house.mo.gov/billtracking/bills181/hlrbillspdf/5903H.01I.pdf.
See https://gov.idaho.gov/mediacenter/execorders/eo2018/EO%202018-02.pdf.
10 See https://doi.idaho.gov/DisplayPDF?Id=4712.
11 See Josh Hicks, With Obama’s Federal Mandate Disappearing, Md. Democrats Push ‘Down
Payment’ Plan, Wash. Post (Jan. 9, 2018), https://www.washingtonpost.com/local/md-politics/mddemocrats-push-insurance-down-payment-plan-to-replace-federal-mandate/2018/01/09/bc0afbb0-f4f411e7-beb6-c8d48830c54d_story.html?utm_term=.789a454ab8bf.
8
9

Complaint for Declaratory and Injunctive Relief

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ix. Other States will need to take similar corrective measures to
address the ACA’s irrational regime.
38.

The unconstitutional individual mandate, along with the ACA itself,

significantly harms and impacts the States as Medicaid and CHIP providers:
a. The United States Congress created the Medicaid program in 1965. See
Social Security Amendments of 1965, Pub. L. No. 89-97, 79 Stat. 286
(1965). Medicaid is jointly funded by the United States and the States
to provide healthcare to individuals with insufficient income and
resources. See generally 42 U.S.C. §§ 1396-1396w. To participate in
Medicaid, States must provide coverage to a federally-mandated
category of individuals and according to a federally-approved State
plan. See 42 U.S.C. § 1396a; 42 C.F.R. §§ 430.10–430.12. All 50 States
participate in the Medicaid program. 12
b. The United States Congress created the Children’s Health Insurance
Program (“CHIP”) in 1997. See Balanced Budget Act of 1997, Pub. L.
No. 105-33, Title IV, Subtitle J, 111 Stat. 251 (Aug. 5, 1997). The
federal government and the States jointly fund CHIP to provide
healthcare for uninsured children that do not qualify for Medicaid. See
42 U.S.C. § 1397aa. CHIP covers children in families who have too
much income to qualify for Medicaid, but cannot afford to buy private
insurance. CHIP provides basic primary health care services to
children, as well as other medically necessary services, including
dental care. All States now participate in CHIP since its creation in

12 Federal Financial Participation in State Assistance Expenditures; Federal Matching Shares for
Medicaid, the Children’s Health Insurance Program, and Aid to Needy Aged, Blind, or Disabled
Persons for October 1, 2014 through September 30, 2015, 79 Fed. Reg. 3385 (Jan. 21, 2014).

Complaint for Declaratory and Injunctive Relief

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1997.
c. Because Medicaid and CHIP are entitlement programs, States cannot
limit the number of eligible people who can enroll, and Medicaid and
CHIP must pay for all services covered under the program. Providing
health care to individuals with insufficient income or resources
through the Medicaid or CHIP programs is a significant function of
state government.
d. One avenue for individuals to comply with Section 5000A’s individual
mandate

is

to

apply

for

Medicaid

or

CHIP.

26

U.S.C.

§ 5000A(f)(1)(A)(iii). Thus, because of the individual mandate and the
ACA, many individuals became eligible for Medicaid, or may have been
previously eligible but opted not to enroll. Either way, the individual
mandate requires millions more to enroll in Medicaid, imposing
additional costs on the States. This reality does not represent
“unfettered choices made by independent [state] actors,” ASARCO Inc.
v. Kadish, 490 U.S. 605, 615 (1989), but is rather a direct consequence
of the individual mandate and the ACA, leaving Medicaid as the only
option through which numerous individuals may comply.
e. As the CBO explained before both the enactment of ACA and the
enactment of the Tax Cuts and Jobs Act of 2017, at least some
individuals will obtain health insurance because of the mandate, even
absent any tax penalty. See CBO 2017 Report 1.
f. The mandate forcing more individuals onto Medicaid or CHIP causes
significant monetary injuries to the States, because these programs
obligate the States to share the expenses of coverage with the federal
government.
Complaint for Declaratory and Injunctive Relief

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39.

Pursuant to 26 U.S.C. § 4980H, the ACA harms the States as large

employers:
a. The ACA requires States, as large employers, to offer their employees
health-insurance plans with minimum essential benefits defined solely
by the Federal Government.
b. If a State wished to pursue other health-insurance policies for its
employees, perhaps by offering insurance with a different assortment
of coverage benefits, the Federal Government will tax or penalize the
State. 26 U.S.C. § 4980H.
c. The ACA imposes a 40% “[e]xcise tax” on “high cost employersponsored health coverage.” 26 U.S.C. § 4980I. As an employer,
Wisconsin must do “considerable work” restructuring its healthinsurance offerings to avoid this costly measure. 13 This work “may
have a significant effect on future plan design and maximum benefit
limitations.” 14
d. Because of the costs of the ACA, a major Wisconsin health insurer,
Assurant Health, ceased its Wisconsin operations. 15 This cost
Wisconsin approximately 1,200 jobs. 16
e. The ACA resulted in the repeal of Wisconsin’s high-risk pool, the
Health Insurance Risk-Sharing Plan, which effectively managed the
health-insurance needs of high-risk individuals before the full
13 Segal Consulting, Second Report—Observations and Recommendations for 2017 and Beyond,
prepared for Wisconsin Group Insurance Board Department of Employee Trust Funds, at p. 141
(Nov. 17, 2015), http://etf.wi.gov/boards/agenda-items-2015/gib1117/item3ar.pdf.
14 Id. at 142.
15 See Guy Boulton, Milwaukee-Based Assurant Health To Be Sold Of Or Shut Down, Milwaukee
Journal Sentinel (Apr. 28, 2015), http://archive.jsonline.com/business/assurant-considering-sale-ofmilwaukee-based-assurant-health-b99490422z1-301614251.html.
16 Id.

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implementation of the ACA. Wis. Stat. §§ 149.10–.53 (2011–12)
(statutory framework for Wisconsin Health Insurance Risk-Sharing
Plan), repealed by 2013 Wis. Act 20, § 1900n; see generally Wis.
Legislative Audit Bureau, Report 14-7 Health Insurance Risk-Sharing
Plan Authority at p.1 (June 2014) (describing history of Wisconsin’s
HIRSP, including dissolution and repeal).
f. If state employees obtain subsidized insurance from an exchange
instead of from a state plan, the Federal Government will tax or
penalize the State.
g. More employees will join state-sponsored plans because of the
mandate, imposing additional costs upon the States. See CBO 2017
Report 1. In Texas, for example, from FY13–FY17, the Texas Group
Benefits Program, administered by the Employees Retirement System
of Texas, spent $487 million on ACA-related costs. 2016 Group Benefits
Program Comprehensive Annual Report, Employees Retirement
System of Texas (Feb. 2017). 17
h. Nebraska, for example, has borne significant new costs at the behest of
the ACA. Nebraska, like other States, must offer non-full time
employees (i.e., employees working 30–39 hours per week) health
insurance plans with premiums identical to those offered to full time
employees.
i. In Missouri, revenue is drained by faster-than-projected growth in
health care expenditures, driven in part by the impact of the ACA.
Accordingly, Governor Greitens’s budget for Fiscal Year 2018 includes
17
See
https://ers.texas.gov/About-ERS/Reports-and-Studies/Reports-and-Studies-on-ERSadministered-Benefit-Programs/FY16-GBP-Comprehensive-Annual-Report.pdf.

Complaint for Declaratory and Injunctive Relief

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more than $572 million in cuts across Missouri state government and
reduces the State’s workforce by 188 positions. Mo. Office of Admin.,
Summary, The Missouri Budget, (2018). 18 For Fiscal Year 2019, the
problems continue. “Health care costs paid by the government continue
to skyrocket. Obamacare has still not been repealed, and the cost of
health care continues to rise. Taxpayers pay more and more for
government health care every year with little or no improvement in
results.” Mo. Office of Admin., Fiscal Year 2019 Budget Priorities, The
Missouri Budget. 19
j. In South Dakota, the estimated cost impact of the ACA upon the South
Dakota State Employee Benefits Program for FY 2015–2018 is as
follows: $10,400 for the review of denied appeals; $19,140,252 for the
elimination of the lifetime maximum; $4,575,200 for the expanded
preventive services paid only by the plan; $3,202,942 for the
Transitional Reinsurance Program fee (fee imposed on self-funded
plans); $172,141 for the Patient Centered Outcomes Research Institute
fee (fee imposed on self-funded plans); $1,514,205 for the expanded
health plan eligibility for part-time employees who did not meet the
pre-ACA

eligibility

definition;

$100,000

for

the

Form

1095-C

administration. To date, South Dakota is unable to accurately estimate
the cost of the pre-existing conditions exclusion or the expanded
eligibility for adult dependent children to age 26, though upon
information and belief, those qualifiers have increased the costs for
South Dakota’s taxpayers.
18
19

See https://oa.mo.gov/sites/default/files/FY_2018_Budget_Summary_Abridged.pdf.
See https://oa.mo.gov/sites/default/files/FY_2019_Budget_Summary.pdf.

Complaint for Declaratory and Injunctive Relief

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IV. CLAIMS FOR RELIEF
COUNT ONE
Declaratory Judgment That the Individual Mandate of the ACA Exceeds
Congress’s Article I Constitutional Enumerated Powers
40.

Plaintiffs incorporate the allegations contained in paragraphs 1

through 39 as if fully set forth herein.
41.

Section 5000A’s individual mandate exceeds Congress’s enumerated

powers.
42.

As

a

majority

of

the

Supreme

Court

concluded,

the

“most

straightforward reading of” Section 5000A “is that it commands individuals to
purchase insurance.” NFIB, 567 U.S. at 562–63 (Roberts, C.J.); id. at 663–65
(Dissenting Op.). Thus, Congress lacks authority under the Commerce Clause and
Necessary and Proper Clause to command individuals to purchase health insurance.
43.

In NFIB, a different majority of the Supreme Court saved Section

5000A from unconstitutionality by interpreting it not as a mandate enforced by a
separate tax penalty, but by combining the mandate with the tax penalty and
treating those provisions as a single tax on individuals who chose to go without
insurance. 567 U.S. at 563 (Roberts, C.J.).
44.

The Constitution grants to Congress the “Power to lay and collect

Taxes . . . to pay the Debts and provide for the common Defence and general
Welfare of the United States.” U.S. Const. art. I, § 8, cl. 1.
45.

A provision that raises no revenue is not a tax because it does nothing

to “pay the Debts” or “provide for the common Defense and general Welfare of the
United States.” Indeed, “the essential feature of any tax” is the “produc[tion] [of] at
least some revenue for the Government.” NFIB, 567 U.S. at 564–65, 574.
46.

The Tax Cuts and Jobs Act of 2017 reduced Section 5000A’s tax

Complaint for Declaratory and Injunctive Relief

Page 27

penalty to $0. Pub. L. No. 115-97, § 11081. Accordingly, Section 5000A no longer
possesses “the essential feature of any tax”; it no longer “produces at least some
revenue for the Government.”
47.

Therefore, after Congress amended Section 5000A, it is no longer

possible to interpret this statute as a tax enacted pursuant to a valid exercise of
Congress’s constitutional power to tax. Rather, the only reading available is the
most natural one; Section 5000A contains a stand-alone legal mandate.
48.

No other provision of the Constitution supports Congress’s claimed

authority to enact Section 5000A’s individual mandate. Accordingly, Section
5000A’s individual mandate is unconstitutional.
49.

The remainder of the ACA is non-severable from the individual

mandate, meaning that the Act must be invalidated in whole.
50.

Alternatively, and at the very minimum, as even the Obama

Administration conceded in its briefing in NFIB, the guaranteed-issue and
community-rating provisions are non-severable from the mandate and must be
invalidated along with the individual mandate.
51.

Because of Defendants’ actions, Plaintiffs have suffered, and continue

to suffer, irreparable injury.
52.

Plaintiffs are entitled to a declaration that the individual mandate of

the ACA exceeds Congress’s Article I constitutionally enumerated powers. Plaintiffs
also are entitled to a permanent injunction against Defendants from implementing,
regulating, or otherwise enforcing any part of the ACA because its requirements are
unlawful and not severable from the unconstitutional individual mandate.

Complaint for Declaratory and Injunctive Relief

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COUNT TWO
Declaratory Judgment That the ACA Violates the Due Process Clause of
the Fifth Amendment to the Constitution
53.

Plaintiffs incorporate the allegations contained in paragraphs 1

through 52 as if fully set forth herein.
54.

The Due Process Clause of the Fifth Amendment provides “nor shall

any person . . . be deprived of life, liberty, or property, without due process of law.”
U.S. Const. amend. V.
55.

The Fifth Amendment contains an “implicit” “equal protection

principle” binding the federal Government. Sessions v. Morales-Santana, 137 S. Ct.
1678, 1686 (2017).
56.

Legislation that imposes irrational requirements violates the Due

Process Clause.
57.

Given that Section 5000A’s individual mandate is unconstitutional, the

rest of the ACA is irrational under Congress’s own findings.
58.

The ACA lacks a rational basis now that the individual mandate’s tax

penalty has been repealed.
59.

Section 18091(2)(I), the chief legislative finding in the ACA, explains

that “[t]he requirement [to buy health insurance] is essential to creating effective
health insurance markets in which improved health insurance products that are
guaranteed issue and do not exclude coverage of pre-existing conditions can be
sold.” 42 U.S.C. § 18091(2)(I).
60.

Given that the ACA’s “essential” feature—the individual mandate—is

unconstitutional, the law now imposes irrational requirements, in violation of the
Due Process Clause.
61.

Because of Defendants’ actions, Plaintiffs have suffered, and continue

Complaint for Declaratory and Injunctive Relief

Page 29

to suffer, irreparable injury.
62.

Plaintiffs are entitled to a declaration that the ACA violates the Due

Process Clause to the Fifth Amendment. Plaintiffs also are entitled to a permanent
injunction against Defendants from implementing, regulating, or otherwise
enforcing any part of the ACA because its requirements are unlawful and not
severable from the unconstitutional individual mandate.
COUNT THREE
Declaratory Judgment That the ACA Violates the Tenth Amendment to the
United States Constitution
63.

Plaintiffs incorporate the allegations contained in paragraphs 1

through 62 as if fully set forth herein.
64.

The Tenth Amendment provides: “The powers not delegated to the

United States by the Constitution, nor prohibited by it to the States, are reserved to
the States respectively, or to the people.” U.S. Const. amend. X.
65.

Legislation that is irrational is outside the powers delegated to the

United States by the Constitution.
66.

Under Congress’s own findings, the ACA lacks a rational basis now

that the individual mandate’s tax penalty has been repealed and the individual
mandate is unconstitutional. See supra ¶¶ 53–62.
67.

The ACA is therefore not within the powers delegated to the United

States.
68.

Because of Defendants’ actions, Plaintiffs have suffered, and continue

to suffer, irreparable injury.
69.

Plaintiffs are entitled to a declaration that the ACA violates the Tenth

Amendment to the United States Constitution. Plaintiffs also are entitled to a
permanent injunction against Defendants from implementing, regulating, or

Complaint for Declaratory and Injunctive Relief

Page 30

otherwise enforcing any part of the ACA because its requirements are unlawful and
not severable from the unconstitutional individual mandate.
COUNT FOUR
Declaratory Judgment Under 5 U.S.C. § 706 that Agency Rules
Promulgated Pursuant to the ACA Are Unlawful
70.

Plaintiffs incorporate the allegations contained in paragraphs 1

through 69 as if fully set forth herein.
71.

The Administrative Procedure Act requires the Court to hold unlawful

and set aside any agency action that is, among other things, (a) arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law; (b)
contrary to constitutional right, power, privilege, or immunity; and (c) in excess of
statutory jurisdiction, authority, or limitations, or short of statutory right. 5 U.S.C.
§ 706(2).
72.

The Department and Service are both “agenc[ies]” under the

Administrative Procedures Act, 5 U.S.C. § 551(1), and the regulations and rules
promulgated pursuant to the ACA are “rules” under the Administrative Procedures
Act, 5 U.S.C. § 551(4).
73.

Because the ACA exceeds Congress’s Article I Constitutional

enumerated powers and violates the Fifth and Tenth Amendments to the
Constitution for the reasons described in prior paragraphs, all regulations
promulgated pursuant to, implementing, or enforcing, the ACA are arbitrary and
capricious, contrary to law, and in excess of agency authority.
74.

Because of Defendants’ actions, Plaintiffs have suffered, and continue

to suffer, irreparable injury.
75.

Plaintiffs are entitled to a declaration that regulations promulgated

pursuant to, implementing, or enforcing the ACA violates the Administrative

Complaint for Declaratory and Injunctive Relief

Page 31

Procedure Act. Plaintiffs also are entitled to a permanent injunction against
Defendants from implementing, regulating, or otherwise enforcing any part of the
ACA because its requirements are unlawful and not severable from the
unconstitutional individual mandate.
COUNT FIVE
Injunctive Relief Against Federal Officials from Implementing, Regulating,
or Otherwise Enforcing the ACA
76.

Plaintiffs incorporate the allegations contained in paragraphs 1

through 75 as if fully set forth herein.
77.

Plaintiffs are entitled to a permanent injunction against Defendants

from implementing, regulating, or otherwise enforcing any part of the ACA because
its requirements are unlawful and not severable from the unconstitutional
individual mandate.
V. PRAYER FOR RELIEF
Plaintiffs respectfully request that the Court:
A.

Declare the ACA, as amended by the Tax Cuts and Jobs Act of 2017, to
be unconstitutional either in part or in whole.

B.

Declare unlawful any and all rules or regulations promulgated
pursuant to, implementing, regulating, or otherwise enforcing the
ACA.

C.

Enjoin,

preliminarily

and

permanently,

Defendants

and

their

employees, agents, successors, or any other person acting in concert
with them, from implementing, regulating, enforcing, or otherwise
acting under the authority of the ACA.
D.

Award Plaintiffs their reasonable costs, including attorneys’ fees.

Complaint for Declaratory and Injunctive Relief

Page 32

E.

Grant Plaintiffs any and all such other and further relief to which they
are justly entitled at law and in equity.

Respectfully submitted this the 26th day of February, 2018,
BRAD SCHIMEL
Attorney General of Wisconsin
STEVE MARSHALL
Attorney General of Alabama
LESLIE RUTLEDGE
Attorney General of Arkansas
MARK BRNOVICH
Attorney General of Arizona
PAM BONDI
Attorney General of Florida
CHRISTOPHER CARR
Attorney General of Georgia
CURTIS HILL
Attorney General of Indiana
DEREK SCHMIDT
Attorney General of Kansas
JEFF LANDRY
Attorney General of Louisiana
JOSH HAWLEY
Attorney General of Missouri
DOUG PETERSON
Attorney General of Nebraska
WAYNE STENEHJEM
Attorney General of North Dakota
ALAN WILSON
Attorney General of South Carolina
MARTY JACKLEY
Attorney General of South Dakota
HERBERT SLATERY, III
Attorney General of Tennessee
SEAN REYES
Attorney General of Utah
PATRICK MORRISEY
Attorney General of West Virginia

Complaint for Declaratory and Injunctive Relief

KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General
BRANTLEY D. STARR
Deputy First Assistant Attorney General
JAMES E. DAVIS
Deputy Attorney General for Civil
Litigation
/s/ Darren McCarty
DARREN McCARTY
Special Counsel for Civil Litigation
Texas Bar No. 24007631
[e-mail]
AUSTIN R. NIMOCKS
Special Counsel for Civil Litigation
Attorney General of Texas
P.O. Box 12548, Mail Code 001
Austin, Texas 78711-2548
Tel: [phone]
ATTORNEYS FOR PLAINTIFFS

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