Texas et al v. United States of America et al

Filing 39

PLAINTIFF-STATES' AND INDIVIDUAL-PLAINTIFFS' APPLICATION FOR PRELIMINARY INJUNCTION filed by Alabama, Arizona, Arkansas, Florida, Georgia, Neill Hurley, Indiana, Kansas, Paul LePage, Louisiana, Mississippi, Missouri, John Nantz, Nebraska, North Dakota, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virgina, Wisconsin (Attachments: # 1 Proposed Order Granting Application for Preliminary Injunction)Attorney Darren L McCarty added to party Neill Hurley(pty:pla), Attorney Darren L McCarty added to party John Nantz(pty:pla) (McCarty, Darren) Modified title on 4/26/2018 (ctf).

No. 4:18-cv-00167-O

In the United States District Court
FOR THE NORTHERN DISTRICT OF TEXAS

TEXAS, WISCONSIN, ALABAMA, ARKANSAS, ARIZONA, FLORIDA, GEORGIA, INDIANA,
KANSAS, LOUISIANA, PAUL LEPAGE, Governor of Maine, GOVERNOR PHIL BRYANT OF
THE STATE OF MISSISSIPPI, MISSOURI, NEBRASKA, NORTH DAKOTA, SOUTH CAROLINA,
TENNESSEE, UTAH, WEST VIRGINIA, NEILL HURLEY, and JOHN NANTZ,
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.
PLAINTIFF-STATES’ AND INDIVIDUAL-PLAINTIFFS’
APPLICATION FOR PRELIMINARY INJUNCTION

1.

Plaintiff-States (Texas; Wisconsin; Alabama; Arkansas; Arizona;

Florida; Georgia; Indiana; Kansas; Louisiana; Paul LePage, Governor of Maine;
Governor Phil Bryant of the State of Mississippi; Missouri; Nebraska; North
Carolina; Tennessee; Utah; and West Virginia) and Individual-Plaintiffs (Neill
Hurley and John Nantz) seek a preliminary injunction to enjoin the enforcement of
the Patient Protection and Affordable Care Act (“ACA”) and its associated
regulations.

2.

As set forth in the accompanying brief in support, Plaintiffs have met

their burden of showing that a preliminary injunction should issue:
a.

First, they have established a likelihood of success on the merits.

The ACA’s central provision, the individual mandate, can longer be construed
as part-and-parcel of a tax penalty—the savings construction adopted in
National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012)—
because Congress eliminated the tax penalty for every individual. And once
that provision is enjoined, the community-rating and guaranteed-issue
provisions that the United States in NFIB conceded were inseverable from the
mandate, and ultimately, the entire ACA, must also be enjoined from
enforcement.
b.

Second, Plaintiffs are likely to suffer numerous irreparable harms

absent an injunction. The evidence submitted with the accompanying brief
demonstrates that the individual mandate causes substantial and irreparable
financial harm to the Individual Plaintiffs and to the State Plaintiffs because
the ACA requires them to spend money for which there is no known avenue for
later recovery. The ACA’s remaining, nonseverable provisions also severely
and irreparably drain the States’ financial resources by increasing their
Medicaid and employer-insurance costs, and dramatically curtail state
sovereignty by preempting or effectively displacing state law.
c.

Third, the balance of the equities and the public interest strongly

favor an injunction. Not only does the United States lack a legitimate interest

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in enforcing an unconstitutional mandate, but once the enforcement of the
mandate is enjoined, the remainder of the ACA must be enjoined to prevent
harms that Congress itself predicted and sought to prevent.
3.

For these reasons and those set forth in detail in the accompanying brief

in support, the Court should issue a preliminary injunction enjoining Defendants
from enforcing the Affordable Care Act and its associated regulations.
Dated, April 26, 2018

Respectfully Submitted,

BRAD D. SCHIMEL
Wisconsin Attorney General

KEN PAXTON
Attorney General of Texas

MISHA TSEYTLIN
Wisconsin Solicitor General

JEFFREY C. MATEER
First Assistant Attorney General

KEVIN M. LEROY
Wisconsin Deputy Solicitor General

BRANTLEY D. STARR
Deputy First Assistant Attorney
General

State of Wisconsin
Department of Justice
17 West Main Street
P.O. Box 7857
Madison, Wisconsin 53707-7857
Tel: [phone]
Attorneys for Wisconsin
/s/ Robert Henneke
ROBERT HENNEKE
Texas Bar No. 24046058
[e-mail]
Texas Public Policy Foundation
901 Congress Avenue
Austin, Texas 78701
Tel: [phone]
Attorney for Individual-Plaintiffs

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
DAVID J. HACKER
Special Counsel for Civil Litigation
Attorney General of Texas
P.O. Box 12548, Mail Code 001
Austin, Texas 78711-2548
Tel: [phone]
Attorneys for Texas

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Additional Counsel
STEVE MARSHALL
Attorney General of Alabama

JOSH HAWLEY
Attorney General of Missouri

LESLIE RUTLEDGE
Attorney General of Arkansas

DOUG PETERSON
Attorney General of Nebraska

MARK BRNOVICH
Attorney General of Arizona

WAYNE STENEHJEM
Attorney General of North Dakota

PAM BONDI
Attorney General of Florida

ALAN WILSON
Attorney General of South Carolina

CHRISTOPHER M. CARR
Attorney General of Georgia

MARTY JACKLEY
Attorney General of South Dakota

CURTIS HILL
Attorney General of Indiana

HERBERT SLATERY, III
Attorney General of Tennessee

DEREK SCHMIDT
Attorney General of Kansas

SETH REYES
Attorney General of Utah

JEFF LANDRY
Attorney General of Louisiana

PATRICK MORRISEY
Attorney General of West Virginia

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CERTIFICATE OF SERVICE
I certify that the foregoing document was electronically filed with the Clerk of
Court using the CM/ECF system, which will send notification of such filing to all
counsel of record.
/s/ Darren McCarty
DARREN MCCARTY

CERTIFICATE OF CONFERENCE
I certify that on April 25, 2018, I conferred with counsel for Defendants, Eric
Beckenhauer, about Plaintiff-States’ and Individual-Plaintiffs’ Application for
Preliminary Injunction. Defendants stated that Defendants will respond to Plaintiffs’
preliminary injunction application on June 7, 2018.

/s/ Darren McCarty
DARREN MCCARTY

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