Biden to Expand Taxpayer-Funded Health Care Access to Illegal Aliens
FAIR Take | April 2023
On April 13, the Biden Administration announced that participants in the Deferred Action for Childhood Arrivals (DACA) program will soon be able to apply for health care coverage under the Affordable Care Act and some Medicaid programs. This announcement comes on the heels of FAIR’s release of the 2023 cost study of illegal immigration, which found illegal immigration already has a net cost to taxpayers of about $151 billion per year. This move by the Biden Administration is not only counter to the immigration laws and an affront to Americans, but it will also exacerbate the cost to taxpayers.
The 2010 Affordable Care Act (also known as Obamacare) rendered those with “lawful presence” eligible for benefits. The ACA implementing regulation defined “lawful presence” by incorporating the definition used in a 2010 guidance letter from the Center for Medicare and Medicaid Services (CMS) regarding the eligibility of certain Medicaid programs.
The CMS guidance letter provided that a wide range of aliens are deemed to have lawful presence, including, in some cases, illegal aliens. These include green card holders, asylees, refugees, parolees (with exceptions), aliens granted withholding of removal, aliens on valid nonimmigrant visas who had not violated their terms of status, aliens with Temporary Protected Status (TPS) or TPS applicants granted work authorization, and aliens with pending applications for Special Immigrant Juvenile (SIJ) status, among others. The 2010 regulation and CMS letter also included “aliens currently in deferred action status,” which would include DACA recipients. At the time, however, DACA did not exist.
DACA was created by a memorandum from then-Secretary of Homeland Security Janet Napolitano on June 15, 2012. At the time, the current Secretary, Alejandro Mayorkas, was the Director of U.S. Citizenship and Immigration Services (USCIS), the agency that manages the program. The DACA memo provided for exercising prosecutorial discretion when considering enforcement actions against aliens who:
- Not above the age of thirty and entered the U.S. under the age of 16;
- Had no lawful immigration status on June 15, 2012, and at the time of application;
- Resided continuously in the U.S. since at least June 15, 2007, and were present in the U.S. on June 15, 2012;
- On June 15, 2012, were either in school, had graduated high school, gotten a GED, or had been honorably discharged from the military; and
- Had not been convicted of various crimes, or otherwise pose a threat to national security or safety
Almost immediately, it became clear that illegal aliens granted DACA would become “aliens currently in deferred action status,” and thus eligible for ACA exchanges and, in some cases, Medicaid. On August 30, 2012, however, the Obama Administration published a brief amendment to earlier implementing regulations clarifying that DACA recipients were not, in fact, eligible for ACA exchanges. Below is the language published in the Federal Register:
This amendment, and the other definitions in the referenced paragraphs 1-7, are also used in the definition of “lawfully residing” for certain Medicaid programs.
President Biden’s announcement on April 13, 2023, indicates that the Department of Health and Human Services (HHS) will soon propose a rule to amend these regulations, remove the DACA exception, and therefore render DACA recipients “lawfully present” for purposes of obtaining benefits under the ACA and certain Medicaid programs.
Under the original definition of lawful presence, FAIR estimated that between 500,000 and 1 million aliens who entered the U.S. illegally nevertheless were eligible for benefits under the ACA and certain Medicaid programs. Biden’s actions this week will add another 580,000 DACA recipients (calculated as of 2022) to this total.
DACA is still being challenged in the court system. This litigation has led USCIS to stop processing new DACA applications pending a final outcome. The DACA litigation will likely ultimately reach the Supreme Court.
FAIR will be watching for issuance of the full HHS rule later this month, and will use every opportunity to let the Biden Administration know how they are again failing to protect hardworking American taxpayers.