Texas et al v. United States of America et al

Filing 91

RESPONSE filed by District of Columbia, State of California, State of Connecticut, State of Delaware, State of Hawaii, State of Illinois, State of Kentucky, State of Massachusetts, State of Minnesota, State of New Jersey, State of New York, State of North Carolina, State of Oregon, State of Rhode Island, State of Vermont, State of Virginia, State of Washington re: 39 MOTION for Injunction (Attachments: # 1 Appendix of Supporting Evidence - Part 1, # 2 Appendix of Supporting Evidence - Part 2, # 3 Proposed Order) (Palma, Neli)

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
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,
SOUTH DAKOTA, TENNESSEE, UTAH,
WEST VIRGINIA, NEILL HURLEY, and
JOHN NANTZ,
Plaintiffs,

Civil Action No. 4:18-cv-00167-O

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.
CALIFORNIA, CONNECTICUT,
DISTRICT OF COLUMBIA,
DELAWARE, HAWAII, ILLINOIS,
KENTUCKY, MASSACHUSETTS,
MINNESOTA by and through its
Department of Commerce, NEW JERSEY,
NEW YORK, NORTH CAROLINA,
OREGON, RHODE ISLAND, VERMONT,
VIRGINIA, and WASHINGTON,
Intervenor-Defendants.

INTERVENOR-DEFENDANTS’ BRIEF IN OPPOSITION TO PLAINTIFFS’
APPLICATION FOR A PRELIMINARY INJUNCTION

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TABLE OF CONTENTS
Page
INTRODUCTION ......................................................................................... 1
Factual Background ....................................................................................... 3
A.

The ACA is Central to America’s Healthcare
System ............................................................................. 3
1.

The ACA increases access to affordable and
quality healthcare.................................................. 3

2.

Through the ACA’s Medicaid expansion,
States have provided coverage to millions of
people and reduced healthcare costs. ................... 7

3.

Federal subsidies and State-sponsored
exchanges facilitate the purchase of
healthcare. ............................................................. 8

B.

Preservation of the ACA is Necessary to Prevent
Grievous Harm to the States and Their Residents ........ 10

C.

Courts Have Repeatedly Rejected Attempts to
Strike Down the ACA ................................................... 11

D.

Congress Declined to Repeal the ACA and It
Remains Federal Law ................................................... 13

LEGAL STANDARD.................................................................................. 13
SUMMARY OF ARGUMENT ................................................................... 15
ARGUMENT ............................................................................................... 16
I.

THE MINIMUM COVERAGE PROVISION REMAINS A
CONSTITUTIONALLY VALID EXERCISE OF CONGRESS’S
TAXING POWER ........................................................................ 16
A.

The Minimum Coverage Provision Remains
Constitutional ................................................................ 17

B.

The Production of Revenue at All Times is Not a
Constitutional Requirement for a Lawful Tax .............. 18

i

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TABLE OF CONTENTS
(continued)
Page
C.

Plaintiffs’ Claims Are Not Ripe Because the
Shared Responsibility Payment Will Produce
Revenue for Years to Come .......................................... 21

II.

IF ZEROING OUT THE TAX MAKES THE MINIMUM
COVERAGE REQUIREMENT UNCONSTITUTIONAL, THE
REMEDY IS TO STRIKE THE RECENT AMENDMENT AND
REINSTATE THE PRIOR TAX AMOUNT....................................... 22

III.

EVEN IF THE MINIMUM COVERAGE REQUIREMENT IS NOW
UNCONSTITUTIONAL, THE REST OF THE ACA IS
SEVERABLE .............................................................................. 24
A.

Plaintiffs Carry a Heavy Burden in Asking This
Court to Strike Down Hundreds of Perfectly
Lawful Provisions ......................................................... 25

B.

Severability Clauses Are Unnecessary and There is
No Presumption Against Severability From Failing
to Include Them ............................................................ 27

C.

The ACA’s Remaining Provisions Are Severable
from the Minimum Coverage Provision ....................... 28
1.

The Congress that passed the TCJA
deliberately left the rest of the ACA in
place. ................................................................... 28

2.

The Congress that passed the ACA would
have wanted the rest of the ACA to stand. ......... 30
a.

The majority of the ACA’s provisions
went into effect years before the
minimum coverage requirement. ............. 31

b.

Most of the ACA has nothing to do
with the individual insurance market. ...... 32

c.

The ACA’s community-rating and
guaranteed-issue provisions are also
severable from the mandate. .................... 33
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TABLE OF CONTENTS
(continued)
Page
(1)

(2)

It is not “evident” that
Congress would want to discard
these important consumer
protections in the absence of
the minimum coverage
provision. ....................................... 36

(3)

IV.

Congress independently sought
to end discriminatory
underwriting practices and to
lower administrative costs. ............ 34

The adverse selection concern
from 2010 is no longer a
concern today. ................................ 39

PLAINTIFFS HAVE NOT MET THEIR BURDEN OF
DEMONSTRATING IRREPARABLE INJURY .................................. 43
A.
B.

None of the Harms Identified by the Plaintiff
States Flow from Zeroing Out the Shared
Responsibility Payment ................................................ 44

C.

V.

The Individual Plaintiffs Will Not Suffer Any
Injury From a $0 Tax .................................................... 43

Plaintiffs Mischaracterize Their Costs and
Obligations Under the ACA to Exaggerate Their
Alleged Harm ................................................................ 45

A PRELIMINARY INJUNCTION IS AGAINST THE PUBLIC
INTEREST .................................................................................. 47
A.

The Alleged Harm to Plaintiffs is Far Outweighed
by the Devastating Harm to Defendant States and
Their Citizens ................................................................ 48

B.

Issuing a Preliminary Injunction is Also Against
the Public Interest Because It Would Upend the
Status Quo ..................................................................... 49
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TABLE OF CONTENTS
(continued)
Page
C.

Any Injunction Issued by the Court Should Only
Apply to the Individual Plaintiffs ................................. 50

CONCLUSION ............................................................................................ 50

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TABLE OF AUTHORITIES
(continued)
Page
CASES
Alaska Airlines, Inc. v. Brock
480 U.S. 678 (1987).......................................................................... passim
Ayotte v. Planned Parenthood of N. New England
546 U.S. 320 (2006).......................................................................... passim
Booker v. U.S.
543 U.S. 220 .......................................................................... 25, 26, 38, 39
Canal Authority of State of Fla. v. Callaway
489 F.2d 567 (5th Cir. 1974) ............................................................. 14, 48
Coons v. Lew
762 F.3d 891 (9th Cir. 2014) ................................................................... 12
Davis v. FEC
554 U.S. 724 (2008)................................................................................. 22
Florida ex rel. Atty. Gen. v. U.S. Dep’t of Health and Human
Services
648 F.3d 1235 (11th Cir. 2011) ........................................................ passim
Franks Inv. Co. v. Union Pac. R.R. Co.
534 F.3d 443 (5th Cir. 2008) ................................................................... 44
Frost v. Corp. Com. of Oklahoma
278 U.S. 515 (1928).......................................................................... passim
Hotze v. Burwell
784 F.3d 984 (5th Cir. 2015) ................................................................... 44
Jones v. Cain
600 F.3d 527 (5th Cir. 2010) ......................................................................1

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TABLE OF AUTHORITIES
(continued)
Page
Karaha Bodas Co. v. Negara
335 F.3d 357 (5th Cir. 2003) ............................................................. 14, 48
King v. Burwell
576 U.S. __ (2015)............................................................................ passim
Leavitt v. Jane L.
518 U.S. 137 (1996)................................................................................. 26
Machete Productions, L.L.C. v. Page
809 F.3d 281 (5th Cir. 2015) ................................................................... 44
Martinez v. Mathews
544 F.2d 1233 (5th Cir. 1976) ................................................................. 14
Miss. Power & Light Co. v. United Gas Pipe Line Co.
760 F.2d 618 (5th Cir. 1985) ................................................................... 14
Morgan v. Fletcher
518 F.2d 236 (5th Cir. 1975) ................................................................... 49
Murphy v. Nat’l Collegiate Athletic Ass’n
138 S.Ct. 1461 (2018).................................................................. 32, 33, 39
Nat’l Fed’n of Indep. Bus. v. Sebelius
567 U.S. 519 (2012).......................................................................... passim
New York v. United States
505 U.S. 144 (1992)........................................................................... 27, 31
Nichols v. Alcatel USA, Inc.
532 F.3d 364 (5th Cir. 2008) ............................................................. 14, 43
ODonnell v. Harris Cty., Texas
882 F.3d 528 (5th Cir. 2018) ................................................................... 50
Regan v. Time
468 U.S. 641 (1984)............................................................... 25, 26, 28, 29
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TABLE OF AUTHORITIES
(continued)
Page
Ross v. Goshi
351 F. Supp. 949 (D. Hawaii 1972) ......................................................... 23
Sissel v. U.S. Dep’t of Health & Human Servs.
760 F.3d 1 (D.C. Cir. 2014) ..................................................................... 12
State v. Standard Oil Co.
107 S.W.2d 550 (Tex. 1937) ................................................................... 23
Tate v. American Tugs, Inc.
634 F.2d 869 (5th Cir. 1981) ............................................................. 14, 49
Trump v. Int’l Refugee Assistance Project
137 S. Ct. 2080 (2017)............................................................................. 48
U.S. v. Jackson
390 U.S. 570 (1968)................................................................................. 27
U.S. v. Tufti
542 F.2d 1046 (9th Cir. 1976) ................................................................. 23
United States v. Ross
458 F.2d 1144 (5th Cir. 1972) ................................................................. 19
United States v. Sanchez
340 U.S. 42 (1950)................................................................................... 19
Weissinger v. Boswell
330 F. Supp. 615 (M.D. Ala. 1971) ......................................................... 23
Wenner v. Texas Lottery Comm’n
123 F.3d 321 (5th Cir. 1997) ................................................................... 14
White v. Carlucci
862 F.2d 1209 (5th Cir. 1989) ........................................................... 14, 50

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TABLE OF AUTHORITIES
(continued)
Page
STATUTES
Internal Revenue Code
§ 5000A(a)-(b) ...................................................................................................28
Patient Protection and Affordable Care Act ................................................... passim
Public Law
Pub. L. No. 111-148, 124 Stat, 119 (2010) .................................................19, 20
Pub. L. No. 111-152, 124 Stat. 1029 (2010) ...............................................19, 20
Pub. L. No. 114-113, 129 Stat. 2242 (2016) ...............................................19, 20
Pub. L. No. 115-120, H.R. 190 (2018) .............................................................. 20
Pub. L. No. 115-120, H.R. 195 (2018) ........................................................19, 20
18 United States Code
§ 3553(b)(1) .................................................................................................38, 39
26 United States Code
§ 36B ...........................................................................................................32, 41
§ 45R ...........................................................................................................31, 32
§ 4191 ................................................................................................................ 20
§ 4980I ............................................................................................................... 19
§ 5000A .........................................................................................................2, 17
§ 5000A(d).........................................................................................................12
§ 6072(a) ............................................................................................................21
§ 6402(a) ............................................................................................................21
29 United States Code
§ 207(r) .............................................................................................................. 32
42 United States Code
§ 280h-5 ...............................................................................................................6
§ 280k .................................................................................................................. 6
§ 280k-1 ...............................................................................................................6
§ 280k-2 ...............................................................................................................6
§ 280k-3 ...............................................................................................................6
§ 294e-1 ...............................................................................................................6
§ 299b-33 .............................................................................................................6
§ 299b-34 .............................................................................................................6
§ 300u-13 .............................................................................................................6
§ 300u-14 .............................................................................................................6
§ 300gg(a) ..........................................................................................................33

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TABLE OF AUTHORITIES
(continued)
Page
§ 300gg(a)(1) .....................................................................................................34
§ 300gg-1 .......................................................................................................4, 33
§ 300gg-1(b)(1) .................................................................................................41
§ 300gg-2 .............................................................................................................4
§ 300gg-3 .................................................................................................4, 31, 33
§ 300gg-4 .......................................................................................................4, 34
§ 300gg-4(b) ......................................................................................................33
§ 300gg-11 .....................................................................................................4, 31
§ 300gg-12 .....................................................................................................4, 31
§ 300gg-13 .....................................................................................................4, 31
§ 300gg-14 .....................................................................................................4, 31
§ 300gg-21(a)(2) ................................................................................................ 47
§ 300gg-94(a)(1) ..................................................................................................9
§ 300u–11 ............................................................................................................6
§ 300u–13 ............................................................................................................6
§ 300u–14 ............................................................................................................6
§ 710 .................................................................................................................. 32
§ 1315a ................................................................................................................ 6
§ 1315b ................................................................................................................ 6
§ 1395f ................................................................................................................. 6
§ 1395w–4 ...........................................................................................................6
§ 1395w-4(e)(1)(H) ........................................................................................... 31
§ 1395w-44(p) ...................................................................................................33
§ 1395cc...............................................................................................................6
§ 1395dd ............................................................................................................11
§ 1395ww ............................................................................................................6
§ 1396a ................................................................................................................ 6
§ 1396a(a)(10)(A)(i)(VIII) ............................................................................7, 32
§ 1396a(e)(14)(I)(i) ............................................................................................. 7
§ 1396d(y)(1) .......................................................................................................8
§ 8031(b)-(e) ........................................................................................................9
§ 18022 ................................................................................................................ 4
§ 18031 .............................................................................................................. 32
§ 18091(1) .........................................................................................................37
§ 18091(2)(C) ....................................................................................................35
§ 18091(2)(I) .....................................................................................................40
§ 18091(2)(J) .....................................................................................................36
§ 18091 (a)(2)(C), (F) & (G) ...............................................................................3
CONSTITUTIONAL PROVISIONS
United States Constitution
Article I, § 8, cl. 1 .............................................................................................. 19

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TABLE OF AUTHORITIES
(continued)
Page
COURT RULES
Federal Rules of Civil Procedure
65(b) .................................................................................................................. 45
65(c) ................................................................................................................... 50
80C ...................................................................................................................... 8
OTHER AUTHORITIES
Code of Federal Regulations
42 C.F.R. § 435.150(c) ...................................................................................... 46
45 C.F.R. §§ 154.200-154.230 ............................................................................9
45 C.F.R. § 154.301............................................................................................. 9
45 C.F.R. §§ 155.1000-155.1010 ........................................................................9
45 C.F.R. § 156.20............................................................................................... 9
45 C.F.R. § 156.200............................................................................................. 9
Congressional Record
155 Cong. Rec. S13020 (daily ed. Dec. 11, 2009) ............................................35
155 Cong. Rec. S13692 (daily ed. Dec. 21, 2009) ............................................35
155 Cong. Rec. S13851 (daily ed. Dec. 23, 2009) ............................................35
163 Cong. Rec. S7383 (daily ed. Nov. 29, 2017).............................................. 29
163 Cong. Rec. S7666 (daily ed. Dec. 1, 2017) ................................................ 30
163 Cong. Rec. S7672 (daily ed. Dec. 1, 2017) ................................................ 13
Continuation of the Open Executive Session to Consider an Original
Bill Entitled the Tax Cuts and Jobs Act Before the S. Comm. on
Fin., Senate, 115th Congress, Nov. 15, 2017 ..................................................... 29
House Reports
H.R. 1 (Dec. 22, 2017) ...................................................................................... 13
H.R. 45, 113th ...................................................................................................13
H.R. Rep. No. 111-443, pt. 2 (2010) .................................................................35
H.R. Rep. No. 299, 111 Cong., 1st Sess. pt. 3 (2009) .......................................34
H.R. Rep. No. 443, 111th Cong. 2d Sess. pt. 2 (2010) ...............................34, 39
H.R. 3762, 114th ............................................................................................... 13
H.R. 6079, 112th ............................................................................................... 13
Legislative Counsel, U.S. H.R., House Legislative Counsel’s
Manual on Drafting Style § 328 (1995) ............................................................ 27

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TABLE OF AUTHORITIES
(continued)
Page
Office of the Legislative Counsel, U.S. Senate, Legislative Drafting
Manual § 131 (1997) ......................................................................................... 27
United States Department of Treasury Publications
Pub. No. 1304 ....................................................................................................21
Pub. No. 1415 ....................................................................................................21

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INTRODUCTION
Plaintiffs ask this Court to preliminarily enjoin the entire Patient Protection and
Affordable Care Act (ACA), a landmark piece of legislation that has enabled more than
20 million Americans to gain health coverage, has restructured nearly one-fifth of the
national economy, and has become central to the healthcare system of our country over
the past eight years.1 It is not an overstatement to say that issuing a preliminary
injunction—which the Fifth Circuit has called an “extraordinary and drastic remedy”—
would cause catastrophic harm to tens of millions of Americans. To date, over 11.8
million Americans have gained health insurance through the ACA’s Medicaid expansion,
another over 8 million receive ACA-funded tax credits to purchase health insurance
through the newly-created exchanges, and 133 million Americans (including 17 million
children) with preexisting health conditions cannot be discriminated against by insurance
companies because of their poor health. There is no legal or equitable justification for
depriving tens of millions of Americans of the benefits of these vital healthcare programs.
The remedy that Plaintiffs seek is also profoundly undemocratic. Plaintiffs ask this
Court to impose an outcome by judicial fiat that Congress rejected through the legislative
process. Since the ACA became law in 2010, ACA opponents in Congress have tried—
unsuccessfully—to repeal it at least 70 times. But the fact that Congress (through the
Senate) voted down each of those efforts leads to one unavoidable conclusion: the
Congress that passed the ACA, the Congress that passed the Tax Cuts and Jobs Act
(TCJA), and every Congress in between, has decided to leave nearly every provision of
the ACA in place, choosing instead to modify one provision reducing the future tax
penalty for individuals who do not maintain health insurance. That reflects the will of the

1

Plaintiffs do not raise their Fifth and Tenth Amendment claims or their Administrative
Procedures Act claims (Counts Two-Five in their Amended Complaint) as grounds for seeking a
preliminary injunction. See ECF. No. 40. They have thus waived any reliance on those causes
of action as a basis for the pending motion. Jones v. Cain, 600 F.3d 527, 541 (5th Cir. 2010).

1

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people, as expressed through their democratically elected representatives over multiple
election cycles.
And while courts are vested with the authority to interpret the Constitution and
enforce its limits, they are not empowered to evaluate “the wisdom of the Affordable
Care Act.” Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 588 (2012)
(NFIB). “Under the Constitution, that judgment is reserved to the people.” Id.
Congress’s repeated policy judgment against repeal makes sense given the Congressional
Budget Office’s (CBO) forecast that repeal would strip millions of Americans of their
healthcare coverage, dramatically increase the federal deficit, and lead to Medicare Trust
Fund insolvency. Aaron Dec. ¶¶ 43-44, Appx. 024-025; Corlette Dec. ¶¶ 53, 60, Appx.
100-104. And it is well-established that courts may not use their remedial powers to
circumvent congressional intent, which is precisely what Plaintiffs are requesting.
Plaintiffs have not established any—let alone all—of the four prerequisites for
obtaining the extraordinary relief that they seek. First, Plaintiffs are unlikely to succeed
on the merits of their legal claims because the U.S. Constitution does not require a lawful
tax to produce revenue at all times, and in any event, the ACA’s “minimum essential
coverage”2 requirement will continue to produce revenue for years to come and therefore
Plaintiffs’ claims are not ripe. And if the Congress’s recent amendment to the ACA were
unconstitutional, the appropriate remedy would be to strike that amendment and revert
back to the prior statutory provision which was upheld by the Supreme Court in NFIB.
Second, Plaintiffs cannot show irreparable harm. The individual Plaintiffs will not
suffer any harm because it is perfectly lawful for them to pay a tax of $0 instead of
obtaining ACA-compliant insurance. And the Plaintiff States cannot possibly be harmed

For ease of reference, we refer to the “requirement to maintain minimum essential
coverage” under 26 U.S.C. § 5000A as the “minimum coverage” requirement. This requirement
is sometimes referred to as the “individual mandate,” and the “shared responsibility payment”
under this same provision as the “individual mandate penalty.”
2

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by the reduction of a tax that never applied to them in the first place. Third, any injury to
Plaintiffs is far outweighed by the devastating harm to the Defendant States and their
citizens from enjoining the ACA. The Defendant States stand to lose over half a trillion
dollars in federal funds for healthcare, uncompensated care costs would rise by over a
trillion dollars, six million of their residents would be kicked off of their Medicaid
coverage, tens of billions of dollars in tax credits to subsidize purchasing health insurance
would disappear, and millions of residents with preexisting health conditions would
become unable to purchase or access health coverage. There would be an enormous
human cost from invalidating the ACA. Lastly, a preliminary injunction would also
disserve the public interest because it would upend the status quo and wreak havoc on the
healthcare market for patients, providers, insurance carriers, and the federal and state
governments. Plaintiffs’ request for a preliminary injunction should be denied.

FACTUAL BACKGROUND
A.

The ACA is Central to America’s Healthcare System
1.

The ACA increases access to affordable and quality healthcare.

The parties agree that the ACA is a landmark piece of legislation through which
Congress sought to fundamentally transform the nation’s healthcare system by increasing
access to affordable, quality health care. Its purpose was to increase the number of
Americans with health insurance, lower health insurance costs, and improve financial
security and wellbeing for families. NFIB, 567 U.S. at 538; 42 U.S.C § 18091 (a)(2)(C),
(F) & (G). Congress aimed to do so through a series of reforms, including strengthening
consumer protections in the private insurance market, expanding the traditional Medicaid
program, providing subsidies to lower premiums, and creating effective state health
insurance Exchanges. King v. Burwell, 576 U.S. __, 135 S.Ct. 2480, 2482 (2015).
The ACA has delivered on these promises by making the individual insurance
market more accessible and affordable; expanding and improving Medicaid; modifying
and strengthening the Medicare program; increasing funding and prioritization of

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prevention and public health; and supporting healthcare infrastructure such as community
health centers and the National Health Service Corps. See generally Aaron Dec. ¶¶ 4-41,
Appx. 003-023; Corlette Dec. ¶¶ 23-43, Appx. 092-098.
In the ACA, “Congress addressed the problem of those who [could] not obtain
insurance coverage because of pre-existing conditions or other health issues.” NFIB, 567
U.S. at 547. Congress placed new requirements on insurers that guarantee more
affordable coverage regardless of health status, age, gender or geographic location. The
ACA’s “guaranteed-issue” and “community-rating” provisions bar insurers from denying
coverage because of medical history and from charging unhealthy individuals higher
premiums than healthy individuals. NFIB, 567 U.S. at 547-48. These two provisions are
important ACA consumer protections. Sherman Dec. ¶¶ 3-4, Appx. 417-418; Aaron Dec.
¶¶ 48, 55, 62, 69, 76, 83, 90, 97, 104, 111, 118, 125, 132, 139, 146, 153, 160, Appx. 026059.3 And these provisions have given peace of mind to the millions of Americans with
preexisting health conditions, while improving healthcare access for women, young
adults, veterans, and persons with disabilities.4 Aaron Dec. ¶¶ 13-16, 26, Appx. 008-016;
Isasi Dec. ¶¶ 4-5, 12, 15, ECF No. 15-2 at 7-14; Berns Dec. ¶¶ 3-6, Appx. 077-079;
Corlette Dec. ¶ 9-12, 15-16, 19, 20, Appx. 087-091.

3

Key protections of the ACA that would be impacted by the requested relief include
(among others); guaranteed issue (42 U.S.C. § 300gg-1); guaranteed renewability (42 U.S.C.
§ 300gg-2); prohibition of preexisting condition exclusions (42 U.S.C. § 300gg-3); prohibition of
discrimination based on health status (42 U.S.C. § 300gg-4); prohibition on excessive waiting
periods (more than 90 days) (42 U.S.C. § 300gg-11); prohibition of lifetime or annual limits (42
U.S.C. § 300gg-11); prohibition on recessions once covered (42 U.S.C. § 300gg-12); coverage of
preventative health services (42 U.S.C. § 300gg-13); extension of dependent coverage to 26
years of age (42 U.S.C. § 300gg-14); and the coverage of essential health benefits, including
ambulatory patient services, emergency services, hospitalization, maternity and newborn care,
mental health and substance abuse treatment, prescription drugs, laboratory services,
preventative services and chronic disease management, and pediatric services, including oral and
vision care. 42 U.S.C. § 18022.
4
Examples of preexisting conditions include cancer, diabetes, asthma, heart attack and
heart disease, stroke, high blood pressure, and pregnancy. See The Commonwealth Fund,
“Access to Coverage and Care for People with Preexisting Conditions: How it Changed Under
the ACA.” Appx. 155-161.

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As a result of the ACA’s reforms, the rate of uninsured Americans dropped by 43
percent, resulting in 20 million Americans gaining access to health coverage because of
this law. Aaron Dec. ¶ 5, Appx. 003; Barnes Dec. ¶ 4, Appx. 065-067; Corlette Dec.
¶ 28, Appx. 093; Gobeille Dec. ¶ 4, Appx. 109-110; Johnson Dec. ¶¶ 5-7. Appx. 116;
Kent Dec. ¶ 3, Appx. 119-120; Lee Dec. ¶ 5, Appx. 131-132; Peterson Dec. ¶ 4, 6, Appx.
369-372; Mounts Dec. ¶¶ 7, 9, Appx. 144; Scholsberg Dec. ¶ 4, Appx. 375; Sherman
Dec., ¶ 3, Appx. 417-418; Walker Dec. ¶ 5, Appx. 386-387; Zucker Dec. ¶ 5, Appx. 398400; Allen ¶ 5, Appx. 411. Fewer uninsured individuals have helped healthcare providers
and the Defendant States save money. The ACA lowered hospitals’ costs of providing
uncompensated care by $10.4 billion in 2015 alone; and in States that expanded Medicaid,
uncompensated care costs dropped by around half. Aaron Dec. ¶ 10, Appx. 006; Corlette
Dec. ¶ 34, Appx. 095; Eyles Dec. ¶ 9, ECF No. 15-1 at 96-97. As States have realized
substantial budget savings accordingly. Aaron Dec. ¶¶ 11, 25, Appx. 006-016; Isasi Dec.
¶ 14 n.15, ECF No. 15-2 at 13-14; Mounts Dec. ¶¶ 14-17, Appx. 145; Barnes Dec. ¶ 5,
Appx. 067; Gobeille Dec. ¶ 5, Appx. 111; Walker Dec. ¶ 6, Appx. 387; Shannon Dec.
¶ 7, Appx. 423-424; Schlosberg Dec. ¶ 5, Appx. 375-376; Zucker Dec. ¶ 6, Appx. 400401; Johnson Dec. ¶ 10, Appx. 117; Kofman Dec. ¶ 5, Appx. 125-126; Allen ¶ 6, Appx.
411-412 Bohn ¶ 7, Appx 428. There are even documented ACA savings amongst the
Plaintiff States, including Arkansas ($35.5 million in state fiscal year (SFY) 2014 and
$131 million in SFY15) and West Virginia ($3.8 million in SFY14). Isasi Dec. ¶ 14, n.15
at 7 & 12, ECF No. 15-2 at 13-14.
And despite Plaintiffs’ claims to the contrary, the ACA slowed the growth of
insurance premiums in the group employer market. ECF No. 40 at 20 & 42. During the
initial years of the ACA (from 2010 to 2016), employer-based health care premiums and
out-of-pocket costs grew more slowly than they did in the 10 years before the ACA was
enacted. Aaron Dec. ¶¶ 10, 19, Appx. 006-012; Corlette Dec. ¶¶ 42-43, Appx. 097-098.

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The ACA also improved patients’ quality of care. ACA reforms have developed
care coordination, payment system efficiency, overall medical care quality, and consumer
protections, leading to better health outcomes and delivery of care. Aaron Dec. ¶ 12,
Appx. 007-008; Barnes ¶ 8, Appx. 72-74; Corlette Dec. ¶ 31, Appx. 094; Isasi Dec. ¶¶ 4,
17, ECF No. 15-2 at 7-8 & 15-16; Mounts Dec. ¶¶ 18-31, Appx. 145-148; Eyles Dec. ¶ 8,
ECF No. 15-1 at 96; Kofman Dec. ¶ 6, Appx. 126-127; Allen ¶¶ 8-9, Appx. 412-415.
ACA-authorized initiatives have enhanced quality of care by holding hospitals
accountable for quality and safety (42 U.S.C. § 1395w–4, § 1395ww, § 1395f, § 1395cc);
allowing providers to receive Medicare payments based on quality and care coordination
(42 U.S.C. § 1395ww); and funding efforts to states, public health officials, educational
institutions, and medical providers to improve treatment of chronic illnesses, reduce
health disparities, improve efficiency and value, and to provide comprehensive care,
including preventive care, and mental health and substance use disorder services (42
U.S.C. § 299b-33, § 299b-34, § 280h-5, § 280k, § 280k-1, § 280k-2, § 280k-3, § 1396a,
§ 300u-13, § 300u-14, 42 U.S.C. 294e-1). As a result of ACA reforms that improved the
quality of care, fewer patients became sicker or died in the hospital due to hospitalacquired conditions in 2015 compared to 2010, saving approximately $28 billion in care
costs over this period. Aaron Dec. ¶ 8, Appx. 005.
The ACA also provides new statutory authorization and funding for States to
choose to participate in new and expanded programs that increase access to bettercoordinated and high-quality care for low-income seniors and people with disabilities
through federal programs, improve community health, and otherwise reduce healthcare
spending. ACA § 2405, 42 U.S.C. §§ 300u–11, 300u–13, 300u–14, 1315a, and 1315b;
see also Aaron Dec. ¶¶ 26, 27, 39, Appx. 016-022; Isasi Dec. ¶ 15, ECF No. 15-2 at 14;
Berns Dec. ¶ 6, Appx. 079; Sherman Dec. ¶ 5, Appx. 419; Schlosberg Dec. ¶¶ 4, 7-8,
Appx. 375-380; Peterson Dec. ¶ 7, Appx. 372; Lee Dec. ¶ 6, Appx. 132; Gobeille Dec.

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¶¶ 6-7, Appx. 111-112; Barnes Dec. ¶¶ 6-7, Appx. 067-072; Zucker Dec. ¶¶ 7-9, Appx.
401-406; Walker Dec ¶ 7, Appx. 387; Mounts Dec. ¶ 6, Appx. 144.
2.

Through the ACA’s Medicaid expansion, States have provided
coverage to millions of people and reduced healthcare costs.

The States are directly involved in implementing many of the ACA’s policy
reforms—particularly through its expansion of health coverage to lower-income
residents. Aaron Dec. ¶¶ 21-26, Appx. 013-016; Boyle Dec. ¶¶ 4, 6, Appx. 082, 083.
The ACA expanded Medicaid, which the States administer, making additional segments
of the population eligible to receive coverage. See 42 U.S.C.
§§ 1396a(a)(10)(A)(i)(VIII), 1396a(e)(14)(I)(i) (childless adults with incomes of up to
138% of the federal poverty level may receive Medicaid). Nationwide, over 11.8 million
newly qualified low-income individuals were receiving health coverage through
Medicaid at the end of 2016 in the 33 states that have expanded Medicaid coverage, and
the percentage of adults without insurance in those States dropped by 9.2 percentage
points between 2014 and 2016. Isasi Dec. ¶¶ 7-8, ECF No. 15-2 at 10-11; Aaron Dec. ¶¶
21-22, Appx. 013-014. Medicaid expansion allowed the Defendant States to provide
healthcare for around six million low-income people. Aaron Dec. ¶¶ 85, 92, 106, 127,
134, 148, 155, 162, Appx. 037-059; Kent Dec. ¶ 3, Appx. 119-120; Barnes Dec. ¶ 4,
Appx. 065-067; Walker Dec. ¶ 5, Appx. 386-387; Schlosberg Dec. ¶ 5, Appx. 375-376;
Peterson Dec. ¶ 6, Appx. 370-372; Boyle Dec. ¶ 6, Appx. 083; Johnson Dec. ¶ 6, Appx.
116; Zucker Dec. ¶ 5, Appx. 398-400; Sherman Dec. ¶¶ 3-4, Appx. 417-418.5
Of the 33 states that expanded Medicaid through the ACA, seven are Plaintiffs in
this litigation and represent 1,282,554 expansion enrollees, including: Arizona (109,723);
5

The numbers are 3,700,000 in California, 240,000 in Connecticut, 11,000 in Delaware,
93,184 in the District of Columbia, 33,000 in Hawaii, 340,000 in Illinois, 151,000 in Kentucky,
350,000 in Massachusetts, 36,000 in Minnesota, 555,000 in New Jersey, 301,721 in New York,
159,000 in Oregon, 77,846 in Rhode Island, 3,000 in Vermont, 55,000 in Washington, 313,000
in North Carolina (estimated) if the state enacts an expansion, and 179,000 in Virginia when its
expansion goes into effect. Id.

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Arkansas (316,483); Indiana (278,610); Louisiana (376,668); North Dakota (19,965); and
West Virginia (181,105). Eyles Dec. ¶ 6, ECF No. 15-1 at 95. Maine adopted Medicaid
expansion through a ballot initiative in November 2017, but has not yet implemented it;
however, state officials are under court order to begin implementation.6
States have benefitted from federal matching funds which incentivize States to
expand Medicaid through the ACA. The ACA obligates the federal government to pay
for all or almost all of the cost of this investment: 100% for years 2014-2016, 95% in
2017, 94% in 2018, 93% in 2019, and 90% in 2020 and beyond. See 42 U.S.C.
§ 1396d(y)(1). Based on the government’s promise to pay the bulk of the costs, States
invested over $4.28 billion to expand their Medicaid programs in fiscal year 2015,
compared to the $68.8 billion expended by the federal government in matching funds.7
Expansion states benefit from reduced spending on uncompensated care and additional
revenue from insurer and/or provider taxes. Aaron Dec. ¶ 25, Appx. 015-016; Isasi Dec.
¶ 14, ECF No. 15-2 at 13-14. A recent study found no significant increase in state
Medicaid spending, nor a decrease in education, transportation, or other state spending as
a result of Medicaid expansion. Aaron Dec. ¶ 25, Appx. 015-016.
3.

Federal subsidies and State-sponsored exchanges facilitate the
purchase of healthcare.

The ACA also the authorized creation of state government-run health insurance
marketplaces (also known as exchanges) that allow consumers “to compare and purchase
insurance plans.” King, 135 S.Ct. at 2485; see also Aaron Dec. ¶¶ 17-20, Appx. 010-013.
Unlike the smaller, high-risk pools that some states operated before the ACA, access to

6

See Order on M.R. Civ. P. 80C Appeal of Agency Action, Business and Consumer
Court Civil Action, Doc. No. BCD-AP-18-02. Appx. 163-175.
7
Kaiser Family Foundation, “Medicaid Expansion Spending,” FY 2015. Appx. 177-178.
Spending in FY 2015 does not take into full account those states that expanded Medicaid after
October 1, 2014, including Pennsylvania (expanded January 1, 2015), Indiana (expanded
February 1, 2015), Alaska (expanded September 1, 2015), Montana (expanded January 1, 2016),
and Louisiana (expanded July 1, 2016); Allen Dec. ¶ 4, Appx. 410.

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ACA marketplace coverage is broad-based and affordable. Aaron Dec. ¶¶ 17-20, Appx.
010-013. “[S]tate high-risk pools covered only a fraction of people with preexisting
conditions who lacked insurance, they charged significantly higher premiums than the
individual market, and they excluded coverage for preexisting conditions for a period of
time.”8 The ACA provides refundable tax credits to individuals with household incomes
between 100 and 400 percent of the federal poverty line, but these tax credits can only be
used in the marketplaces. King, 135 S.Ct. at 2487. States may establish their own
exchanges, or use the federal government’s exchange. Id. at 2485.
As of 2018, twelve States (including Defendants California, Connecticut, District of
Columbia, Massachusetts, Minnesota, New York, Rhode Island, Vermont, and
Washington) operate their own state-based exchanges, twenty-eight States rely on
federally-facilitated exchanges, and eleven States partner with the Department of Health
and Human Services to run hybrid exchanges (the latter two use HealthCare.Gov). Aaron
Dec. ¶ 17, Appx. 010-011. States approve premium rates and review the plans to ensure
that the cost and quality of benefits are reasonable and comply with state and federal law.
See 42 U.S.C. §§ 300gg-94(a)(1), 18031(b)-(e); 45 C.F.R. §§ 154.200-154.230, 154.301,
155.1000-155.1010, 156.20, 156.200. Nationally, 10.3 million people obtained coverage
through these exchanges in 2017, and 84 percent of this group—over 8 million people—
receive ACA tax credits to help them pay for premiums. Aaron Dec. ¶ 18, Appx. 011;
Isasi Dec. ¶ 6, ECF No. 15-2 at 10.9

Kaiser Family Foundation, “High-Risk Pools for Uninsurable Individuals,” February
22, 2017. Appx. 180-190; See also White Dec. ¶¶ 1-9; Appx. 388-390.
9
Exchange enrollment is 1,417,248 in California (as of March 2018), 98,260 in
Connecticut, 24,171 in Delaware, 17,808 in the District of Columbia, 16,711 in Hawaii, 673,000
in Illinois, 71,585 in Kentucky, 242,221 in Massachusetts, 90,146 in Minnesota, 274,000 in New
Jersey, 207,083 in New York, 519,803 in North Carolina, 137,305 in Oregon, 29,065 in Rhode
Island, 29,088 in Vermont, 410,726 in Virginia, and 184,070 in Washington. Aaron Dec. ¶¶ 56,
63, 91, 98, 105, 119, 133, 140, 147, 161, Appx. 029-059; DeBenedetti Dec. ¶ 3, Appx. 106;
Kofman Dec. ¶ 4, Appx. 124-125; Peterson Dec. ¶ 6, Appx. 370-372; Maley Dec. ¶ 8, Appx.
139; Johnson Dec. ¶ 7, Appx. 116; Wilson Dec. ¶ 3, Appx. 392-394; Lee Dec. ¶ 4, Appx. 131.
8

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B.

Page 22 of 67 PageID 1013

Preservation of the ACA is Necessary to Prevent Grievous Harm to
the States and Their Residents

Eliminating the ACA would cause immediate and long-term harm to the
Defendant States’ healthcare systems and state budgets, and to their residents’ health and
financial security. Aaron Dec. ¶¶ 42-46, Appx. 023-026; Corlette Dec. ¶¶ 52-60, Appx.
100-104; Isasi Dec. ¶ 18; ECF No. 15-2 at 16; Eyles Dec. ¶ 12, ECF No. 15-1 at 98-99.
The ACA is so interwoven into the health system that its elimination would damage
Medicare, Medicaid, and other programs that pre-date—but were reformed by—the
ACA. Aaron Dec. ¶¶ 42-43, Appx. 023-024; Corlette Dec. ¶ 60, Appx. 103-104. For
example, Medicare probably could not make payments to Medicare Advantage plans
because the ACA replaced the payment system; 19 million beneficiaries could lose their
plans and publicly traded insurers’ stocks could plummet. Id. at ¶ 42, Appx. 023-024.
Public health programs, including those that help combat outbreaks and emerging public
health threats such as the opioid epidemic, and which are now funded only through
ACA programs, would likely cease to operate. Id.
Between 24 and 30 million Americans stand to lose their healthcare coverage, of
whom the vast majority would be in working families.10 Aaron Dec. ¶ 44, Appx. 024025; Corlette Dec. ¶ 53, 55, Appx. 100, 101. Americans would face devastating losses in
healthcare and financial stability gains attained under the ACA. Corlette Dec. ¶ 32-33,
59, Appx. 094-103; Isasi Dec. ¶¶ 5, 11, ECF No. 15-2 at 9; Eyles Dec. ¶ 8, ECF No. 15-1
at 96; Aaron Dec. ¶ 7, Appx. 004-005; Mounts Dec. ¶ 28, Appx. 147; Sherman Dec. ¶ 6,
Appx. 419-420 (discussing less reported difficulty in paying medical bills); Schlosberg
Dec. ¶ 6, Appx. 376-378; Zucker Dec. ¶ 10, Appx. 406-407. Smith Dec. ¶¶ 2-6, Appx.
382-383; Berns Dec. ¶¶ 4-5, Appx. 077-079; Gobeille Dec. ¶ 8, Appx. 112-113; Aaron
Dec. ¶ 12, Appx. 007-008. Families with children born with conditions such as heart
10

For example, an estimated 3 million New Yorkers will lose health coverage if the ACA
is invalidated. Zucker Dec. ¶ 1; Appx. 395-397.

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defects and diabetes would lose guaranteed access to coverage, and would face financial
difficulties paying for life-saving care. Eilers Dec. ¶¶ 3-4, ECF No. 15-1 at 89; Lufkin
Dec. ¶¶ 4-5, Appx. 135. Parents who leave the workplace in order to care for seriously ill
children will once again fear loss of coverage, placing the health and financial stability of
such families at risk. Chism Dec. ¶¶ 5-8, ECF No. 15-1 at 86-87.
The impact on the Defendant States would be profound and widespread. Aaron
Dec. ¶¶ 42-165, Appx. 023-060. The loss of coverage by millions of Americans would
lead to downstream costs to state-funded hospitals, which must provide emergency care
regardless of insurance status or ability to pay. 42 U.S.C. § 1395dd. A dramatic increase
in the number of uninsured would increase the cost of uncompensated care by an
estimated $1.1 trillion over a decade, which would put stress on the financial market,
state budgets and their healthcare systems, and medical providers. Aaron Dec. ¶¶ 44, 53,
60, 67, 74, 81, 88, 95, 102, 109, 116, 123, 130, 137, 144, 151, 158, 165, Appx. 024-060.
Most directly, Defendant States would collectively lose $608.5 billion dollars of
anticipated federal funds used to provide healthcare to their residents, including:
California $160.2 billion; Connecticut $14.8 billion; Delaware $3.6 billion; District of
Columbia $1.7 billion; Hawaii $4.3 billion; Illinois $49.9 billion; Kentucky $ 49.7
billion; Massachusetts $22.5 billion; Minnesota $16.4 billion; New Jersey $59.7 billion;
New York $57.2 billion; North Carolina $59.0 billion; Oregon $38.4 billion; Rhode
Island $7.4 billion; Vermont $2.9 billion; Virginia $18 billion; and Washington $42.8
billion. Aaron Dec. ¶ 53, 60, 67, 74, 81, 88, 95, 102, 109, 116, 123, 130, 137, 144, 151,
158, 165, Appx. 028-060; Barnes ¶ 3, Appx. 64-65; Peterson ¶ 5, Appx. 370; Maley ¶ 7,
Appx. 139; Kent Dec. ¶ 4, Appx. 120-121; Bohn ¶ 9, Appx. 429.
C.

Courts Have Repeatedly Rejected Attempts to Strike Down the ACA

Since its adoption, the ACA has been the subject of intense litigation, including
review by the United States Supreme Court twice. NFIB, 567 U.S. at 540-43; King, 135
S.Ct. at 2480 (upholding ACA authorization of tax credits for purchases on the federally-

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facilitated exchange). The Supreme Court has rejected claims that would have gutted its
key reforms (striking down only the mandatory component of Medicaid expansion) and
provided lower courts ample guidance in resolving challenges to the ACA. In King, the
high court concluded: “Congress passed the Affordable Care Act to improve health
insurance markets, not to destroy them. If at all possible, we must interpret the Act in a
way that is consistent with the former and avoids the latter.” 135 S.Ct. at 2496.
In NFIB, the Supreme Court provided similar guidance stating: “every reasonable
construction must be resorted to, in order to save a statute from unconstitutionality.” 567
U.S. at 521. The Court upheld the constitutionality of the minimum coverage provision,11
concluding that Congress had the power to impose a tax on those without health
insurance. Id. at 574-75. It also found that States could decide whether to participate in
Medicaid expansion. Id. at 587, 645-646.12 Since NFIB, numerous litigants have
attempted to undermine the ACA’s core provisions, but time and again, courts have
rebuffed those efforts, avoiding a “calamitous result.” King, 135 S. Ct. at 2496 (rejecting
interpretation of ACA that would have “destroy[ed]” the health insurance markets created
by the ACA); see also e.g. Sissel v. U.S. Dep’t of Health & Human Servs., 760 F.3d 1, 3
(D.C. Cir. 2014), cert. denied 136 S. Ct. 925 (2016) (rejecting claim that ACA violated
the Constitution’s Origination Clause); Coons v. Lew, 762 F.3d 891, 902 (9th Cir. 2014),
as amended, (Sept. 2, 2014), cert. denied, __ U.S. ___, 135 S.Ct. 1699 (2015) (ACA
preempted Arizona law that allowed citizens to avoid coverage and mandate penalties).

11

The minimum coverage requirement exempts certain individuals, such as prisoners and
“individuals not lawfully present.” 26 U.S.C. § 5000A(d).
12
NFIB left untouched other ACA changes to Medicaid, such as a new mandatory
eligibility category for former foster youth up to age 26, as well as a shift of children ages 6 and
18, with incomes beneath 133% of the federal poverty level, from CHIP to Medicaid. These
provisions form a basis for the Plaintiffs’ alleged “harm.” Ghasemi Decl. ¶ 2, ECF No. 41 at 021.

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D.

Page 25 of 67 PageID 1016

Congress Declined to Repeal the ACA and It Remains Federal Law

Since its passage in 2010, Congress has voted on attempts to repeal the law an
estimated 70 times, yet all such efforts have been voted down. See, e.g., H.R. 3762, 114th
Cong. (2015), H.R. 45, 113th Cong. (2013), H.R. 6079, 112th Cong. (2012).13 In avoiding
any repeal (partial or full), Congress has repeatedly made a policy judgment to avoid
stripping millions of Americans of their federally-entitled healthcare coverage. Aaron
Dec. ¶¶ 43-44, Appx. 024-025 (discussing 2015-2017 CBO reports finding that a partial
or full repeal of the ACA would result in 24-29.8 million people becoming uninsured, an
increase in the federal deficit, and lead to Medicare Trust Fund insolvency).
In December 2017, as part of an overall revision to federal income tax laws,
Congress amended the tax code by reducing the shared responsibility payment to zero
dollars for individuals failing to maintain health insurance coverage. See P.L. 115-97,
2017 H.R. 1, at *2092 (Dec. 22, 2017). By design, this change did not repeal any
statutory provision of the ACA. Id. As Senator Pat Toomey (R-PA) emphasized, “We
don’t change any of the subsidies. They are all available to anyone who wants to
participate. We don’t change the rules. We don’t change eligibility. We don’t change
anything else.”14 Additional floor debate prior to passage of the TCJA (as discussed
further below) demonstrates a clear congressional intent to preserve the remainder of the
ACA. Nevertheless, based on this single change, Plaintiffs ask this Court to strike down
the entire ACA in direct contravention of Congress’s stated intent.
LEGAL STANDARD
A preliminary injunction is an “extraordinary and drastic remedy, not granted
routinely, but only when the movant, by a clear showing, carries the burden of
For a list of efforts, see Cong. Research Serv., “Legislative Actions in the 112th, 113th,
and 114 Congresses to Repeal, Defund, or Delay the Affordable Care Act,” February 7, 2017,
Appx. 192-219.
14
163 Cong. Rec. S7672 (daily ed. Dec. 1, 2017).
https://www.congress.gov/crec/2017/12/01/CREC-2017-12-01-senate.pdf.
13
th

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persuasion.” White v. Carlucci, 862 F.2d 1209, 1211 (5th Cir. 1989). In the Fifth
Circuit, the “four prerequisites for the extraordinary relief” of a preliminary injunction
are: (1) a substantial likelihood that plaintiff will prevail on the merits; (2) a substantial
threat that plaintiff will suffer irreparable injury if the injunction is not granted; (3) that
the threatened injury to plaintiff outweighs the threatened harm the injunction may do to
defendant; and (4) that granting the preliminary injunction will not disserve the public
interest. Canal Authority of State of Fla. v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974).
Relief should only be granted if the movant has clearly carried the burden of
persuasion on all four requirements; failure to establish any element is grounds for denial.
Nichols v. Alcatel USA, Inc., 532 F.3d 364, 372 (5th Cir. 2008). The “decision to grant a
preliminary injunction is treated as the exception rather than the rule.” Karaha Bodas
Co. v. Negara, 335 F.3d 357, 363-64 (5th Cir. 2003). Even when a plaintiff establishes
each of the four elements, the decision remains discretionary with the district court.
Miss. Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir. 1985).
Plaintiffs carry an especially heavy burden when they seek a mandatory (as
opposed to a prohibitory) injunction.15 “Mandatory preliminary relief, which goes well
beyond simply maintaining the status quo pendente lite, is particularly disfavored, and
should not be issued unless the facts and law clearly favor the moving party.” Martinez
v. Mathews, 544 F.2d 1233, 1243 (5th Cir. 1976). Because “[a]n indispensable
prerequisite to issuance of a preliminary injunction is prevention of irreparable injury,
[o]nly in rare instances is the issuance of a mandatory preliminary injunction
proper.” Tate v. American Tugs, Inc., 634 F.2d 869, 870 (5th Cir. 1981).

“[T]he issuance of a prohibitory injunction freezes the status quo, and is intended to
preserve the relative positions of the parties until a trial on the merits can be held.” Wenner v.
Texas Lottery Comm'n, 123 F.3d 321, 326 (5th Cir. 1997).
15

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SUMMARY OF ARGUMENT
The Court should deny Plaintiffs’ request for a preliminary injunction because
Plaintiffs have not established any—let alone all—of the four prerequisites for obtaining
such extraordinary relief. First, Plaintiffs are unlikely to prevail on the merits.
Continuous production of revenue is not a constitutional requirement for a tax, and the
minimum coverage requirement will continue to produce revenue for years to come. If
the Court nevertheless concludes that the minimum coverage requirement will become
unconstitutional once it ceases to generate revenue, under long-standing and controlling
Supreme Court precedent, the proper remedy is to strike the unconstitutional amendment
and revert back to the prior statutory provision which was upheld in NFIB.
If the Court reaches the severability question, it should sever the unconstitutional
provision and leave the remainder of the ACA intact, as the Supreme Court has done in
almost every case over the past century. The touchstone for any decision about remedy is
legislative intent, which a court cannot use its remedial powers to circumvent. Here, the
Congress that passed the TCJA expressly and intentionally left the rest of the ACA
untouched. Striking down the entire ACA would disregard that intent and impose an
outcome that Congress chose not to achieve through the legislative process. Even if the
severability inquiry turned on the intent of the Congress that enacted the ACA (and it
does not), Plaintiffs have not come close to demonstrating that it is “evident” that
Congress would have wished for the entire ACA to be struck down just because a later
Congress reduced the tax for not maintaining health insurance to $0.
Second, Plaintiffs cannot demonstrate that they will suffer irreparable injury in the
absence of injunctive relief. The individual Plaintiffs will suffer no harm whatsoever
because it is perfectly lawful for them to pay a tax of $0 instead of obtaining ACAcompliant insurance. And because the shared responsibility payment does not apply to
the States, they cannot possibly be harmed by its reduction.

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Third, the alleged harm to Plaintiffs is far outweighed by the devastating harm to
the Defendant States and their citizens that enjoining the ACA would cause. The
Defendant States stand to lose over half a trillion dollars in federal funds for healthcare;
six million of their residents would be kicked off of Medicaid; billions of dollars in tax
credits to subsidize health insurance would disappear, and millions with preexisting
health conditions would become unable to purchase affordable health insurance.
Fourth, a preliminary injunction is not in the public interest as it will inflict
catastrophic harm on millions of Americans. The request is also a misuse of the
preliminary injunction doctrine which is intended to preserve the status quo until the
merits of a case are decided. Here, Plaintiffs do not seek to preserve the status quo, but to
upend it. Their preferred remedy would uproot a complex and far-reaching law that has
touched almost every facet of our healthcare system. Enjoining the ACA would
completely disrupt the healthcare market at every level: for patients, providers, insurance
carriers, and the federal and state governments. The application for a preliminary
injunction should be denied.

ARGUMENT
I.

THE MINIMUM COVERAGE PROVISION REMAINS A CONSTITUTIONALLY
VALID EXERCISE OF CONGRESS’S TAXING POWER
Plaintiffs challenge the constitutionality of the minimum coverage provision once

the shared responsibility payment is reduced to $0 in 2019. Specifically, Plaintiffs claim
that the minimum coverage provision will exceed Congress’s authority under the
Taxation Clause because it will cease generating revenue for the federal government. For
a number of reasons, Plaintiffs are mistaken. First, the minimum coverage provision still
maintains the tax-like features identified in NFIB. Second, the production of revenue at
all times is not a constitutional requirement for a lawful tax. Congress routinely enacts
taxes with delayed effective dates, taxes that are suspended for periods of time, and
otherwise structures taxes in ways which may not raise revenue for periods of time. The
ACA itself includes several such taxes. Third, even if raising revenue at all times was an

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ironclad constitutional requirement, the shared responsibility payment will continue to
raise revenue for years to come because liability from 2018 is not due until April 2019,
and many individuals pay their taxes late and the federal government will collect them
through offsets years after they come due. Plaintiffs’ claims are therefore not ripe.
A.

The Minimum Coverage Provision Remains Constitutional

The minimum coverage provision continues to meet the NFIB factors and
therefore remains constitutional. In NFIB, the Supreme Court explained that the shared
responsibility payment “looks like” a tax in several respects. NFIB, 567 U.S. 563-64.
First, the requirement to pay is found in the Internal Revenue Code and enforced by the
IRS which must assess and collect it “in the same manner as taxes.” Id. The payment is
based on “such familiar factors as taxable income, number of dependents, and joint filing
status.” Id. at 563. Second, the shared responsibility payment produces “at least some
revenue for the Government.” Id. at 564. Third, the payment is a tax and not a penalty
because the tax amount would be far less than the cost of purchasing health insurance for
those who make the “financial decision” to pay rather than purchase coverage. Id. at 566.
The Court thus concluded that because it had a “duty to construe a statute to save it, if
fairly possible, that § 5000A can be interpreted as a tax.” Id. at 574.
The fact that the shared responsibility payment raised revenue was just one of
several factors that caused it to resemble a tax, and the generation of revenue was not
central to the Court’s constitutional determination. The Court noted that “[a]lthough the
payment will raise considerable revenue, it is plainly designed to expand health insurance
coverage,” which is a perfectly valid exercise of Congress’s taxing powers.16 NFIB, 567

Although the Supreme Court noted that the “essential feature of any tax” was that it
“produces at least some revenue for the Government,” it did not hold that the ACA’s shared
responsibility provision had to raise revenue in order for it to be constitutional—much less that it
had to raise revenue every year that the provision remains in effect. NFIB, 567 U.S. at 564-67.
To the contrary, the Supreme Court concluded that the ACA’s shared responsibility provision
was a tax based on a coterie of other characteristics. Id.
16

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U.S. at 567. In fact, if all non-exempt taxpayers made the “financial decision” to
purchase insurance, the provision would not raise any revenue whatsoever. Id. at 566.
The shared responsibility payment continues to maintain these tax-like
characteristics. Because only the dollar amount of the shared responsibility payment was
changed (and could be changed again), its provisions are still contained within the
Internal Revenue Code and tied to household income and filing status, and non-exempt
households can continue to make a “financial decision” as to whether to purchase
insurance coverage.17 And as discussed below, the tax penalty will generate revenue
beyond January 1, 2019, because this year’s tax is not due until April 15, 2019, and the
IRS can collect the tax for 2018 by way of offsets until all sums due are collected.
B.

The Production of Revenue at All Times is Not a Constitutional
Requirement for a Lawful Tax

The production of revenue at all times is a not a constitutional requirement for a tax
to be lawful. Congress routinely enacts taxes with delayed effective dates and/or taxes
that may not raise revenue in all calendar years, including numerous examples found in
the ACA itself such as the so called “Cadillac Tax,” the Medical Device Tax, and the
Health Insurance Providers Tax. The shared responsibility payment has now joined that
list of ACA taxes for which Congress has suspended collection, but retains the option of
increasing in future years. The shared responsibility payment has not been rendered
unconstitutional merely because it will be $0 in 2019.
Congress’s authority to levy taxes is contained in the United States Constitution,
which provides that “Congress shall have Power to lay and collect Taxes, Duties, Imposts
and Excises, to pay the Debts and provide for the common Defence and general Welfare
17

Although still a lawful tax, in the alternative, the minimum coverage provision may
now be sustained under the Commerce Clause. In NFIB, the Court held that the minimum
coverage provision exceeded Congress’s Commerce Clause powers because it “compels
individuals to become active in commerce by purchasing a product.” NFIB, 567 U.S. at 552.
But with a tax of zero dollars, there is no compulsion. The constitutional problem—compelling
the purchase of insurance—is no longer present absent any penalty for failing to do so.

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of the United States.” U.S. Const. art I, § 8, cl. 1. These taxing and spending powers
give the federal government “considerable influence even in areas where it cannot
directly regulate.” NFIB, 567 U.S. at 537. A tax does not cease to be valid because it
discourages or deters the activities taxed. United States v. Sanchez, 340 U.S. 42, 44
(1950). A taxing statute is also valid “even though the revenue obtained is obviously
negligible . . . or the revenue purpose of the tax may be secondary.” Id. As the Fifth
Circuit has stated, the “motives that move Congress to impose a tax are no concern of the
courts . . . that an act accomplishes another purpose than raising revenue does not
invalidate it.” United States v. Ross, 458 F.2d 1144, 1145 (5th Cir. 1972).
In light of the broad taxing power afforded by the Constitution, it is not unusual for
Congress to enact taxes with delayed effective dates or which are suspended for periods
of time, including the shared responsibility payment that did not become effective until
2014. NFIB, 567 U.S. at 539. The ACA itself contains several examples of such taxes.
The ACA’s “Cadillac Tax” is a 40% excise tax on employer-sponsored healthcare
coverage plans with premiums above specified thresholds. 26 U.S.C. § 4980I. When
first enacted as part of the ACA, it had an effective date of 2013. Pub. L. No. 111-148,
124 Stat. 119 (2010). Since then, it has been amended three times to delay its start date.18
In light of these delays, the “Cadillac Tax” has not yet raised any revenue, unlike the
billions already generated by the shared responsibility payment.
The Medical Device Tax, which imposes a 2.3% excise tax on taxable medical
devices, was enacted as part of Section 1405(c) of the Health Care and Education
Reconciliation Act (HCERA) in 2010. Pub. L. No. 111-152, 124 Stat. 1029 (2010). It

18

On March 30, 2010, Section 1401(b) of the HCERA changed the effective date of the
tax to 2018. Pub. L. No. 111-152, 124 Stat. 1029 (2010). Section 101 of the Consolidated
Appropriations Act of 2016, enacted December 18, 2015, further delayed the start date to 2020.
Pub. L. No. 114-113, 129 Stat. 2242 (2016). And on January 22, 2018, Section 4002 of the
continuing appropriations act pushed the effective date back to 2022. Pub. L. No. 115-120, H.R.
195 (2018).

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was effective for sales after December 31, 2012, and was collected for calendar years
2013-2015. The Consolidated Appropriations Act of 2016 amended 26 U.S.C. § 4191 to
impose a moratorium on the tax for sales between January 1, 2016 and December 31,
2017. Pub. L. No. 114-113, 129 Stat. 2242 (2015). This tax is again subject to a further
moratorium through December 31, 2019 that is retroactive for sales after December 31,
2017. Pub. L. No. 115-120, H.R. 195 (2018). The Health Insurance Providers Tax was
enacted as part of ACA Section 9010, and imposes an annual fee on large health
insurance providers. Pub. L. No. 111-148, 124 Stat. 119 (2010). ACA Section 10905(f)
made the tax effective for all premiums written after December 31, 2009. Id. Section
1406(a)(6) of the HCERA delayed the tax until 2014. Pub. L. No. 111-152, 124 Stat.
1029 (2010). The tax was collected from 2014-2016, then suspended for 2017. Pub. L.
No. 114-113, 129 Stat. 2242 (2015). It will again be collected in 2018.19 Most recently,
this tax was suspended for 2019. Pub. L. No. 115-120, H.R. 190 (2018).
These ACA taxes demonstrate how Congress routinely suspends or delays
impositions of taxes. By merely zeroing out the shared responsibility payment while
leaving the minimum coverage provision in place, Congress intentionally left open the
possibility that it will increase that tax in future years. With the stroke of a pen, Congress
can increase the shared responsibility payment through the budget reconciliation process,
just as it zeroed it out through that process. The fact that Congress reduced the shared
responsibility payment to $0 commencing in 2019 is no different than these other ACA
taxes which have not generated revenue each tax year since enactment. There is no
constitutional infirmity here.

19

Internal Revenue Serv., Affordable Care Act Provision 9010 - Health Insurance
Providers Fee, (Rev. Mar. 2018). Appx. 221-227.

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Plaintiffs’ Claims Are Not Ripe Because the Shared Responsibility
Payment Will Produce Revenue for Years to Come

Even if Plaintiffs were correct that a constitutionally-valid tax must produce
revenue at all times, it will be years before the shared responsibility payment ceases to do
so. Plaintiffs’ claims are therefore not ripe. Since the shared responsibility payment is
not decreased to zero until 2019, non-exempt taxpayers will still be liable for this penalty
as part of taxes due on April 15, 2019. See 26 U.S.C. § 6072(a). The shared
responsibility payment will yield revenue for the federal government in the range of $3 to
$5 billion for 2018, based on the most recent data available.20
And much of that revenue will flow into the federal government’s coffers after
April 15, 2019. Like other taxes, the IRS may collect on any unpaid penalty from 2018
(or prior years) via offsets under 26 U.S.C. § 6402(a). And approximately 26% of
individuals do not file their taxes on time, underreport their assets, or pay too little tax
when they initially file.21 Accordingly, the federal government will likely continue to
collect shared responsibility payments owed from 2018 until 2020 or beyond. The shared
responsibility payment will thus “produce at least some revenue for the Government”
long after January 1, 2019. NFIB, 567 U.S. 564. Therefore, even if Plaintiffs’ theory
were legally sound, the Court could not enjoin the minimum coverage requirement until it
ceased producing any revenue for the government several years down the road.
Plaintiffs’ claims are therefore not ripe, and this Court lacks jurisdiction to consider them.

20

In 2015, the last IRS reported year, the shared responsibility payment totaled $3.1
billion. See Internal Revenue Serv., U.S. Department of the Treasury, Pub. No. 1304, Individual
Income Tax Returns 2015 26 (Rev. Sept. 2017). Appx. 229-230. And CBO estimates that
amount will be around $5 billion in 2018. See Cong. Budget Off., Repealing the Individual
Health Insurance Mandate: An Updated Estimate 2, Appx. 233.
21
In 2016, the IRS reported that for tax years 2008-2010, the estimated voluntary
compliance rate (VCR) of individual tax filers was 74%, reflecting a noncompliance rate
(including nonfiling, underreporting, and underpayment) of approximately a quarter of
taxpayers. Internal Revenue Serv., Research, U.S. Dep’t of the Treasury, Pub. No. 1415, Federal
Tax Compliance Research: Tax Gap Estimates for Tax Years 2008–2010 11 (2016), Appx. 254.

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A plaintiff’s standing to bring a cause of action is assessed at the time the suit was
filed. Davis v. FEC, 554 U.S. 724, 734 (2008) (“While the proof required to establish
standing increases as the suit proceeds…the standing inquiry remains focused on whether
the party invoking jurisdiction had the requisite stake in the outcome when the suit was
filed.”). “A party facing prospective injury has standing to sue where the threatened
injury is real, immediate, and direct.” Id. But here, the government will earn revenue
from the shared responsibility payment at least through 2019, and likely for years
afterwards; therefore, any injury that might occur once the shared responsibility payment
ceases producing any revenue is plainly not “real, immediate, and direct.” Id. Plaintiffs’
claims are not ripe, and the Court cannot consider them at this time. Id.
In sum, the shared responsibility payment remains a constitutionally valid exercise
of Congress’s taxing power, and this Court lacks jurisdiction to consider this challenge.
II.

IF ZEROING OUT THE TAX MAKES THE MINIMUM COVERAGE
REQUIREMENT UNCONSTITUTIONAL, THE REMEDY IS TO STRIKE THE
RECENT AMENDMENT AND REINSTATE THE PRIOR TAX AMOUNT
If the Court nevertheless concludes that the ACA’s minimum coverage requirement

is unconstitutional once the tax penalty becomes $0 in 2019, the correct remedy is to
declare only that amended provision unconstitutional. Under long-standing principles of
statutory construction, when a legislature purports to amend an existing statute in a way
that would render the statute (or part of the statute) unconstitutional, the amendment is
void, and the statute continues to operate as it did before the invalid amendment was
enacted. See Frost v. Corp. Com. of Oklahoma, 278 U.S. 515, 525-527 (1928) (holding
that when a valid statute is amended and the amendment is unconstitutional, the
amendment “is a nullity and, therefore, powerless to work any change in the existing
statute, that [existing] statute must stand as the only valid expression of legislative
intent”). The proper remedy is to strike the amendment that reduced the tax liability to
$0 and revert back to the prior tax penalty found constitutional in NFIB.

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In Frost, the Supreme Court ruled that an amendment to an Oklahoma licensing
statute—passed ten years after the original statute was enacted—violated the
Constitution’s equal protection clause. Frost, 278 U.S. at 521-22. The Court then
explained that the remedy for addressing an unconstitutional amendment to a statute was
fundamentally different than the one used to cure an unconstitutional provision in the
original statute. Id. at 525-26. If the licensing law “as originally passed had contained
the proviso, the effect would be to render the entire section invalid.” Id. at 525.
However, “the proviso here in question was not in the original section” and “since the
amendment is void for unconstitutionality, it cannot be given that effect, ‘because an
existing statute cannot be recalled or restricted by anything short of a constitutional
enactment.’” Id. at 526 (citing Davis v. Wallace, 257 U.S. 478, 485 (1922)).
In other words, when “the statute, before the amendment, was entirely valid” and “a
different Legislature” passes an unconstitutional amendment, that amendment “is a
nullity and, therefore, powerless to work any change in the existing statute, that [existing]
statute must stand as the only valid expression of the legislative intent.” Id. at 526-27
(emphasis added). Under such circumstances—which mirror the situation here—only the
recent amendment is invalidated and the statute reverts back to its original form. Id.
The courts have consistently applied this principle over the past century. See, e.g.,
U.S. v. Tufti, 542 F.2d 1046, 1047 (9th Cir. 1976) (“we applied the fundamental principle
of statutory construction that a void act cannot operate to repeal a valid existing statute”);
Ross v. Goshi, 351 F. Supp. 949, 954 (D. Hawaii 1972) (“it is a general rule of
application that, where an act purporting to amend and re-enact an existing statute is void,
the original statute remains in force); Weissinger v. Boswell, 330 F. Supp. 615, 625 (M.D.
Ala. 1971) (“The elementary rule of statutory construction is without exception that a
void act cannot operate to repeal a valid existing statute, and the law remains in full force
and operation as if the repeal had never been attempted.”); State v. Standard Oil Co., 107

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S.W.2d 550, 557 (Tex. 1937) (“[W]here an amendment to an act has been declared
invalid, the original [a]ct remains in full force and effect”).
In light of these authorities, even if the Court were to agree with Plaintiffs that the
ACA’s minimum coverage requirement—as amended by the TCJA—becomes
unconstitutional because it will cease raising revenue at some point in the future, and that
Plaintiffs’ contentions are ripe for resolution, the proper response is to strike down the
unconstitutional amendment. Frost, 278 U.S. at 526-27. And the previous tax penalty—
passed years earlier by a prior Congress and upheld by the Supreme Court—“must stand
as the only valid expression of legislative intent.” Id. at 527.
III. EVEN IF THE MINIMUM COVERAGE REQUIREMENT IS NOW
UNCONSTITUTIONAL, THE REST OF THE ACA IS SEVERABLE
For the reasons outlined above, the Court should conclude that the ACA’s minimum
coverage requirement, even with a $0 tax penalty beginning next year, is fully
constitutional. And if not, the remedy is to strike down the recent amendment and
reinstate the prior payment. But even if Plaintiffs could overcome these significant
hurdles, they still cannot meet their heavy burden of demonstrating that the entire ACA
should be struck down because a single provision is unconstitutional. The ACA’s many
goals are still advanced even without the minimum coverage requirement.
Plaintiffs have not identified a single instance—and Intervenor-Defendants are not
aware of one—in which the Supreme Court has struck down the entirety of a federal
statute with the breadth and scope of the ACA based on a single provision being
unconstitutional. The ACA contains 10 titles, stretches over 900 pages, contains
hundreds of provisions, and has been the law for over eight years. NFIB, 567 U.S. at
538-39. Striking down the entire statute, including hundreds of perfectly lawful
provisions—most of which have nothing to do with the individual insurance market—
would be an extraordinary result. As the Eleventh Circuit explained when it declined to
invalidate the entire ACA, “in the overwhelming majority of cases, the Supreme Court

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has opted to sever the constitutionally defective provision from the remainder of the
statute.” Florida ex rel. Atty. Gen. v. U.S. Dep’t of Health and Human Services, 648 F.3d
1235, 1320-21 (11th Cir. 2011) (holding that the minimum coverage requirement was
unconstitutional but could be severed from the rest of the ACA), reversed in part by
NFIB, 567 U.S. 519 (holding that the minimum coverage requirement was a
constitutionally valid tax and therefore not addressing its severability from the rest of the
ACA). The result that Plaintiffs seek is truly unprecedented, fundamentally
undemocratic, and should be soundly rejected by the Court.
A.

Plaintiffs Carry a Heavy Burden in Asking This Court to Strike
Down Hundreds of Perfectly Lawful Provisions

It is well-established that when “review[ing] the constitutionality of a legislative
act, a federal court should act cautiously” because a “ruling of unconstitutionality
frustrates the intent of the elected representatives of the people.” Regan v. Time, 468
U.S. 641, 652 (1984); see also Ayotte v. Planned Parenthood of N. New England, 546
U.S. 320, 329 (2006). It is a “settled premise that severability is fundamentally rooted in
a respect for separation of powers and notions of judicial restraint.” Florida ex rel. Atty.
Gen., 648 F.3d at 1320-21. A court “must refrain from invalidating more of the statute
than is necessary.” Booker v. U.S., 543 U.S. 220, 258. “Whenever an act of Congress
contains unobjectionable provisions separable from those found to be unconstitutional, it
is the duty of this court to so declare, and to maintain the act in so far as it is valid.”
Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987).
Accordingly, “when confronting a constitutional flaw in a statute,” courts “sever its
problematic portions while leaving the remainder intact.” Ayotte, 546 U.S. at 328-29.
Simply put, “[t]he presumption is in favor of severability.” Regan, 468 U.S. at 653; see
also Florida ex rel. Atty. Gen., 648 F.3d at 1241 (concluding that the minimum coverage

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requirement is severable from the rest of the ACA “because of the Supreme Court’s
strong presumption of severability and as a matter of judicial restraint”).22
Determining “[w]hether an unconstitutional provision is severable from the
remainder of the statute . . . is largely a question of legislative intent . . .” Regan, 468
U.S. at 653. But those seeking to overcome the presumption of severability face a heavy
burden, one Plaintiffs cannot carry. “Unless it is evident that the Legislature would not
have enacted those provisions which are within its power, independently of that which is
not, the invalid part may be dropped if what is left is fully operative as a law.” Alaska
Airlines, 480 U.S. at 684 (emphasis added); see also NFIB, 567 U.S. at 587 (“Unless it is
‘evident’ that the answer is no, we must leave the rest of the Act intact.”). It is axiomatic
that the “touchstone for any decision about remedy is legislative intent, for a court cannot
use its remedial powers to circumvent the intent of the legislature.” Ayotte, 546 U.S. at
330; see also NFIB, 567 U.S. at 586 (same). As long as the rest of the statute is: (1)
constitutionally valid; (2) capable of “functioning independently”; and (3) consistent with
Congress’s basic objectives in enacting the statute, the Court severs the unconstitutional
provision and leaves the rest intact. Booker, 543 U.S. at 258-59.
Under these well-settled precedents, if a court finds a statutory provision
unconstitutional, the court asks a simple question, “[w]ould the legislature have preferred
what is left of its statute to no statute at all?” Ayotte, 546 U.S. at 330; see also Leavitt v.
Jane L., 518 U.S. 137, 143 (1996) (“The relevant question, in other words, is not whether
the legislature would prefer (A+B) to B, because by reason of the invalidation of A that

Plaintiffs flip the presumption of severability on its head, asserting that “the
severability inquiry proceeds in two steps, both of which must be satisfied for a provision to be
severable.” ECF No. 40 at 27. But no case says that. Plaintiffs cite Alaska Airlines, but that
decision confirms that a court must sever the unconstitutional provision from the rest of the
statute “[u]nless it is evident that the Legislature would not have enacted those provisions which
are within its power, independently of that which is not” so long as “what is left is fully operative
as a law.” Alaska Airlines, 480 U.S. at 684. Like every other Supreme Court case, Alaska
Airlines affirms the strong presumption in favor of severability.
22

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choice is no longer available. The relevant question is whether the legislature would
prefer not to have B if it could not have A as well.”). As shown below, there can be little
doubt that the Congress that passed the ACA and the Congress that zeroed out the shared
responsibility payment would have wanted the remainder of the ACA to stand. Plaintiffs
have not come close to meeting their burden of proving that it is “evident” that Congress
would have wanted Medicaid expansion, tax credits, consumer protections for 133
million Americans with preexisting conditions, and hundreds of other provisions to
disappear along with the minimum coverage requirement.
B.

Severability Clauses Are Unnecessary and There is No Presumption
Against Severability From Failing to Include Them

As a preliminary matter, Plaintiffs’ emphasis on the lack of a severability clause in
the ACA is misplaced. See ECF No. 40 at 28-29. Plaintiffs claim that “a textual
instruction in the statute as to severability carries presumptive, or even dispositive, sway
without need to resort to the full-blown, two-part inquiry.” Id. at 28. The Supreme Court
has said precisely the opposite. In Alaska Airlines, it explained that “[i]n the absence of a
severability clause, however, Congress’ silence is just that—silence—and does not raise
a presumption against severability.” Alaska Airlines, 480 U.S. at 686 (emphasis added);
see also New York, 505 U.S. at 186 (same).
Both the House and Senate drafting manuals, moreover, expressly provide that
severability clauses are “unnecessary” and need not be included in legislation. See Office
of the Legis. Counsel, U.S. Senate, Legislative Drafting Manual § 131, at 49 (1997);
Office of the Legislative Counsel, U.S. H.R., House Legislative Counsel’s Manual on
Drafting Style § 328, at 33 (1995). The failure to include an “unnecessary” clause is
immaterial, and the Supreme Court has said that “the ultimate determination of
severability will rarely turn on the presence or absence of such a clause.” U.S. v. Jackson,
390 U.S. 570, 585 n.27 (1968). Congress also placed the requirement to maintain
minimum coverage or pay a shared responsibility payment in the Internal Revenue Code,

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which does contain a severability provision. See I.R.C., § 5000A(a)-(b) (outlining the
requirement to maintain minimum essential coverage or pay a penalty) and § 7852(a)
(severability clause). For all of these reasons, the absence of a severability clause in the
ACA does not rebut the long-established principle that “[t]he presumption is in favor of
severability.” Regan, 468 U.S. at 653. Plaintiffs’ claims to the contrary are unfounded.
C.

The ACA’s Remaining Provisions Are Severable from the Minimum
Coverage Provision

Plaintiffs assert that if the minimum coverage requirement is unconstitutional, every
one of the ACA’s hundreds of additional provisions must be invalidated because
otherwise “the ACA’s design of ‘shared responsibility’” would be upset. ECF No. 40 at
35. In essence, Plaintiffs assert that invalidating the minimum coverage provision could
create a chain reaction that might eventually cause some of the ACA’s other provisions to
operate differently than Congress intended, and thus the ACA must be struck down in its
entirety. There is no merit to this argument.
1.

The Congress that passed the TCJA deliberately left the rest of
the ACA in place.

Striking down the entire ACA is improper because it would contravene
congressional intent. See NFIB, 567 U.S. at 586 (the “touchstone for any decision about
remedy is legislative intent, for a court cannot use its remedial powers to circumvent the
intent of the legislature”). In seeking to enjoin the entire ACA based on the TCJA’s
recent amendment, Plaintiffs overlook the intent of the Congress that passed that
amendment.23 There can be no doubt that the current Congress—which zeroed out the
shared responsibility payment—wanted the rest of the ACA to remain in place. That
judgment represents the will of the people as expressed through their democratically
23

Plaintiffs focus exclusively on the intent of the Congress that passed the ACA. But
that is the wrong focal point. None of Plaintiffs’ cases involved a statutory provision amended
by a subsequent Congress in a manner that purportedly makes the amended provision
unconstitutional. Under these circumstances, the intent of the Congress that amended the
provision should govern.

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elected representatives, and courts may not impose a severability remedy that directly
contradicts congressional intent. Regan, 468 U.S. at 653; NFIB, 567 U.S. at 586.
The legislative history of the TCJA conclusively demonstrates that Congress
intended to preserve every aspect of the ACA other than eliminating the tax penalty for
failing to comply with the minimum coverage requirement. For example, in the Senate
Finance Committee hearing, Senator Toomey (R-PA) emphasized that:
There are no cuts to Medicaid. There are no changes to the program. There are no
reimbursement differences. There are no disqualifications for people to participate.
None of that. We are simply saying if you cannot afford these ill designed plans,
with respect to your family anyway, you are not going to have to pay this penalty. 24
Senator Shelly Moore Capito (R-WV) remarked that: “No one is being forced off of
Medicaid or a private health insurance plan by the elimination of the individual mandate.
By eliminating the individual mandate, we are simply stopping penalizing and taxing
people who either cannot afford or decide not to buy health insurance plans.”25
Senator Orrin Hatch (R-UT) similarly asserted:
Let us be clear, repealing the tax does not take anyone’s health insurance away. No
one would lose access to coverage or subsidies that help them pay for coverage
unless they chose not to enroll in health coverage once the penalty for doing so is no
longer in effect. No one would be kicked off of Medicare. No one would lose
insurance they are currently getting from insurance carriers. Nothing—nothing—in
the modified mark impacts Obamacare policies like coverage for preexisting
conditions or restrictions against lifetime limits on coverage.26
He further emphasized that “[t]he bill does nothing to alter Title I of Obamacare,
which includes all of the insurance mandates and requirements related to preexisting
conditions and essential health benefits.” Id. at 286.
Senator Tim Scott (R-SC) also declared from the Senate floor that “[a]nyone who
doesn’t understand and appreciate that the individual mandate and its effects in our bill
take nothing at all away from anyone who needs a subsidy, anyone who wants to
24

See Continuation of the Open Executive Session to Consider an Original Bill Entitled
the Tax Cuts and Jobs Act Before the S. Comm. On Fin., Senate, 115th Congress, Nov. 15, 2017.
25
163 Cong. Rec. S7383 (daily ed. Nov. 29, 2017).
26
See supra n.22 at 106.

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continue their coverage—it does not have a single letter in there about preexisting
conditions or any actual health feature.”27 There are many more examples in the record.
Congress intentionally retained the community-rating and guaranteed-issue provisions
that prevent discrimination on the basis of preexisting conditions, maintained federal
subsidies for purchasing health insurance, and left Medicaid expansion untouched. That
is the congressional intent that governs the outcome here. See Ayotte, 546 U.S. at 330
(“Would the legislature have preferred what is left of its statute to no statute at all?”).
The answer is yes, because Congress made this unequivocally clear.
Congressional intent to keep the rest of the ACA intact is also demonstrated by the
many times that Congress considered, but ultimately rejected, attempts to repeal this
landmark legislation. Since its passage in 2010, some members of Congress have
attempted to repeal the law an estimated 70 times, yet all such efforts have been
rebuffed.28 It would be difficult to imagine a more robust record of congressional intent
to maintain the ACA as federal law. The Court should decline Plaintiffs’ invitation to
circumvent clear congressional intent in order to impose a result that Congress repeatedly
declined to enact through the legislative process. See NFIB, 567 U.S. at 586.
2.

The Congress that passed the ACA would have wanted the rest
of the ACA to stand.

For the reasons outlined above, the Court’s severability analysis should be governed
by the 2017 Congress’s stated intent to leave the rest of the ACA in place. But even if it
were proper to consider the legislative intent of the 2010 Congress that passed the
minimum coverage provision in its original (and fully constitutional) form—and to graft
that intent onto a statutory amendment passed by a different Congress—that would still
be of no assistance to Plaintiffs. For the many reasons outlined below, the Congress that
27
28

See 163 Cong. Rec. S7666 (daily ed. Dec. 1, 2017).
See C. Stephen Redhead & Janet Kinzer, Cong. Research Serv., R43289, “4002112th,
th
113 , and 114th Congresses to Repeal, Defund, or Delay the Affordable Care Act” (2017), Appx.
192-219.

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passed the ACA would not have wanted wholesale invalidation of this groundbreaking
legislation just because a later Congress reduced the shared responsibility payment to $0.
a.

The majority of the ACA’s provisions went into effect
years before the minimum coverage requirement.

For starters, there is no reason to believe that the Congress that adopted the ACA
would have wished to invalidate the majority of the ACA’s provisions which it
effectuated years before the minimum coverage requirement took effect in 2014. For
example, since January 1, 2010, the ACA has provided tax credits for small businesses to
subsidize employee health coverage. See 26 U.S.C. § 45R. That same year, Congress
prohibited insurers from imposing lifetime dollar limits on the value of coverage, from
denying children coverage based on preexisting medical conditions, and from rescinding
coverage except in the case of fraud. See 42 U.S.C. §§ 300gg-3, 300gg-11, 300gg-12. In
2011, numerous sections of the ACA implemented more efficient Medicare payment
rates, which have been used to make millions of provider payments. See, e.g., 42 U.S.C.
§ 1395w-4(e)(1)(H). Other major reforms effectuated in 2010-11 include: requiring
individual and group health plans to cover preventive services without cost sharing;
allowing children to stay on their parents’ health insurance until age 26; and awarding
funds to establish state-based Exchanges. 42 U.S.C. § 300gg-13 & 14; § 18031. By
implementing most of the ACA years before the minimum coverage requirement,
Congress made clear that it did not consider them dependent upon one another.
It is inconceivable that the Congress that passed the ACA would have wished to
nullify tax credits for small businesses, eliminate important consumer protection reforms
(including protections for children with preexisting conditions), and unwind millions of
completed Medicare payments years later just because the minimum coverage provision
was struck down. See New York, 505 U.S. at 186 (“the invalidation of one of the
[statute’s] incentives should not ordinarily cause Congress’ overall intent to be
frustrated.”) Here, as the Eleventh Circuit found, excising the minimum coverage

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provision “does not prevent the remaining provisions from being ‘fully operative as a
law.’” Florida ex rel. Atty. Gen., 648 F.3d at 1322. All of the ACA’s provisions, and
especially those implemented years earlier, are severable from that requirement.
b.

Most of the ACA has nothing to do with the individual
insurance market.

The severability of the rest of the ACA is also shown by the fact that the “lion’s
share of the Act has nothing to do with private insurance, much less the mandate that
individuals buy insurance.” Id. at 1322. In light of the ACA’s numerous stand-alone
provisions addressing a vast array of diverse topics, it is not remotely “evident” that
Congress would want the extraordinary disruption that would be caused by eliminating
Medicaid expansion for millions of Americans, wiping out billions of dollars in premium
tax credits that help low-income Americans purchase health insurance, reversing vital and
long overdue changes to Medicare payment rates, eliminating tax credits for small
businesses, and undoing numerous other wholly unrelated statutory provisions such as
canceling reasonable break times for nursing mothers and restored funding for abstinence
education. See, e.g., 42 U.S.C. § 1396a(a)(10)(A)(i)(VIII); 26 U.S.C. § 36B; 42 U.S.C.
§ 1395w-44(p); 26 U.S.C. § 45R; 29 U.S.C. § 207(r); 42 U.S.C. § 710.
The extraordinarily varied array of issues addressed by the ACA distinguishes it
from the Professional and Amateur Sports Protection Act (PASPA), which was
invalidated in the Supreme Court’s latest decision to address severability. See Murphy v.
Nat’l Collegiate Athletic Ass’n, 138 S.Ct. 1461 (2018). The Court held that PASPA’s
provision prohibiting States from authorizing sports gambling was unconstitutional. Id.
at 1478-81. It then went on to hold that the statute’s remaining, closely related
provisions—which prohibited: (1) state-run sports lotteries; (2) private sports gambling
schemes operated pursuant to state authorization; and (3) the advertising of sports
gambling—had to fall as well. Id. at 1482-84. This result flowed from PASPA’s narrow,
single-subject nature, and the Court’s conclusions, grounded in an inquiry into legislative

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intent, that: (1) legalizing sports gambling in private casinos while prohibiting state-run
lotteries would get things “exactly backwards,” Id. at 1483; (2) it would be a “weird
result” for Congress to prohibit private arrangements that operated pursuant to nowlawful state authorization, id. at 1484; and (3) it would be incongruous for federal law to
prohibit the advertising of sports gambling once States were free to authorize that
activity. Id. By contrast, a finding of total inseverability here would invalidate scores of
provisions that have nothing to do with the minimum coverage requirement.
Such a result would be radically at odds with “the overwhelming majority of cases,”
in which “the Supreme Court has opted to sever the constitutionally defective provision
from the remainder of the statute.” Florida ex rel. Atty. Gen., 648 F.3d at 1321 (citing
historical examples). Wholesale invalidation of a statute is strongly disfavored and
exceedingly rare. See, e.g., Ayotte, 546 U.S. at 328-31. This case is no exception. If the
Court concludes that the minimum coverage requirement is unconstitutional and declines
to remedy that infirmity by striking down only the unconstitutional amendment itself
(contrary to Frost), it should sever the minimum coverage provision from the rest of the
ACA. See Ayotte, 546 U.S. at 328-29 (“when confronting a constitutional flaw in a
statute,” courts “sever its problematic portions while leaving the remainder intact.”)
c.
The ACA’s community-rating and guaranteed-issue
provisions are also severable from the mandate.
The result is no different when considering the ACA’s “community-rating” and
“guaranteed-issue” provisions, which are also severable from the minimum coverage
requirement. The guaranteed-issue provision bars insurers from denying coverage to any
individual because of the medical condition or medical history of that individual and/or
his dependents. See 42 U.S.C. §§ 300gg-1, 300gg-3, 300gg-4. The community-rating
requirement prohibits insurers from charging higher premiums because of their
preexisting medical conditions. Id. at §§ 300gg(a), 300gg-4(b). These provisions ensure
that 133 million Americans with preexisting conditions have access to affordable health

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care. Aaron Dec. ¶¶ 13-16, Appx. 8-10. It is far from “evident” that the Congress that
ushered in these important consumer protections would want them invalidated simply
because a later Congress reduced the shared responsibility payment to $0.
To determine whether the Congress that passed the ACA would have wanted the
community-rating and guaranteed-issue provisions to remain in place even without a
minimum coverage requirement, it is essential to understand how the health insurance
market operated at the time that the ACA passed. A decade ago, as a result of the
medical underwriting practices of private insurers, between 9 and 12.6 million uninsured
Americans “voluntarily sought health coverage in the individual market but were denied
coverage, charged a higher premium, or offered only limited coverage that excludes a
preexisting condition.” Florida ex rel. Atty. Gen., 648 F.3d at 1245; see also NFIB, 567
U.S. at 596-97 (Ginsburg, J. dissenting) (Before the ACA, “insurers routinely refused to
insure” individuals with preexisting medical conditions “or offered them only limited
coverage that did not include the preexisting illness”).
Congress was concerned about these discriminatory industry practices, which
prevented millions with preexisting conditions from obtaining affordable health insurance.
Corlette Dec. ¶¶ 8-15, Appx. 087-090. A House Report discussing a 2009 health care bill
that pre-dated final passage of the ACA stated that “health insurers—particularly in the
individual market—have adopted discriminatory, but not illegal, practices to cherry-pick
healthy people and to weed out those who are not as healthy.” H.R. Rep. No. 111-299, Pt.
3, at 92 (2009).

(1) Congress independently sought to end
discriminatory underwriting practices and to
lower administrative costs.
One of Congress’s main objectives in passing the ACA was to end these
discriminatory insurance industry practices which denied affordable health insurance to
millions of unhealthy individuals. See H.R. Rep. No. 111-443, Pt 2, at 975-76 (2010)

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(“To protect families struggling with health care costs and inadequate coverage, the bill
ensures that insurance companies can no longer compete based on risk selection.”) The
legislative history of the ACA shows that this was a paramount concern of Congress, part
and parcel of its ultimate goal of “increas[ing] the number and share of Americans who
are insured.” 42 U.S.C. § 18091(2)(C).
For example, Senator Dick Durbin (D-Illinois) stated during the Senate debate:
“What we provide in this bill is protection against the ratings which discriminate against
people because they are elderly or because they are women. We put limits to the rating
differences that will be allowed in health insurance policies.”29 Senator Tim Johnson (DSouth Dakota) explained that: “Under the Senate reform bill, all health insurers will be
prohibited from using preexisting conditions to deny health care and it will be illegal for
them to drop coverage when illness strikes.”30 Senator Russ Feingold (D-Wisconsin)
averred that: “Because of this bill, lifetime and annual limits on coverage will be
prohibited. Premiums cannot increase due to medical needs or illness. Insurers cannot
charge women more than men for the same insurance policy. Restricting or denying
coverage based on preexisting conditions is prohibited for all Americans, beginning with
children effective 6 months after final passage of this bill.”31 This is just a small sample
of the legislative history, which demonstrates that Congress passed the guaranteed-issue
and community-rating provisions to ensure that everyone has access to affordable health
insurance regardless of their health status.
In addition to protecting consumers with preexisting medical conditions, Congress
also enacted the guaranteed-issue and community-rating provisions to reduce
administrative costs and lower premiums. Florida ex rel. Atty. Gen., 648 F.3d at 1323
(citing 42 U.S.C § 18091(a)(2)(J)). Congress found that insurers incurred $90 billion in
29
30
31

155 Cong. Rec. S13020 (daily ed. Dec. 11, 2009).
155 Cong. Rec. S13692 (daily ed. Dec. 21, 2009).
155 Cong. Rec. S13851 (daily ed. Dec. 23, 2009).

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annual underwriting costs, representing 26%-30% of consumers’ premium costs. Id. The
community-rating and guaranteed-issue provisions were intended to “reduce the number
of the uninsured and underwriting costs” to the benefit of consumers. Id; see also §
18091(2)(J) (the ACA’s provisions, collectively, are intended to create “effective health
insurance markets that do not require underwriting and eliminate its associated
administrative costs.”). These provisions will further these congressional purposes even
in the absence of a shared responsibility payment. Congress would not wish to revert
back to a situation where millions of Americans with preexisting conditions are denied
access to affordable healthcare.

(2) It is not “evident” that Congress would want to
discard these important consumer protections in
the absence of the minimum coverage provision.
Plaintiffs assert that the Congress that enacted the ACA would not have wanted the
community-rating and guaranteed-issue provisions to stand without a minimum coverage
provision because: (1) the ACA states that all three provisions are “essential” to creating
effective health insurance markets; and (2) adverse selection would cause premium rates
would spike and a death spiral in the market may occur, which would be the opposite of
Congress’s goals in passing the ACA. ECF No. 40 at 30-35. But these arguments are
overstated and ultimately insufficient to meet Plaintiffs’ heavy burden of proving that it is
“evident” that Congress would prefer that outcome. NFIB, 567 U.S. at 587.
Plaintiffs first assert that the community-rating and guaranteed-issue provisions are
not severable “because of the specific findings that Congress inserted into the statutory
text.” ECF No. 40 at 30. Plaintiffs point to language stating that “[t]he requirement [to
maintain minimum coverage] is essential to creating effective health insurance markets in
which improved health insurance products that are guaranteed issue and do not exclude
coverage of preexisting conditions can be sold.” Id. (citing 42 U.S.C. § 18091(2)(I)).

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Based on this language, Plaintiffs claim that these provisions are “so interwoven” with
the minimum coverage requirement that they must be invalidated too. Id.
There are a number of flaws with this argument. For starters, these congressional
findings were designed to show that the requirement to maintain minimum essential
coverage “is commercial and economic in nature, and substantially affects interstate
commerce . . .” 42 U.S.C. § 18091(1) (emphasis added). In other words, these findings
were drafted to demonstrate that Congress had constitutional authority under the
Commerce Clause to require that most Americans purchase health insurance. Id. They
do not reflect Congress’s judgment as to whether the community-rating and guaranteedissue provisions should cease to exist if the minimum coverage requirement were
invalidated. And in light of NFIB—which held that Congress lacked authority under the
Commerce Clause to require individuals to purchase insurance—these congressional
findings are no longer relevant to the constitutional analysis for which they were crafted.
To be sure, Congress intended that the requirement to purchase health insurance,
along with the community-rating and guaranteed-issue provisions, would work together
harmoniously to increase the number of insured Americans and lower premiums. And it
is true that without the minimum coverage provision, the community-rating and
guaranteed-issue provisions will be less effective in achieving those goals. But contrary
to Plaintiffs’ assertions, severability does not turn on whether these remaining provisions
will “function” in precisely the same “manner” that Congress intended.32 ECF No. 40 at

Plaintiffs repeatedly pluck the word “manner” from the Alaska Airlines decision and
suggest that any time remaining statutory provisions do not function in the “manner” that
Congress originally intended, they are not severable. See ECF No. 40 at 27. That is incorrect for
two reasons. First, no subsequent Supreme Court decision has used the word “manner” when
discussing severability principles, and it is doubtful that this one-time usage was intended to
change the well-established legal standard. Second, at the end of the paragraph in Alaska
Airlines which uses the word “manner,” the Court affirmed that “the unconstitutional provision
must be severed unless the statute created in its absence is legislation that Congress would not
have enacted.” Alaska Airlines, 480 U.S. at 685 (emphasis added). That is the traditional test
that the Supreme Court has consistently followed, and which this Court should also follow.
32

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35. That cannot be the correct legal standard; after all, presumably Congress never
adopts any provision unless it believes it will help achieve its legislative objectives in a
more efficient or effective manner. Framed properly, the question before the Court is
whether Congress would “have preferred what is left of its statute to no statute at all[.]”
Ayotte, 546 U.S. at 330. And as long as the community-rating and guaranteed-issue
provisions are: (1) constitutionally valid; (2) capable of “functioning independently”; and
(3) consistent with Congress’s basic objectives in enacting the statute, the Court severs
the unconstitutional provision and leaves the rest intact. Booker, 543 U.S. at 258-59.
The Booker factors are readily met. First, Plaintiffs do not assert that the
community-rating and guaranteed-issue provisions are unconstitutional. Second, they
“function independently” of the minimum coverage requirement because there is no
functional dependency—or even any textual cross-reference—between these provisions.
When considering this issue, the Eleventh Circuit explained:
It is also telling that none of the insurance reforms, including even the guaranteed
issue and coverage of preexisting conditions, contain any cross-reference to the
individual mandate or make their implementation dependent on the mandate’s
continued existence.
Florida ex rel. Atty. Gen., 648 F.3d at 1324 (citing Booker, 543 U.S. at 260.)33
Booker describes the necessary functional and textual intertwining of statutory
provisions that must be present in order to strike down more than just the unconstitutional
provision. In that case, the Court held that 18 U.S.C. § 3553(b)(1), which made the
Federal Sentencing Guidelines mandatory, violated the Sixth Amendment and therefore
had to be excised from the Sentencing Reform Act of 1984. Booker, 543 U.S. at 245, 259.
The Court left the remainder of the law intact, with one exception. Id. at 259. That
exception was a statutory provision that “depends upon the Guidelines’ mandatory nature”
33

The Eleventh Circuit also noted that the prohibition on preexisting condition exclusions
with respect to enrollees under 19 was implemented in 2010, four years before the minimum
coverage requirement took effect in 2014. Id. at 1324. That is yet another reason why these
provisions are not inherently dependent on one another.

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and “contains critical cross-references to the (now-excised) § 3553(b)(1) and
consequently must be severed and excised for similar reasons.” Id. at 260; see also
Murphy, 138 S. Ct. at 1482-84 (explaining the functional interdependence of PASPA’s
provisions concerning sports gambling). Aside from striking that single additional
provision that was functionally and textually dependent on the unconstitutional provision
that made the guidelines mandatory, the Court upheld the remainder of the statute. Id.
Unlike the single additional provision invalidated in Booker, nothing in the text of
the ACA makes the community-rating and guaranteed-issue provisions functionally
dependent on the existence of the minimum coverage provision. Nor do these provisions
contain any “critical [textual] cross-references” to the minimum coverage provision.
Florida ex rel. Atty. Gen., 648 F.3d at 1324. The community-rating and guaranteed-issue
provisions “can fully operate as a law” even without the minimum coverage requirement.
Id.; see also Booker, 543 U.S. at 259 (“The remainder of the Act functions
independently.”) The second Booker factor is also met here.
Under the final Booker factor, the community-rating and guaranteed-issue
provisions must stand if they are “consistent with Congress’s basic objectives in enacting
the statute.” Booker, 543 U.S. at 259. As discussed previously, these requirements are
fully consistent with Congress’s desire to ensure that consumers with preexisting medical
conditions have access to affordable health insurance. See, e.g., H.R. Rep. No. 443, 111th
Cong. 2d Sess. Pt 2, at 975-76 (2010) (“to protect families struggling with health care
costs and inadequate coverage, the bill ensures that insurance companies can no longer
compete based on risk selection.”) All of the Booker factors are readily met.

(3) The adverse selection concern from 2010 is no
longer a concern today.
Despite the overwhelming evidence demonstrating that severing the
unconstitutional provision would be “consistent with Congress’s basic objectives,”
Plaintiffs raise the “adverse selection problem.” ECF No. 40 at 31. It is true that

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Congress expressed concern that without the minimum coverage requirement, “many
individuals would wait to purchase health insurance until they needed care and thus
Congress wished to “minimize this adverse selection and broaden the health insurance
risk pool to include healthy individuals, which will lower health insurance premiums.”
42 U.S.C. § 18091(2)(I). Because of this, in NFIB the federal government conceded that
the community-rating and guaranteed-issue provisions are not severable from the
minimum coverage requirement.
Any concern about adverse selection is not well founded in 2018. First, as
Congress stated at the time, the three-prong approach that it adopted was intended to
assist in “creating effective health insurance markets. . .” 42 U.S.C. § 18091(2)(I)
(emphasis added). Congress was attempting to create brand new insurance markets from
scratch, a major undertaking that involved tremendous uncertainty. But those markets
were successfully created years ago, and even Plaintiffs do not assert that the minimum
coverage provision is essential to maintaining those already-created health insurance
markets. In fact, Plaintiffs themselves acknowledge that the “death spiral” scenario is
far-fetched when they cite a 2017 CBO report about the effect of eliminating the shared
responsibility payment. ECF No. 40 at 35.34 CBO found that repealing the minimum
coverage requirement would cause average premiums in the nongroup market to rise by
about 10%, but that “nongroup insurance markets would continue to be stable in almost
all areas of the country throughout the coming decade.”35 CBO 2017 Report at 1.
CBO recently released a new report confirming that even with the elimination of the
tax penalty for the individual mandate: (1) the individual market will remain stable in
most of the country over the next decade (though that stability may be fragile in some

34

See Cong. Budget Off., Repealing the Individual Health Insurance Mandate: An
Updated Estimate 2, Appx. 233.
35
Although the CBO was assessing repeal of the individual mandate, it confirmed that
“the results would be very similar” if the tax penalty was simply eliminated, but not repealed. Id.

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places); (2) after the first year, premium increases will average only about 7% between
2019 and 2028; and (3) between 12 and 13 million Americans will continue to enroll in
the individual insurance market.36 Whatever the theoretical concern in 2010, Plaintiffs
have offered no evidence suggesting that zeroing out the shared responsibility payment in
2019 will cause the individual insurance market to completely collapse because of
adverse selection.
Second, the ACA itself contains many provisions that mitigate the risk of adverse
selection. For example, the ACA permits insurance companies to “restrict enrollment in
coverage . . . to open or special enrollment periods.” 42 U.S.C. § 300gg-1(b)(1).
Uninsured individuals, therefore, “cannot literally purchase insurance on the way to the
hospital.” Florida ex rel. Atty. Gen., 648 F.3d at 1324 n.139. The ACA allows up to a
90-day waiting period for group coverage eligibility, and imposes no limit on the waiting
period that insurers can impose in the individual market. Id. Uninsured individuals who
forgo health insurance because they are currently healthy run a serious risk of becoming
ill and requiring medical treatment prior to the next enrollment period.
Third, millions of healthy individuals will continue to purchase insurance because
the ACA provides billions of dollars in premium tax credits to subsidize those purchases.
See 26 U.S.C. § 36B; CBO August 2017 report at 13 (estimating that the federal
government would spend $247 billion on the ACA’s subsidies between 2017-2026).37 In
fact, nearly 12 million Americans purchased health insurance through the ACA’s
exchanges for 2018, and the vast majority of them (83%) did so with the help of premium
tax credits.38 And the CBO expects that number to increase over the coming decade even

36

See Cong. Budget Off., Federal Subsidies for Health Insurance Coverage for People
Under Age 65: 2018 to 2028, 2-3, 5 (2018). Appx. 275-276, 278.
37
Cong. Budget Off., The Effects of Terminating Payments for Cost-Sharing Reductions
13 (2017). Appx. 316.
38
See Ctrs. for Medicare & Medicaid Servs., Health Insurance Exchanges 2018 Open
Enrollment Period Final Report (2018). Appx. 319-322.

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without a shared responsibility payment.39 Millions of healthy Americans will continue
to purchase subsidized health insurance, which undercuts the concern that only the sick
will buy insurance without a tax penalty for not doing so. It is also worth noting that the
shared responsibility payment by itself was a weak incentive to purchase health insurance,
even before the penalty was reduced to zero.40 As the Eleventh Circuit explained, the
scope and effect of the shared responsibility payment was seriously constrained by “its
three exemptions, its five exceptions to the penalty, and its stripping the IRS of tax liens,
interests, or penalties and leaving virtually no enforcement mechanism.” Florida ex rel.
Atty. Gen., 648 F.3d at 1326.
For all of these reasons, the decade-old and entirely theoretical risk of excessive
adverse selection causing the individual market to collapse cannot rebut the strong
presumption of severability today. As the Eleventh Circuit correctly concluded,
eliminating the minimum coverage provision may make the community-rating and
guaranteed-issue provisions “less desirable,” but “it does not ineluctably follow that
Congress would find the two reforms so undesirable without the mandate as to prefer not
enacting them at all.” Florida ex rel. Atty. Gen., 648 F.3d at 1327. In light of the “heavy
burden needed to rebut the presumption of severability” and the “duty to refrain from
invalidating more of a statute than is necessary,” that Court “sever[ed] the individual
mandate from the remaining sections of the Act.” Id. at 1323, 1327-28. If this Court
reaches the severability question, it should do the same.
For all of these reasons, even if the minimum coverage requirement were found to
be unconstitutional, and even if the Court declined to follow Frost and enjoin only the

39

See Cong. Budget Off., Federal Subsidies for Health Insurance Coverage for People
Under Age 65: 2018 to 2028 5 (2018). Appx. 278.
40
See, e.g., Examining the Effectiveness of the Individual Mandate under the Affordable
Care Act: Hearing before the H. Comm. on Ways and Means Subcommittee on Oversight, 115th
Cong. (2017) (Statement of Thomas Miller, Resident Fellow, American Enterprise Institute).
Appx. 324-335.

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recent amendment, the rest of the ACA is fully severable and should be left in
place.
IV. PLAINTIFFS HAVE NOT MET THEIR BURDEN OF DEMONSTRATING
IRREPARABLE INJURY
For the reasons outlined above, Plaintiffs are unlikely to prevail on the merits of
their legal claims. That is reason enough to deny the preliminary injunction. See Nichols,
532 F.3d at 372. But Plaintiffs also cannot demonstrate that they will suffer irreparable
injury in the absence of injunctive relief. The individual Plaintiffs will suffer no harm
because it is perfectly lawful for them to pay a tax of $0 instead of obtaining ACAcompliant insurance. And the shared responsibility payment that Congress zeroed out
applies to individuals, not to States. Plaintiff States, therefore, cannot possibly be harmed
by the reduction of a tax that never applied to them in the first place. The harms they
complain of flow from other ACA provisions whose constitutionality is not being
challenged here. Plaintiff States also mischaracterize the nature and extent of their costs,
benefits, and obligations under the ACA. None of the Plaintiffs have come close to
demonstrating the type of irreparable injury that would support a preliminary injunction.
A.

The Individual Plaintiffs Will Not Suffer Any Injury From a $0 Tax

The individual Plaintiffs assert that they will suffer harm because they “value
compliance with [their] legal obligations” and will “continue to maintain minimum
essential health insurance coverage because [they] are obligated to comply with the
Affordable Care Act’s individual mandate.” ECF No. 41 at 4, 8. But the notion that it is
unlawful to pay a tax instead of obtaining ACA-compliant health insurance is incorrect as
a matter of law. As Chief Justice Roberts explained in NFIB, “imposition of a tax
nonetheless leaves an individual with a lawful choice to do or not do a certain act, so long
as he is willing to pay a tax levied on that choice.” NFIB, 567 U.S. at 574 (emphasis
added); see also id. at n.11 (“Those subject to the individual mandate may lawfully forgo
health insurance and pay higher taxes, or buy health insurance and pay lower taxes.”).

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Beginning next year, the individual Plaintiffs can fully comply with their legal
obligations by declining to purchase health insurance and paying a tax penalty of $0.
NFIB, 567 U.S. at 574. They will suffer no harm from that lawful choice, and therefore
they will not suffer any injury—and will actually benefit—from the zeroing out of shared
responsibility payment.41 Where a party seeks to enjoin government action pursuant to a
regulatory scheme, courts should not intervene unless the need for equitable relief is real
and immediate. Machete Productions, L.L.C. v. Page, 809 F.3d 281, 288 (5th Cir. 2015).
The individual Plaintiffs have thus failed to produce clear and convincing evidence that
they will suffer irreparable harm if the requested injunction is denied.
B.

None of the Harms Identified by the Plaintiff States Flow from
Zeroing Out the Shared Responsibility Payment

The Plaintiff States contend that they are harmed because they are required to spend
state funds to comply with the ACA’s employer mandate, to implement parts of the
Medicaid expansion, and because the ACA prevents them from enforcing their own laws
and policies, among other alleged harms.42 See ECF No. 40 at 43-50. But the States’
claim of irreparable injury fails at the outset because none of their purported injuries are
caused by the requirement that most individuals maintain insurance coverage. The
shared responsibility payment applies to individuals, not to States. Plaintiff States,
therefore, are not harmed by the reduction of a tax that never applied to them in the first
place. And harm allegedly caused by other, non-challenged provisions has no legal

41

To the extent that Plaintiffs contend that the ACA caused rising health premiums, they
lack standing to assert such generalized grievances. See Hotze v. Burwell, 784 F.3d 984, 995
(5th Cir. 2015) (holding that a generic claim concerning health insurance premiums purportedly
resulting from the ACA’s minimum coverage requirement is insufficient to constitute cognizable
injury for standing purposes, nor is it “fairly traceable” to that provision.)
42
Plaintiffs also claim that the ACA harms the States as sovereigns because it “prevents
them from applying their own laws and policies governing their own healthcare markets.” ECF
No. 40 at 44. But as long as Congress acts within its constitutional authority, it may preempt
state law. “It is axiomatic that, under the Supremacy Clause, state laws that interfere with, or are
contrary to the laws of [C]ongress, made in pursuance of the [C]onstitution are invalid.” Franks
Inv. Co. v. Union Pac. R.R. Co., 534 F.3d 443, 445 (5th Cir. 2008).

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relevance. Plaintiffs may not bootstrap alleged harm into the preliminary injunction
analysis that is unrelated to the actual legal claims before the Court.
Recognizing this major flaw in their argument, Plaintiffs insert a footnote claiming
that “[h]arms caused by provisions inseverable from an unconstitutional provision are
both directly relevant to the proper scope of the injunction under traditional equitable
principles, and support a party’s standing to bring the lawsuit.” ECF No. 40 at 43 (citing
Alaska Airlines, 480 U.S. at 683). But Alaska Airlines says nothing of the sort. Indeed,
the words “harm,” “standing,” and “injunction” do not appear anywhere in the decision,
let alone any actual discussion about harms caused by provisions that are purportedly not
severable. Alaska Airlines, 480 U.S. at 678-697. And in Alaska Airlines, the Supreme
Court unanimously held that a legislative veto provision was severable from the rest of
the federal statute. Id. at 697. The outcome in that case is precisely the same outcome
that should occur here if the Court reaches the severability question.
Moreover, Plaintiffs must demonstrate by specific facts that there is a credible
threat of immediate harm. Fed. R. Civ. P. 65(b). Here, even if Plaintiff States’ alleged
harm flowed from a $0 shared responsibility payment (which even they do not claim), the
tax is not zeroed out until 2019, and will not cease generating revenue until 2020 or later.
As such, the imminent harm needed to justify the requested relief is lacking. Plaintiff
States have not shown that they will suffer any injury—let alone irreparable and
imminent injury—from the reduction of a tax that never applied to them in the first place.
C.

Plaintiffs Mischaracterize Their Costs and Obligations Under the
ACA to Exaggerate Their Alleged Harm

Even if the Court’s authority to issue a preliminary injunction turned on the broad
policy debate over whether the ACA has been good or bad for the States (and it does not),
Plaintiffs mischaracterize the nature and extent of their costs, benefits, and obligations
under the ACA to exaggerate their purported harm. While repeatedly claiming that they
are harmed because the ACA “forces” them to spend money, Plaintiffs fail to disclose the

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many voluntary steps that they have taken to expand access to coverage for their residents
by taking advantage of the federal dollars available under the ACA. For example, seven
Plaintiff States elected to expand access to Medicaid pursuant to the ACA;43 ten chose to
expand access to CHIP for children of state employees pursuant to Section 10203(b)(2)(D)
of the ACA and Dear State Health Official Letter No. 11-002 (Apr. 4, 2011);44 four chose,
pursuant to 42 C.F.R. § 435.150(c), to extend the new ACA eligibility group of former
foster youth to cover youth from other states;45 and three decided to take advantage of
ACA Section 2202 to further extend presumptive eligibility for Medicaid and CHIP,
among other examples.46
In addition, Texas decided to use Community First Choice (CFC), a new Medicaid
option made possible by Section 2401 of the ACA, to expand access to home and
community-based care.47 As the Texas Human Services Commission explained to the
state legislature in a report evaluating the CFC program, “[c]alculating the actual cost
effectiveness […] requires not only information about costs, but also information about
outcomes.” It went on to explain that the program was a cost-effective choice because it
allows Texas to draw down additional federal dollars, and because the up-front payments
may obviate the need for the state to spend money on more expensive home and
community-based Medicaid waiver or institutional care.48 Plaintiff States’ investments in
healthcare on behalf of their residents belie their current litigation position that the

43
44

Eyles Dec. ¶ 6, ECF No. 15-1 at 95.
Kaiser Family Found., Medicaid and CHIP Eligibility, March 2018 Enrollment,
Renewal, and Cost Sharing Policies as of January 2018: Findings from a 50-State Survey 2-9
(2018). Appx. 338-345.
45
Id. at 346.
46
Id. at 347.
47
See Tex. Health and Hum. Servs., Community First Choice. Appx. 349-355.
48
Tex. Health and Hum. Serv.s Comm’n, Report on the Cost-Effectiveness of
Community First Choice in Star+Plus 2 (2017). Appx. 360. The Texas Commission also noted
that some of the CFC outcomes were not as easily captured on a balance sheet, “such as
increased independence, integration into the greater community, employment, and improved
health and wellness.” Id. at 364.

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ACA’s supposedly non-severable positions “will only add” to their alleged harm. ECF
No. 40 at 43. Nor can any state resources devoted to implementing these voluntary
choices be fairly characterized as “harm.”49
Plaintiffs’ complaints about the ACA’s costs also fail to acknowledge the value of
ACA covered services in preventing future medical costs, and improperly includes
various sunk costs without any evidence that these costs would otherwise be redressed by
an injunction. Plaintiffs claim that they have been harmed by ACA requirements to cover
preventive health services, such as comprehensive tobacco cessation services for women.
Muth Dec. ¶ 4, ECF No. 41 at 027-028. Yet the States never account for the long-term
benefits of preventive health care, including improvements to children’s learning, adults’
productivity, seniors’ quality of life, and overall improved financial, physical and mental
wellbeing. Aaron Dec. ¶¶ 7, 9, Appx 004-006. And to the extent that the States
complain about the expenditure of resources relating to initial ACA implementation,50
there is no evidence that these costs are ongoing or will be redressed by a forwardlooking injunction. Aaron Dec. ¶¶ 46-165, Appx. 025-060.51
In sum, Plaintiffs will not be injured in any way when the ACA’s shared
responsibility payment is reduced to $0 in 2019. No preliminary injunction should issue.
V.

A PRELIMINARY INJUNCTION IS AGAINST THE PUBLIC INTEREST
As a final matter, the last two preliminary injunction factors—whether the

threatened injury to Plaintiffs outweighs the threatened harm to Defendants from issuing
the injunction and whether granting the injunction is against the public interest—strongly

49

Plaintiffs also state that they must offer their full-time employees and their dependents
minimum essential coverage or a tax penalty. ECF No. 40 at 43. But they fail to explain that
self-insured plans, such as Texas’ Health Select, may exempt themselves from the ACA’s
minimum coverage requirement. 42 U.S.C. §300gg-21(a)(2); Duran Dec. ¶ 5, ECF No. 41, 012.
50
See, e.g., Muth Dec. ¶ 7, ECF No. 41 at 029.
51
Plaintiffs improperly include other ACA-related expenses that sun-set and would not
be affected by prospective relief. Duran Dec. ¶ 14 (PCOR fees which sunset in FY2019), and
¶ 15 (Transitional Reinsurance Program which ended in FY 2017). ECF No. 41 at 015.

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tip the scales against issuing any injunction. See Canal Auth. of State of Fla., 489 F.2d at
572. The alleged injuries to Plaintiffs are far outweighed by the devastating harm to the
Defendant States and their citizens that enjoining the ACA would cause. Damaging this
country’s healthcare system, completely upending a sector that constitutes almost 1/5 of
the national economy, and depriving tens of millions of Americans of health insurance is
not in the public interest.
A.

The Alleged Harm to Plaintiffs is Far Outweighed by the
Devastating Harm to Defendant States and Their Citizens

There can be little doubt that that the alleged harm to Plaintiffs is far outweighed by
the devastating harm to Defendants. Reducing the shared responsibility payment to $0
actually benefits the individual Plaintiffs, and does not affect the Plaintiff States. In
contrast, Intervenor-Defendants stand to lose over half a trillion dollars in federal funds
to provide healthcare for their citizens; approximately six million newly enrolled
beneficiaries residing in their States would be kicked off of Medicaid; their state-run
exchanges would be wiped out; and millions of the Defendants’ residents would lose
access to billions of dollars in tax credits for purchasing health insurance and protections
from being discriminated against on the basis of preexisting health conditions. See supra
at 3-12. By any objective measure—and even accepting Plaintiffs’ alleged injuries at
face value—the harm that would occur from enjoining the ACA far outstrips the
purported injury to Plaintiffs.
The Supreme Court recently reiterated that the purpose of interim injunctive relief is
“not to conclusively determine the rights of the parties,” but instead to “balance the
equities as litigation moves forward.” Trump v. Int’l Refugee Assistance Project, 137 S.
Ct. 2080, 2087 (2017). Here, the equities weigh heavily in favor of Defendants and
counsel against wholesale invalidation of the ACA—especially on a preliminary basis.
Plaintiffs have not shown—and cannot show—that their alleged injury outweighs the
devastating harm that an injunction would cause. Karaha Bodes Co., 335 F.3d at 363.

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B.

Page 61 of 67 PageID 1052

Issuing a Preliminary Injunction is Also Against the Public Interest
Because It Would Upend the Status Quo

Even setting aside the fact that the equities tip strongly against issuing an
injunction, entering such interim relief is also against the public interest because it would
upend the status quo. The underlying purpose of a preliminary injunction “is merely to
preserve the status quo until the merits of a case can be adjudicated.” Morgan v.
Fletcher, 518 F.2d 236, 239 (5th Cir. 1975). Here, Plaintiffs are not seeking to preserve
the status quo; they are seeking to completely disrupt it without any analysis or even
discussion as to the immediate, nationwide consequences. Plaintiffs have not come close
to showing that this case is one of the “rare instances [where] the issuance of
a mandatory preliminary injunction [is] proper.” Tate, 634 F.2d at 870 (emphasis added).
The relief that Plaintiffs seek would unravel nearly a decade of building healthcare
systems around the ACA’s landmark reforms that strengthened consumer protections,
made insurance markets more accessible and affordable to millions of Americans,
expanded and improved Medicaid, modified and improved Medicare payments and
benefits, and enhanced prevention and public health programs, among the many other
ACA reforms from which all States have benefitted. The reliance interests that have
formed over the past eight years that the ACA has been in existence are enormous.
Corlette Dec. ¶¶ 52-60, Appx. 100-104; Eyles Dec. ¶¶ 4-12, ECF No. 15-1 at 94-99.
Defendant States would experience serious harm and increased costs from the
dismantling of their state administrative structures, created to work in conjunction with
the ACA. Zucker Dec. ¶ 1, Appx. 395-397; Wilson Dec. ¶ 3, Appx. 392-394; Johnson
Dec. ¶¶ 4, 8, Appx. 115-116; Lee Dec. ¶ 2, Appx. 130; Kent ¶ 2, Appx. 119; Kofman ¶ 1,
Appx. 122-123; DeBenedetti Dec. ¶ 4, Appx. 106-107; Allen Dec. ¶¶ 2-9, Appx. 410-415;
Bohn ¶¶ 4-5, 7-8, 10, Appx. 427-429. New York, for example, would need to rebuild its
electronic eligibility systems based on new criteria, impacting millions of its residents
who would need to be provided notice and given due process through an appeal; at an

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estimated cost of nearly $900 million. Zucker Dec. ¶ 1, Appx. 395-397; see also
Sherman Dec. ¶ 3; Appx. 417-418. It is against the public interest to provide relief that is
typically intended to freeze the status quo in order to impose chaos and havoc on the
actual status quo. The Court should not impose the “extraordinary and drastic remedy”
of a preliminary injunction under these circumstances. White, 862 F.2d at 1211.
C.

Any Injunction Issued by the Court Should Only Apply to the
Individual Plaintiffs

If the Court is inclined to issue a preliminary injunction, it should limit that
injunction to any unconstitutional application of the ACA to the individual Plaintiffs
themselves. “A district court abuses its discretion if it issues an injunction that ‘is
not narrowly tailored to remedy the specific action which gives rise to the order as
determined by the substantive law at issue.’” ODonnell v. Harris Cty., Texas, 882 F.3d
528, 537 (5th Cir. 2018) (emphasis added). If a $0 tax penalty makes the minimum
coverage requirement unconstitutional, the Court should enjoin that requirement as it
applies to the individual Plaintiffs but go no further. A sweeping, nationwide injunction
is not warranted when precisely two individuals subjected to that provision have sued.
Finally, if the Court wishes to issue a nationwide injunction that would enjoin the
entire ACA, it should require Plaintiffs to provide a security that is sufficient to “pay the
costs and damages sustained by any part found to have been wrongfully enjoined or
restrained.” Fed. R. Civ. P. 65(c). As discussed previously, the Defendant States would
collectively lose $608.5 billion dollars in ACA funds to provide healthcare to their
residents. See Aaron Dec. ¶¶ 53, 60, 67, 74, 81, 88, 95, 102, 109, 116, 123, 130, 137,
144, 151, 158, 165, Appx. 028-060. The Court should require Plaintiffs to post a bond in
that amount so that Defendants can be made whole should the injunction be reversed.
CONCLUSION
Plaintiffs’ application for a preliminary injunction should be denied.

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Dated: June 7, 2018

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Respectfully submitted,
Xavier Becerra
Attorney General of California
Julie Weng-Gutierrez
Senior Assistant Attorney General
Kathleen Boergers
Supervising Deputy Attorney General
/s/ Neli N. Palma
Neli N. Palma
Nimrod P. Elias
Deputy Attorneys General
California State Bar No. 203374
California State Bar No. 251634
1300 I Street, Suite 125
P.O. Box 944255
Sacramento, CA 94244-2550
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorneys for Intervenors-Defendants
GEORGE JEPSEN
Attorney General of Connecticut
JOSEPH RUBIN
Associate Attorney General
Attorneys for Intervenor-Defendant the State of
Connecticut
MATTHEW P. DENN
Attorney General of Delaware
ILONA KIRSHON
Deputy State Solicitor
DAVID J. LYONS
Deputy Attorney General
Attorneys for Intervenor-Defendant the
State of Delaware
RUSSELL A. SUZUKI
Attorney General of Hawaii
HEIDI M. RIAN
Deputy Attorney General
ROBERT T. NAKATSUJI
Deputy Solicitor General
Attorneys for Intervenor-Defendant the
State of Hawaii

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LISA MADIGAN
Attorney General of Illinois
David F. Buysse
Deputy Chief, Public Interest Division
Anna P. Crane
Public Interest Counsel
Matthew V. Chimienti
Assistant Attorney General, Special Litigation
Bureau
Attorneys for Intervenor-Defendant the
State of Illinois
ANDY BESHEAR
Attorney General of Kentucky
LA TASHA BUCKNER
Executive Director, Office of Civil and
Environmental Law
S. TRAVIS MAYO
TAYLOR PAYNE
Assistant Attorneys General
Attorneys for Intervenor-Defendant
the Commonwealth of Kentucky
MAURA HEALEY
Attorney General of Massachusetts
STEPHEN P. VOGEL
Assistant Attorney General
Attorneys for Intervenor-Defendant the
Commonwealth of Massachusetts
OFFICE OF THE ATTORNEY GENERAL
State of Minnesota
SCOTT IKEDA
Assistant Attorney General
Attorneys for Intervenor-Defendant the State of
Minnesota by and through its Department of
Commerce
GURBIR S. GREWAL
Attorney General of New Jersey
JEREMY M. FEIGENBAUM
Assistant Attorney General
ANGELA JUNEAU BEZER
Deputy Attorney General
Attorneys for Intervenor-Defendant the
State of New Jersey

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BARBARA D. UNDERWOOD
Acting Attorney General of New York
STEVEN C. WU
Deputy Solicitor General
LISA LANDAU
Bureau Chief, Health Care Bureau
ELIZABETH CHESLER
Assistant Attorney General, Health Care Bureau
Attorneys for Intervenor-Defendant the
State of New York
JOSHUA H. STEIN
Attorney General of North Carolina
SRIPRIYA NARASIMHAN
Deputy General Counsel
Attorneys for Intervenor-Defendant the
State of North Carolina
ELLEN F. ROSENBLUM
Attorney General of Oregon
HENRY KANTOR
Special Counsel to the Attorney General
SCOTT KAPLAN
Assistant Attorney General
Attorneys for Intervenor-Defendant the
State of Oregon
PETER KILMARTIN
Attorney General of Rhode Island
MICHAEL W. FIELD
Assistant Attorney General
MARIA R. LENZ
Special Assistant Attorney General
Attorneys for Intervenor-Defendant the
State of Rhode Island
THOMAS J. DONOVAN, JR.
Attorney General of Vermont
BENJAMIN D. BATTLES
Solicitor General
Attorneys for Intervenor-Defendant the
State of Vermont
MARK R. HERRING
Attorney General of Virginia
TOBY J. HEYTENS
Solicitor General
MATTHEW R. MCGUIRE
Deputy Solicitor General
Attorneys for Intervenor-Defendant the
Commonwealth of Virginia

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ROBERT W. FERGUSON
Attorney General of Washington
JEFFREY G. RUPERT
Chief, Complex Litigation Division
JEFFREY T. SPRUNG
Assistant Attorney General
Attorneys for Intervenor-Defendant the
State of Washington
KARL A. RACINE
Attorney General for the District of Columbia
ROBYN R. BENDER
Deputy Attorney General
VALERIE M. NANNERY
Assistant Attorney General
Attorneys for Intervenor-Defendant the
District of Columbia

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Certificate of Service

On

June 7, 2018

I electronically submitted the foregoing

document with the clerk of court for the U.S. District Court, Northern District
of Texas, using the electronic case filing system of the court. I hereby certify
that I have served all counsel and/or pro se parties of record electronically or
by another manner authorized by Federal Rule of Civil Procedure 5 (b)(2).
s/ M. Schoenhardt