by Christopher Jacobs
The administration wants to allow hundreds of thousands of individuals here illegally to obtain federal subsidies for health-care coverage.
Late last year, the Biden administration gave Washington state permission to let undocumented immigrants buy Obamacare coverage. Now, the administration wants to go further, and allow hundreds of thousands of individuals here illegally to obtain federal subsidies for that coverage.
On Monday, the Department of Health and Human Services (HHS) released a proposed rule that would extend eligibility for Medicaid and Obamacare coverage to individuals participating in the Deferred Action for Childhood Arrivals (DACA) program. Doing so would open up taxpayer-funded insurance subsidies to as many as 580,000 individuals illegally present in the United States, which will only encourage additional migration. Per the administration’s estimates, this change would also cost at least $2 billion in its first five years, at a time when the federal government already faces staggering debt.
The rule includes a series of technical changes, such as “propos[ing] a nomenclature change to use the term ‘noncitizen’ instead of ‘alien’ when appropriate to align with more modern terminology.” (Seriously.) Its most substantive change proposes modifying the definition of the words “legally present” when it comes to accessing benefits for a series of individuals, most notably DACA recipients.
For instance, Section 1312(f)(3) of Obamacare states that “if an individual is not … a citizen or national of the United States or an alien lawfully present in the United States, the individual shall not be treated as a qualified individual and may not be covered under a qualified health plan … that is offered through an [insurance] Exchange.”
Similar language relating to individuals “lawfully present” occurs elsewhere in Obamacare regarding access to insurance subsidies, including most prominently in Section 1412(d):
(d) NO FEDERAL PAYMENTS FOR INDIVIDUALS NOT LAWFULLY PRESENT. — Nothing in this subtitle or the amendments made by this subtitle allows Federal payments, credits, or cost-sharing reductions for individuals who are not lawfully present in the United States.
This language prompted President Barack Obama to claim in his September 2009 speech to Congress that “the reforms I’m proposing would not apply to those who are here illegally,” prompting Rep. Joe Wilson, R-S.C., to shout out “You lie!” in response to Obama’s (false) claim.
More than a dozen years after the law’s passage, the weaknesses of Obama’s claim have become even more readily apparent. As was obvious back in 2009, Obamacare exchanges require the verification of citizenship but not identity, making it possible for individuals to circumvent the controls by engaging in identity fraud or other subterfuge. Additionally, as this week’s rule admits, while Obamacare repeatedly referred to those “lawfully present” as being eligible for benefits, it nowhere defined that term — leaving it up to unelected bureaucrats to cobble together a definition. Lastly, the DACA regime presupposes that the executive can unilaterally change who is, and is not, considered “lawfully present” and therefore eligible for benefits.
The proposed rule recognizes the likelihood of a legal challenge to its new eligibility definition. In noting that the Medicaid provisions “may impose substantial direct costs on state governments,” the rule states clear standing to sue. And by including a severability clause — a rare occurrence in a regulatory filing — HHS admitted that “the underlying statutory authorities and respective regulations contain some differences,” meaning a court could well strike down any rule it finalizes.
In some ways, the proposal represents a costly “solution” in search of a problem. By the administration’s own estimates, nearly two-thirds (66 percent) of the DACA participants covered by the proposed rule already have health insurance. And yet at no point does the proposed rule address the issue of whether the prospect of “free” coverage might encourage some of those individuals to drop their private insurance and go on the government rolls instead.