Ustun Law Group, PLLC

News Analysis:

Michael Simon, a federal judge of U.S. District Court in Portland, Oregon issued a  temporary restraining order on implementation of Presidential Proclamation Requiring Health Insurance for Immigrant applicants.

Background:

President Trump’s October proclamation required that prospective immigrants demonstrate they could obtain health insurance within 30 days of arriving in the United States.

According to President Trump:

“Healthcare providers and taxpayers bear substantial costs in paying for medical expenses incurred by people who lack health insurance or the ability to pay for their healthcare.  Hospitals and other providers often administer care to the uninsured without any hope of receiving reimbursement from them”.

He also believes:

“While our healthcare system grapples with the challenges caused by uncompensated care, the United States Government is making the problem worse by admitting thousands of aliens who have not demonstrated any ability to pay for their healthcare costs. Notably, data show that lawful immigrants are about three times more likely than United States citizens to lack health insurance.  Immigrants who enter this country should not further saddle our healthcare system, and subsequently American taxpayers, with higher costs”

Interestingly enough, this proclamation came shortly after a wave of legal challenges seeking to block Trump’s “public charge” rule, which would have made it more difficult for immigrants to get green cards if they needed federal assistance, such as food stamps or Medicaid. That rule was put on hold last month before it went into effect. According to experts the policy was made to favor wealthy immigrants, and would have been particularly arduous for the low-income immigrants who are unable to pay for “reasonably foreseeable medical cost”. This policy would prevent low-income U.S. Citizens from bringing family members to the USA. They would not even be able to buy insurance on the Obamacare individual market with eligible tax subsidy. However, there was no mechanism whatsoever to reject the option and buy health insurance from the federal exchange website.

This has also caused a panic amongst immigrants who are already living here:

  • Some have sought to give up federal health insurance to which they are legally entitled, including Medicaid
  • Others fear that their relatives will not be able to immigrate
  • Other immigrants expressed concern that if they leave the country to apply for their visas from consulates in their home countries they would be denied reentry

According to Jesse Bless, director of litigation at the American Immigration Lawyers Association:

“People are confused and terrified they will lose the ability to live in the U.S. with their loved ones,”

According to the Migration Policy Institute estimate:

  •  The presidential proclamation could prohibit the entry of about 375,000 people annually, mainly those coming into the country on a family immigration program, who make up the majority of green-card holders.  More details of that study could be found here.

According to the Kaiser Family Foundation:

  • About one in four legal immigrants lack health insurance, compared to about one in 10 citizens, more details of that study could be found here.

Concerns about Implementation:

The proclamation had  sparked concern among federal officials tasked with implementing it:

  •  During a conference call in October, officials within the Centers for Medicare & Medicaid Services (CMS) raised practical and legal questions about implementing the proclamation
  •  Among the concerns raised on the call were whether enforcing the proclamation was legal?
  • At least one official raised concerns about how the order would affect immigrants currently on the health care exchanges set up by the Affordable Care Act?

One attorney on the call said that:

 “I’m really thinking that in many ways, sticking to the letter of the proclamation will cause us to run afoul of current laws on the book,”

Additional legal complexity arising from the proclamation:

  • Politico also reported that CMS officials had legal concerns about implementing the order, but details from the call had not been previously reported.
  • A spokesman for CMS denied that the agency had legal concerns about the president’s proclamation

State officials were confused about the implication of this proclamation on state-run health care programs open to immigrants :

  • Uncertain how or whether the new rules would affect state-run health care programs open to immigrants because they had not yet received federal guidance
  • More than a dozen members of state health exchanges held a call on Friday to try to resolve confusion over how to comply?
  • Several state health officials submitted comments warning of dire consequences for immigrants if the proclamation went into effect

According to spokesman Johnathan Monroe

“The Department has no concerns with implementing the President’s proclamation. Any alleged comments to the contrary are inaccurate,”

Seven U.S. citizens and the nonprofit Latino Network brought the lawsuit against the new policy.

The organizations involved in the case — the Justice Action Center, the American Immigration Lawyers Association and the Innovation Law Lab, with pro bono assistance from the law firm Sidley Austin — celebrated the decision last Saturday but was aware that their case was far from over. The block will remain in place for 28 days, during which the plaintiffs and the government will try to gather and present evidence to the court.

The White House criticized the restraining order on Sunday and asserted the president’s right to make such changes to immigration policy.

According to press secretary Stephanie Grisham

“It is wrong and unfair for a single district court judge to thwart the policies that the president determined would best protect the United States healthcare system,”

List of Testimonies about the Court’s ruling:

According to Carmen Rubio, executive director of Latino Network:

“Today’s decision highlights the urgency of blocking this health care ban before it causes irreparable damage to our community and those we serve,”

According to Esther Sung, Justice Action Center senior litigator, who argued at the hearing on behalf of the plaintiffs:

“The ban would separate families and cut two-thirds of green-card-based immigration starting tonight, were the ban not stopped. It’s egregious that President Trump is attempting to flout the will of Congress and squeeze through a complete overhaul of the nation’s immigration laws without anyone noticing. Our fight will continue — we will stand with our plaintiffs and all immigrants to challenge this unjust health care ban.”

According to Stephen Manning, Executive Director of Innovation Law Lab:

 “Oregon’s and our nation’s collective prosperity depends on the rule of law; the court’s decision protects the rule of law and families across the nation by halting President Trump’s harmful proclamation.”

Jesse Bless, Director of Federal Litigation at AILA said:

 “We applaud the court’s ruling; countless thousands across the country can breathe a sigh of relief today because the court recognized the urgent and irreparable harm that would have been inflicted in the absence of a TRO. This proclamation would permanently separate families and damage employers; it is a clear violation of the constitution. The president simply does not have the authority to rewrite the law by proclamation.”

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