VOLS is proud to join the National Health Law program (NHeLP) and 54 other organizations nationwide who submitted an amicus brief to the 9th Circuit Court of Appeals seeking reconsideration in Doe v. Trump. This case challenges the Trump era policy which barred entry to immigrants unless they demonstrated that they had “approved” health insurance or enough funds to pay for their foreseeable health care costs. “The proclamation advanced two of the past administration’s most callous goals: reducing immigration and attacking the Affordable Care Act and Medicaid program. The proclamation ignored Congress’s wishes and instead directed immigrants towards the short-term junk plans that the former President promoted,” said Sarah Grusin, staff attorney at the National Health Law Program.
Click here to read the full brief (PDF). The summary of the argument can be read below:
SUMMARY OF ARGUMENT
On October 9, 2019, the President issued Presidential Proclamation 9945 purportedly to address “uncompensated care costs” incurred by uninsured, lawfully present immigrants. See Presidential Proclamation 9945, Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System, In Order To Protect the Availability of Healthcare Benefits for Americans, 84 Fed.
Reg. 53991 (Oct. 9, 2019). The solution offered by the Proclamation: bar the entry of immigrants to the United States unless they demonstrate they have “approved” coverage or the financial resources to pay for reasonably foreseeable health care costs. Id.
Congress, through the Affordable Care Act (ACA) and the Medicaid program, has already “stepped into this space and solved the exact problem” addressed by the Proclamation. Trump v. Hawaii, 138 S. Ct. 2392, 2411-12 (2018). The sweeping and interlocking reforms in the ACA, together with the state Medicaid coverage option for “lawfully residing” children and pregnant women, create a carefully-tailored scheme to reduce uncompensated care by providing comprehensive and affordable coverage to newly-arrived immigrants.
The panel’s decision offers a cramped and novel interpretation of these health care statutes. It focuses on two isolated statutory provisions, while ignoring the broader context and structure of the ACA and Medicaid Act’s interlocking reforms. Cf. King v. Burwell, 135 S. Ct. 2480, 2485 (2015) (describing ACA’s “interlocking reforms designed to expand coverage”); Morris v. California Physicians’ Serv., 918 F.3d 1011, 1015 (9th Cir. 2019) (“Composed of ten titles spanning over 900 pages and hundreds of provisions, the ACA brought sweeping reforms to our health care system.”). A complete view of the text, structure, and legislative history reveals that Congress intended the comprehensive plans offered in the ACA and Medicaid program to be the chief solution to uncompensated care for lawfully present immigrants.
The panel’s approach ignores the serious practical consequences the Proclamation would have on the intricate scheme Congress established.
Notwithstanding Congress’s directives, the Proclamation excludes Medicaid for adults and subsidized Marketplace coverage for all individuals from the list of “approved” plans, meaning that an immigrant must obtain some other form of insurance to satisfy the Proclamation’s mandates. The plans that will be most readily available are short-term, limited duration plans that do not comply with the ACA’s requirements for covering essential health benefits, non-discrimination provisions, or cost protections. The Proclamation, therefore, directs immigrants away from the coverage Congress expressly intended them to have.
Finally, the panel’s opinion, for the first time ever, condones using foreign policy powers to regulate domestic health care policy and requires consular officers at the State Department to implement a complex health care policy. The Supreme Court has rejected the suggestion that “Congress would have delegated” important health care policy choices to an agency “which has no expertise in crafting health insurance policy of this sort.” King, 135 S. Ct. at 2489. The panel’s decision authorizing that delegation is in direct conflict with this precedent. The Court should grant rehearing en banc.