Temporary Restraining Order Blocks Trump Administration from Implementing Rule Requiring New Immigrants to Have Health Insurance

On November 2, 2019, Judge Michael Simon of the U.S. District Court for the District of Oregon issued a nation-wide temporary restraining order ("TRO"), preventing the Trump Administration from implementing its new policy of requiring aliens applying for visas to become lawful permanent residents to demonstrate that they will be covered by an approved health insurance plan within 30 days of entering the United States.  The Trump Administration was set to implement the policy on November 3, 2019.

A group of plaintiffs filed a lawsuit challenging the policy on October 30, 2019.  The followed up by filing a motion for a TRO on November 1, 2019.  The Court held an emergency hearing on November 2, 2019.  The parties presented oral arguments at the hearing, but did not have time to file written arguments.

The Government had argued that the plaintiffs made their own emergency, by delaying until a few days before the policy was to go in effect to file their complaint and motion.  Judge Simon disagreed, noting that the Presidential Policy announcing the new policy was published on October 4, 2019, and that under the circumstances, filing a complaint twenty-six days after the issuance of the Proclamation was not an unreasonable delay.

Pursuant to the Presidential Proclamation, if an applicant for an immigrant visa could not show that he or she would be able to purchase an approved health insurance policy within 30 days of entering the United States, they would be deemed inadmissible as likely to become a public charge, and barred from entering the United States.

The Court first noted that Congress had addressed the public charge grounds of inadmissibility in the Immigration and Nationality Act ("INA").  Congress provided that a number of factors should be examined to determine whether a person is likely to become a public charge, which include the alien's age, health, family status, assets, resources, and financial status, and education and skills.  No one factor was to be determinative.  The statute did not mention a person's health insurance status as one of those factors.

Moreover, the Proclamation listed a number of health insurance plans that would acceptable.  The Court found that almost all of the listed types of insurance plans would be unavailable to most intending immigrants.  In addition, the Proclamation excluded any health insurance plan purchased through a state's marketplace pursuant to the Affordable Care Act (also known as Obamacare) if the state subsidized the plan.  Thus, the Court noted that the Proclamation excluded the one type of health insurance plan many intending immigrants would be able to afford.  Furthermore, the Court noted that Congress had rejected a proposal to consider the receipt of non-cash benefits from the government in making the public charge consideration.  The Presidential Proclamation, therefore, was inconsistent with the congressional intent as expressed through the INA.

Because this was an extraordinary measure being taken by the Court at such an early stage in the lawsuit, Judge Simon limited the TRO to 28 days, unless extended by the Court.  The Court further scheduled another hearing on November 22, 2019.

By:  William J. Kovatch, Jr.