Trump Suspends Entry of Aliens Seeking to Immigrate Who Cannot Afford Health Insurance

On Friday, October 4, 2019, President Donald Trump issued the “Presidential Proclamation on the Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System.”  Trump found that permitting aliens who did not have or could not afford adequate health insurance to immigrate to the United States would be detrimental to the interests of the country.  Accordingly, Trump suspended their entry into the United States. 
 

In doing so, Trump seeks to expand upon the authority that the U.S. Supreme Court recognized he possessed in the case of Trump v. Hawaii, 138 S.Ct. 2392 (2018).  That case involved the travel ban Trump implemented within the first months of his Administration, and revised twice during the course of litigation.  In the first Proclamation, Trump banned the entry of all nationals from seven countries, claiming that the countries were recognized threats to national security and did not provide adequate information to allow U.S. immigration authorities to evaluate whether their nationals were themselves security threats.  All seven countries possessed a population that was overwhelmingly Muslim.  Viewed in light of statements Trump made during his presidential campaign disparaging Muslims, many called the President's action Trump's Muslim ban.  As Trump revised his actions through subsequent Proclamations, certain countries were dropped from the list, and others added, including two countries that did not possession a majority of Muslims in their population, Venezuela and North Korea.
 

The travel ban was challenged by several states in federal court, which resulted in an injunction preventing the travel ban's implementation pending the outcome of full litigation.  The Supreme Court addressed whether the injunction was warranted.  In doing so, the Court considered the likelihood that the defense of the travel ban would succeed on the merits.  The Court found in favor of the President, reversing the opinion of the U.S. Court of Appeals for the Ninth Circuit which implemented the injunction, and remanded the case for further proceedings.
 

Through Trump's latest Proclamation, he creates a whole new class of aliens inadmissible to the United States, namely aliens seeking an immigrant visa who cannot show that they will be covered by an adequate health insurance policy within 30 days of entry into the country.  To support this new policy, Trump cites section 212(f) and 215(a) of the Immigration and Nationality Act (“INA”).  These are the same statutory provisions that Trump used to support his travel ban.
 

In order to understand the legality of Trump's new policy, it is first necessary to take a step back and consider some of the basics of U.S. immigration law.  Congress defined certain certain classes of aliens who are prohibited from entering the United States.  This is the law of inadmissibility.  Section 212(a) of the INA establishes the grounds for inadmissibility, which include the commission of certain crimes, some health related grounds, habitual drunkenness, public safety and national security grounds, and the likelihood that an alien will become a public charge.  In addition to the enumerated grounds of inadmissibility, Congress granted the President broad discretion, through section 212(f) of the Act, to find that the entry of any alien or class of aliens would be detrimental to the interests of the United States.  Upon the issuance of a presidential proclamation, the President may suspend the entry of such aliens, or place restrictions on the entry of such aliens, as he deems appropriate.
 

Through section 215(a) of the INA, Congress granted the President the authority to prescribe reasonable rules, regulations, orders, limitations and exceptions governing the entry of any alien.
 

In Trump v. Hawaii, the Supreme Court addressed the President's authority pursuant to section 212(f), and found it unnecessary to address the authority granted in section 215(a).  Delivering the opinion of the Court, Chief Justice John Roberts found that Congress granted broad authority to the President through section 212(f).  Trump supported his travel ban through detailed findings in the Presidential Proclamation, crafted the travel ban narrowly, and did not contradict any express limitations as set forth in the text of the INA.  In fact, the Chief Justice noted that Trump's travel ban was supported by a more detailed proclamation than any prior proclamation justifying previous president's invocation of section 212(f).  Critics of the Supreme Court decision decried that the Court had given Trump broad discretion to write new restrictions and requirements in the INA, so long as Trump did not directly contradict the text of the statute.
 

The current policy of imposing health insurance requirements on aliens seeking an immigrant visa appears to be a test of how far Trump's authority over immigration law extends.  Trump essentially creates an entirely new ground of inadmissibility, not specifically proscribed by Congress.
 

Trump begins his Proclamation with findings that the uninsured place a heavy burden on the healthcare system of the United States, making the cost of healthcare more expensive for those with insurance.  The findings read like a typical "blame the poor for their situation" approach common to those who oppose government spending on social programs. 

 

 

It should be noted that the findings concerned the uninsured in general, and are not limited to aliens who are uninsured.  The Proclamation begins:

• 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.  The costs associated with this care are passed on to the American people in the form of higher taxes, higher premiums, and higher fees for medical services.  In total, uncompensated care costs — the overall measure of unreimbursed services that hospitals give their patients — have exceeded $35 billion in each of the last 10 years.  These costs amount to approximately $7 million on average for each hospital in the United States, and can drive hospitals into insolvency.  Beyond uncompensated care costs, the uninsured strain Federal and State government budgets through their reliance on publicly funded programs, which ultimately are financed by taxpayers.

Thus, Trump blames the high cost of healthcare in the United States on the uninsured.  It may be true that when people receive healthcare for which they cannot afford to pay, that plays a role in the cost of healthcare for others.  However, Trump ignores that the under-regulated alliance between healthcare providers and health insurance companies play a much greater role in making healthcare in the United States unaffordable in the first place.  That is, health insurance companies demand steep discounts from a healthcare provider's listed prices, in exchange for an increased volume of customers covered by the insurance company.  In return, healthcare providers inflate their prices to exorbitant levels so that they can still realize a profit even with the steep discounts granted to the insurance companies.  Healthcare providers then charge these exorbitant prices on the uninsured.  It is this alliance that drives the majority of the high costs associated with healthcare in the United States.  By ignoring this reality, Trump's Proclamation reads like the argument of an insurance company lobbyist seeking to oppose meaningful healthcare reform.
 

At any rate, Trump's connection between high healthcare costs in the United States and aliens without adequate health insurance is tenuous at best.  Trump claims that aliens seeking to immigrate to the United States are three times more likely to lack health insurance than U.S. citizens.  Thus, these aliens should not be permitted to saddle the healthcare system by seeking care for which healthcare providers would not be compensated.  The problem here, is that while Trump claims that aliens seeking to immigrate are more likely to be uninsured, he does not specifically find the rate at which such aliens seek healthcare coverage in the United States.  In addition, Trump makes no specific findings that when immigrant aliens seek treatment they don't pay for that treatment despite being uninsured.  Moreover, Trump ignores the fact that the alliance between healthcare providers and health insurance companies, as discussed above, results in the United States having the highest cost of healthcare in the world.  Thus, what an immigrant could be expected to pay for treatment in the United States far exceeds what immigrants would pay in their country of origin.

 

 

Nonetheless, it could be argued that Trump's new policy is merely a clarification of the requirement, already contained in the INA, that an immigrant not be likely to become a public charge.  Age, health, family status, financial resources, education and skill are already factors set forth by the statute to consider in determining whether an alien is likely to be a public charge.  Health insurance can be seen as merely an extension of that list of factors.  In this regard, some Immigration Judges have already required that a respondent seeking to adjust to the status of a permanent resident address whether he or she has or can afford health insurance when addressing the public charge ground of inadmissibility.
 

Additionally, the requirement is narrowly crafted to address the problem Trump identifies in his findings.  That is, the requirement only applies to aliens who seek to immigrate to the United States.  That is, it applies to aliens who want to live in the United States legally.  The requirement does not apply to non-immigrant visas, such as tourists.  Moreover, the requirement does not apply to those seeking protection as a refugee or asylee.
 

In sum, it does not appear that the new policy will be very effective in reducing the costs of healthcare in the United States.  Rather, it looks like yet another attempt by the Trump Administration to make immigrants scapegoats in its quest to reduce even the legal immigrant levels of the United States.  As some would argue, this is just a continuation of cruelty to deter aliens from coming to the United States to live.  A cynic could point out that the Republican Party's support comes overwhelmingly from white Americans, who are dwindling as a proportion of the country's population.  Instead of broadening the party's appeal to non-white Americans, Republicans have instead chosen to try to limit the growth of minorities as a percentage of the population.  Trump's new policy aimed at restricting immigration, can be seen as an attempt to further that strategy.  However, given the Supreme Court's decision in Trump v. Hawaii, Trump may ultimately prevail in this restriction on immigrants.
 

By: William J. Kovatch, Jr.

Putting the 9th Circuit's Decision Concerning Trump's Travel Restrictions into Perspective

On the evening of February 9, 2017, the U.S. Court of Appeals for the Ninth Circuit issued an order denying the Government’s motion for a stay of a temporary restraining order from a U.S. District Court in Washington State preventing the Government from enforcing an executive order signed by President Trump which put a temporary halt to the admission of refugees, and to the admission of aliens from seven countries which have been deemed to be a danger to national security.  The case is entitled, The State of Washington, et al. v. Donald Trump, et al.

Immediately, both sides took to the airwaves and to the Internet attempting to turn the decision into a bigger deal than it really is.  Both sides have an incentive to engage in a publicity war and court public opinion.  The opponents of the executive order have an interest in giving the impression that this decision is a major victory against the Trump Administration.  Likewise, the proponents have an interest in creating a public perception that the judiciary needs to be reigned in with more favorable presidential appointees.

In this publicity battle, it is important to keep the 9^th Circuit’s decision in perspective, and consider what it is that the Court did and didn’t do.

This is not a decision on the ultimate merits of the executive order.  That is, the 9^th Circuit did not find conclusively that the executive order was unconstitutional.  The sole issue before the Court was whether the temporary restraining order (TRO) should remain in place while the case is pending for a decision on the merits before the U.S. District Court.

A TRO is meant solely to maintain the status quo while a case is pending.  That is, where there is an allegation that an action is illegal and that the action will cause irreparable harm, a TRO is meant to prevent one side from engaging in that act until the court can decide the merits of the case.  When a TRO is granted, a party can seek a stay from an appellate court.  That is, the party can go to a higher court, and argue that the TRO should not be enforced because the TRO will cause that party harm pending litigation.

With that perspective in mind, it is important to note that the 9^th Circuit itself recognized that its decision was only preliminary, and issued at a very early stage in the litigation, before a full record could be created on the merits.  Nonetheless, the 9^th Circuit’s decision did make some very important points.

First, the 9^th Circuit determined that the states of Washington and Minnesota had standing to establish the lawsuit.  U.S. federal courts do not issue advisory opinions.  That is, federal courts will not weigh in on whether an act by Congress or the President is constitutional in the abstract without there being a case or controversy.  To have a case or controversy, some party must suffer some harm because of the act.

In this instance, the Court recognized that state run colleges were branches of the state governments.  State run colleges have an interest in presenting a quality educational program, which includes foreign students, professors and lecturers.  Indeed, the state schools act as the petitioner in student visas.  Many of the students, professors and lecturers found themselves aggrieved by executive order, as they could not travel abroad and return, or they could not enter the United States to be part of the school’s program.  Therefore, the states, through state-run schools, presented a case or controversy.

Second, the 9^th Circuit ruled that the Executive Branch’s actions in the area of national security were not entirely unreviewable by the courts.  If an Executive action in the area of national security affected individual rights protected by the Constitution, that action could be reviewed by the courts.

Next, the Court addressed the elements necessary for granting a stay.  In doing so, the Court considered:  (1) the likelihood of success on the merits; (2) would the party suffer irreparable harm absent the stay; (3) whether a stay would cause substantial injury to other interested parties; and (4) where the public interest lies.  The Court found that the Federal Government’s showing on the first two factors was lacking.

When considering the likelihood of success on the merits, it is important to remember that decisions concerning a stay are issued at an early stage of the litigation.  The appellate court recognizes that the record has not been fully developed.  And thus it should not be taken as an authoritative sign that one party will ultimately prevail.

Nonetheless, the 9^th Circuit did find that the executive order deprived certain parties of the constitutional right to due process before an interest can be taken away from the government.  Due process requires, at a very minimum, a party with a protected interest must have the right to notice and an opportunity to be heard.  The executive order made no provisions for notice and opportunity.  Therefore, to the extent that a party had a protected interest, the Federal Government could not carry its burden that the state governments’ arguments would necessarily fail.

The Court noted that the right to due process is not limited to citizens, but rather applies to all persons within the United States (whether present legally or illegally), as well as to certain persons seeking re-entry into the United States.

Specifically, permanent residents have an interest in traveling and re-entering the United States.  Likewise, those who have been issued non-immigrant visas (these are visas allowing a person entry for a temporary time for example to work or go to school) have an interest in having that visa honored and being permitted entry into the United States.  Before infringing on those interests, permanent residents and visa holders must be given notice of the Government’s intent and an opportunity to be heard.

In this regard, the Court found that statements made by White House counsel to the effect that the executive order would not affect permanent residents was not sufficient.  Interpretations by White House counsel are not authoritatively binding.

The Court declined to narrow the impact of the TRO, either in terms of who the TRO covered or the fact that the TRO was national in scope.  The Court stated that the Federal Government had not offered an alternative set of people that the TRO would cover that would include all persons with a protected interest.  Additionally, uniformity of enforcement with respect to immigration issues was desirable on a national level.

Concerning the argument that the executive order infringed on religious rights, the 9^th Circuit merely stated that it was too early in the litigation to make such a determination.

Finally, with respect to the balancing of hardships and the public interest, the Court found that while the Federal Government has an interest in combatting terrorism, the Government had not shown an immediate need to implement the order.  Specifically, there was no showing that any alien from one of the seven countries had perpetrated an attack against the United States. This was in contrast to the substantial injury that persons with protected interests would suffer if the travel restrictions remained in place. Regarding the discretionary waiver provisions of the executive order, the Federal Government offered no explanation as to how they would function.

There is much in this decision that is useful to the immigration law practitioner.  Specifically, the recognition of a protected interest in those who already hold permanent residency or visas to re-entry to the United States, and the requirement that such interests cannot be infringed upon without due process is helpful.  Likewise, the recognition that the Federal Government cannot shield its actions from judicial review merely by claiming it is a matter of national security is in line with prior Supreme Court precedent.

But it should be noted that the case is far from over.  Litigation over the merits, wherein both sides will better develop the factual record and their arguments, continues at the U.S. District Court level.  After that, there would still be an opportunity for an appeal to the 9^th Circuit and potentially the Supreme Court.  It may take a long time before the case is ultimately decided.

By:  William J. Kovatch, Jr.

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