Trump Administration Seeks to Limit Legal Immigration Through Executive Orders: A Public Charge and Health Insurance Mandate End-Around

Written by: Ashik R. Jahan, Esq. 

President Donald Trump issued a proclamation earlier this month that will require immigrants to prove they can obtain health insurance before they can immigrate to, or obtain permanent residency in, the United States.  The presidential proclamation will not affect refugees, asylum seekers or people on temporary visitor visas, but requires other intending immigrants to demonstrate they will have health insurance within 30 days of entering the country, or that they can afford to cover any medical expenses.  The measure will tentatively be effective Nov. 3, barring imminent court challenges. The required insurance can be provided by an employer or be purchased individually, and it can be for catastrophic or short-term coverage. However, immigrants would not be able to obtain a visa if they use the Affordable Care Act’s subsidies when purchasing coverage.

The move combines two critical political issues, immigration and health care, during a time when most Democratic presidential candidates have said they support providing health care to undocumented immigrants, a position ridiculed by President Trump on Twitter.  Now, the White House has touted the proclamation as “protecting health care benefits for American citizens,” arguing that uninsured immigrants create a financial burden for hospitals and doctors, forcing them to charge higher fees for Americans to cover the cost. According to a senior administration official, “People who come here shouldn’t immediately be on public assistance…[w]e should bring people here who contribute and not drain resources.” The proclamation was viewed as “a common-sense requirement that will protect both immigrants and Americans,” by Tim Chapman of Heritage Action, a conservative policy advocacy organization.

Yet, as a recent Politico article notes, “this proclamation could have serious impact on the health care industry for both payers and providers.”  Additionally, immigrants, unable to use Obamacare coverage, “could turn to Trump’s new short-term health plans as a way to meet the requirements….but those cheaper plans also offer skimpier coverage, creating new risks like lower revenue — and more bad debt — for hospitals and doctors who treat those patients.”  The move effectively creates a health insurance mandate for immigrants, just months after Trump and congressional Republicans repealed the Affordable Care Act’s mandate, arguing that its tax penalty was “cruel” and created an unfair burden.

The Migration Policy Institute (MPI), a non-partisan think-tank, estimated that the new proclamation could potentially exclude up to two-thirds of future immigrants. A Washington Post columnist blasted the administration’s outrageous “sabotage” of our healthcare and our immigration systems. Others have cast the order as a “legal immigration ban.” The order was even described as a “classic catch-22” for low-income immigrants, said Larry Levitt of the Kaiser Family Foundation, a non-profit organization focusing on U.S. healthcare. “They will need health insurance to be in the country legally [and] the only way they may be able to afford coverage is with ACA subsidies…but if they buy insurance with ACA subsidies, it won’t count as insurance under the proclamation,” said Levitt.  It should be noted that immigrants on Medicaid coverage would also not qualify under Trump’s proclamation.

The president’s proclamation also builds on the Administration’s August “public-charge” rule, which could itself slash immigration by half, as it allows federal officials to deny permanent residency to legal immigrants who have received certain public benefits, like Medicaid, or who are deemed likely to do so in the future.  Specifically, the rule says applicants for green cards and visas can be turned down if they have low incomes or little education or have used — or might be expected to use — benefits such as Medicaid, food stamps and housing vouchers. The point, says the Trump administration, is to encourage “self-reliance and self-sufficiency” among new immigrants.

According to MPI, the public charge rule gives the administration enormous discretion to deny admission to intending immigrants with incomes or financial assets below 250 percent of the poverty line (about $62,000 for a family of four). This could significantly reshape immigration from Asia, Latin America & Africa.” MPI data show that 72% of Caribbean, 71% of Mexican and Central American, 69% of African, and 52% of both Asian and South American recently arrived, legally present noncitizens (“persons with green cards or legal nonimmigrant visas”) are in families with annual incomes below 250% of the federal poverty line. Only 36% of recent European, Canadian, and Australian/New Zealand arrivals are in families that fall below the new threshold.

It’s really a backdoor way of prohibiting low-income people from immigrating,” said Charles Wheeler of the Catholic Legal Immigration Network Inc., the nation’s largest network of non-profit immigration programs. “This is an end run around Congress to achieve through executive fiat what the administration cannot get through Congress…and to scare immigrants away from using public benefits to which they are legally entitled,” said Doug Rand, co-founder of Boundless, a pro-migrant group that helps families navigate the U.S. immigration system.  “Without a single change in the law by Congress, the Trump public charge rules mean many more U.S. citizens are being and will be denied the opportunity to live together in the U.S. with their spouses, children and parents,” said Ur Jaddou, a former U.S. Citizenship and Immigration Services chief counsel.

The “public charge” rule was set to take effect Oct. 15 but has faced legal challenges.  In three rulings, federal judges in New York, California and Washington State recently issued injunctions temporarily blocking the “public charge” rule. The judges ruled in favor of 21 states and the District of Columbia, which challenged the policy almost immediately after it was announced in August. U.S. District Judge George Daniels in New York said the policy redefined longstanding immigration laws with a new framework that had “no logic.” Allowing the policy to go into effect now, he said, would have a significant impact on “law-abiding residents who have come to this country to seek a better life.” In California, U.S. Judge Phyllis Hamilton found “the plaintiffs are likely to prevail on the merits, for numerous reasons.” In New York, Judge Daniels called the rule a “policy of exclusion in search of a justification.” He added that “[i]t is repugnant to the American Dream of the opportunity for prosperity and success through hard work and upward mobility,” Daniels wrote.

Whether the public charge rule or the health insurance mandate will survive these legal challenges remains to be seen, but it is clear that the Trump Administration is moving forward with its agenda to transform and limit legal immigration by bypassing Congress through the issuance of executive orders.  Not surprisingly, the Obama Administration pushed through DACA (Deferred Action for Childhood Arrivals) by similar means, but for far more humanitarian reasons, an action which then-candidate Trump lambasted.  Now, the Trump Administration has sought to terminate that Obama-era immigration program. However, the legality of the Trump administration’s decision to do so will be heard by the Supreme Court, likely in June 2020.  The Trump Administration’s public charge rule and the health insurance mandate could follow soon thereafter.