Nadia Dahab, a local attorney involved in the legal fight against Trump’s policy banning immigrants who can’t pay for health care, says the White House is subverting Congress
On Thursday, Jan. 9, the Ninth Circuit Court of Appeals in San Francisco heard oral arguments for a landmark lawsuit to halt the implementation of the Trump administration’s health care ban for immigrants.
The ban, which was announced via presidential proclamation on Oct. 4, would require legal immigrants to prove they held an approved health insurance plan or could pay for health care out of pocket to be allowed entry to the U.S.
According to the proclamation, the ban is necessary to protect U.S. taxpayers from being burdened with the costs of uncompensated care — the unreimbursed care hospitals give their patients because they lack health insurance or the ability to pay for their health care — that is eventually passed on to the American public through higher taxes, higher premiums and higher fees for medical services.
Trump’s proclamation states that “lawful immigrants are about three times more likely than United States citizens to lack health insurance,” suggesting that immigrants who are in the U.S. legally are saddling the American public with their medical debt.
According to information compiled by the Migration Policy Institute, in 2017, approximately 57% of U.S. immigrants had private health insurance (compared to 69% of the U.S. born), and 30% had public health insurance coverage (compared to 36% of the native born).
Since implementation of the Affordable Care Act in 2014, health insurance coverage has improved for both the U.S. born and immigrants. From 2013 to 2017, the immigrant uninsured rate fell from 32% to 20%, and the rate for the native born fell from 12% to 7%.
The proclamation has been widely criticized and labeled as unconstitutional by immigrant rights groups because of its ability to inflict irreparable harm on hundreds of thousands of people, including U.S. citizens and lawful permanent residents.
The Justice Action Center, a nonprofit organization that fights for justice in the immigrant community, said the ban “would permanently separate families and force employers to lose essential employees. Moreover, the proclamation is unconstitutional and violates separation of powers, unilaterally rewriting U.S. immigration laws and violating Congress’ expressed intent to provide affordable health care coverage to legal immigrants and citizens regardless of financial status.”
The lawsuit was filed Oct. 30 by litigators from the Justice Action Center, the American Immigration Lawyers Association and Portland’s Innovation Law Lab. Sidley Austin LLP is providing pro bono assistance. The plaintiffs include the Latino Network, based in Portland.
Street Roots spoke with Nadia Dahab, a senior staff attorney at Innovation Law Lab, about the details of the case, who would be affected by the ban and its impact on the immigrant community.
Anna Pedersen: For someone who hasn’t heard about the proclamation, could you share with us a brief background of the health care ban?
Nadia Dahab: The proclamation lists approved health insurance plans, which doesn’t include the subsidized plans available on the Affordable Care Act marketplaces but does include options like short-term, limited-duration plans, travel insurance and other non-comprehensive forms of coverage that are not ideal and sometimes not available at all to individuals who are outside the United States.
The proclamation was scheduled to take effect 30 days after the announcement, Nov. 3. So at the end of October, JAC, AILA, and the Innovation Law Lab with Sidley Austin LLP as pro bono counsel filed a lawsuit challenging the proclamation as inconsistent with federal law.
The day after we filed the lawsuit, we filed a motion for a temporary restraining order, which is an emergency injunction prohibiting implementation of the proclamation. We filed that hearing in Portland. We had a hearing on Saturday, Nov. 2, in front of Judge (Michael H.) Simon, and he issued an emergency temporary restraining order that basically prohibited the government from implementing the proclamation at all for 28 days.
The temporary restraining order by definition could only extend for 28 days, so we set a hearing for Nov. 22 for a motion for preliminary injunction, which would prohibit implementation of the policy during the pendency of the case. The next week, right before Thanksgiving, Judge Simon ordered a nationwide preliminary injunction, which prohibits the government, for the pendency of the case, from implementing the proclamation anywhere.
The hearing we had on Jan. 9 was a hearing on the government’s motion to stay, meaning that the government appealed Judge Simon’s decision. So basically, the government went to the Ninth Circuit and said, “Judge Simon was wrong. If you keep the injunction in place, you’ll irreparably harm the government because it would interfere with the president’s authority to issue whatever proclamations he wants. And he has good reason to issue this proclamation because he’s trying to fix the problem of uncompensated care costs in the American health care system, so the longer this injunction exists, the longer we exacerbate this problem.”
But the government has a high burden — it will be hard to undo Judge Simon’s decision, so we think we made a good argument and we’re hopeful.
We expect the Ninth Circuit to issue an order within the next week or so.
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Pedersen: The civil rights coalition in this case is arguing that if implemented, the health care ban would be unconstitutional. Could you explain the ways in which the ban would violate federal law?
Dahab: There are a couple of different federal laws in place that make it clear that what the president has done here is inconsistent with congressional will.
The first would be the Immigration and Nationality Act, which sets forth certain grounds for inadmissibility, meaning it details certain reasons why the U.S. can declare someone inadmissible to the U.S. One of those grounds is called the “public charge ground,” which is also subject to a lot of litigation right now, and this says that if the government makes a determination that someone would be a “public charge,” then they can declare that person inadmissible.
There are five statutory factors that a consular officer takes into account in determining whether someone is a public charge. What the president has done here is taken one of those factors — financial assets, or wealth — and made it determinative. He can’t do that because Congress has already said that other factors need to be taken into account when offering admission. So that’s one example of drastic executive overreach; it contravenes what Congress has declared to be the law.
The other federal law that it is inconsistent with is the Affordable Care Act, which makes health care available and incentivizes immigrants to be able to access the subsidized health care plans that are available on state exchanges. The proclamation doesn’t include those subsidized options, so it directly contravenes Congress, as well.
Pedersen: Stephen Manning, the executive director of Innovation Law Lab, has said that “when viewed next to this administration’s parallel efforts, it is clear that we are witnessing an attempt to achieve a mass expulsion and exclusion of immigrants of color.” Could you speak to what these parallel efforts are and how this ban fits into the larger national conversation on immigration?
Dahab: I think this is the administration’s latest attempt to curtail immigration. These sorts of policies are consistent with the president’s rhetoric, and they disproportionately impact communities of color. They impact immigrants from Latin America, Africa and Asia who may not be able to afford out-of-pocket health care costs. In that sense, this is another policy that is a thinly veiled attempt to exclude immigrants of color under the guise of a legitimate application of the federal law.
The impact of this is clear, and that in itself is consistent with all of the other policies he’s implemented — the asylum ban, the remain-in-Mexico policy. All of these add up to be a clear attempt at collective expulsion of certain communities from the United States.
Pedersen: If implemented, the ban could affect up to two-thirds of legal immigrants. Who are the people who would be affected? What would be the consequences of this ban on immigration policy and reform?
Dahab: There’s one specific plaintiff I’m thinking of who is a good example of how this actually plays out.
Blake Doe is a student at Oregon State University. He is a U.S. citizen, and his parents are both Mexican citizens. His parents have government-approved family-based visa applications. But Blake’s mom has a painful chronic medical condition that makes it pretty difficult for her to live apart from her son. She and her husband don’t have the financial means to buy the health insurance that the president would require them to or to pay their out of pocket medical costs. They are currently in Mexico, with their government-approved visa applications in hand, but if they were to go to their consular interview, they would not be able to satisfy the requirements of this proclamation.
This is the consistent story of several of our plaintiffs. The impact feels like permanent family separation, which is also a consistent result of this administration’s policies and is totally contrary to what our federal law is designed to do. We have a family-based immigration system that is designed to prevent family separation, to reunify families and to promote diversity. All of these goals are undermined by this proclamation.
Pedersen: What are the next steps in the case? What can concerned citizens do to advocate for immigrant rights and support the work of those fighting to halt the ban?
Dahab: The next step is to hear what the Ninth Circuit says about the case. Jan. 9 was a very important hearing in that the court will hopefully uphold the injunction that prevents the implementation of the ban. With respect to a lot of these policies that the administration has implemented, we’ve seen the government fight nationwide injunctions very aggressively, and we’ve seen the courts limit the scope of those injunctions significantly.
If the Ninth Circuit does keep the injunction in place, especially if they keep it as a nationwide injunction, I suspect the next thing that the government will do is ask the Supreme Court to review that. The Supreme Court can decide whether or not it wants to review it. It doesn’t have to, but if it does, there is a chance that the court could limit the injunction or overturn it altogether.
In terms of what folks can do, we’re really hoping the community in the Bay Area, which is where the Ninth Circuit is, will engage in these issues. We had a rally in front of the courthouse, and we want people to be engaged, active and vocal on why cases like this are important. We need help from all community members in getting the broader public to understand the disparate impact that these sorts of policies have had across communities.
Supporting organizations like the Innovation Law Lab and AILA who are on the ground doing this work is so important. Whether that’s financial support or engaging with us on the issues by coming to our rallies or volunteering, it goes a long way in times like this.
Timeline
Oct. 4, 2019: President Donald Trump issues a proclamation suspending the entry of immigrants who can’t pay for health care.
Oct. 30: A lawsuit is filed by the Justice Action Center, the American Immigration Lawyers Association, Innovation Law Lab and Sidley Austin LLP to halt implementation.
Oct. 31: Litigators file a motion for a temporary restraining order, which would prohibit implementation of the policy for 28 days.
Nov. 2: Oregon’s U.S. District Judge Michael H. Simon issues an emergency temporary restraining order.
Nov. 3: The proclamation would have taken effect if not for the restraining order.
Nov. 22: Plaintiffs seek a preliminary injunction, which would block implementation of the policy for the duration of the case.
Nov. 26: Judge Simon orders a nationwide preliminary injunction, prohibiting the government from implementing the policy anywhere while the case moves through court.
Dec. 20: The Ninth Circuit Court of Appeals denies a government request for an emergency temporary stay, leaving the injunction in place and scheduling an oral argument.
Jan. 9, 2020: The Ninth Circuit hears oral arguments on the government’s motion to stay. A decision is expected soon.
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