Fifteen states are suing the Biden-Harris administration to prevent illegal aliens from being allowed to purchase tax-payer subsidized health insurance plans from the “Affordable Care Act” marketplace — often known as “Obamacare.”
Kansas Attorney General Kris Kobach filed the lawsuit in federal court on August 8, 2024.
“Illegal aliens shouldn’t get a free pass into our country,” Kobach said in a release. “They shouldn’t receive taxpayer benefits when they arrive, and the Biden-Harris administration shouldn’t get a free pass to violate federal law.”
The final plan, set to take effect November 1, would make more than 200,000 “Deferred Action for Childhood Arrival” (DACA) recipients eligible for taxpayer-subsidized health plans, including 4,350 DACA recipients in Kansas.
According to the complaint, the proposed regulation violates a federal law that prohibits giving public benefits to illegal aliens and violates the plain text of the Affordable Care Act, or Obamacare, itself.
“In the ACA, Congress limited eligibility to participate in a qualified health plan through a subsidized health exchange to citizens or nationals of the United States and individuals ‘lawfully present’ in the United States,” the complaint reads.
Indeed, as the complainant reads, Congress specifically defined “qualified aliens.”
“’Notwithstanding any other provision of law,’ and subject to certain explicit exceptions, ‘an alien who is not a qualified alien … is not eligible for any Federal public benefit.’ 8 U.S.C. § 1611(a). Congress defined a ‘qualified alien’ to include only lawful permanent residents, asylees, refugees, parolees granted parole for a period of at least one year, aliens granted withholding of removal under specifically identified subsections of the Immigration and Nationality Act (INA) (generally having to do with restrictions on removal to a country where the alien’s life or freedom would be threatened), and certain battered aliens.”
In fact, according to the complaint, in August 2012 — two years after the ACA was enacted and after DHS first implemented its DACA program — CMS amended its regulatory definition of “lawfully present” to expressly state that an alien granted deferred action under DHS’s DACA policy was not considered “lawfully present.”
CMS reaffirmed this in 2014 with further regulations that adopted the rule that DACA recipients were not “lawfully present.”
But in May of this year CMS promulgated the new rule redefining DACA recipients as “lawfully present,” prompting the lawsuit.
However, the DACA program requires “unlawful presence in the United States; DHS has merely deferred immigration enforcement action against DACA recipients based on its assertion of prosecutorial discretion,” the lawsuit reads.
The lawsuit also notes there are cost burdens to the states — and by extension to taxpayers — if DACA recipients are enrolled in ACA insurance.
“The vast majority of exchange enrollees are receiving a federal subsidy to lower their monthly premium,” the complaint reads. “In February 2023, 91% of marketplace enrollees were receiving PTCs [premium tax credits].”
In fact, Kansas had 102,303 enrollees in February 2022; of those, 92% received tax credits and 47% qualified for a cost sharing reduction. Similarly, 91% of the enrollees in North Dakota received tax credits, with 26% qualifying for a cost sharing reduction.
This all adds up to increased administrative costs and millions of dollars in additional expense to taxpayers.
The states are asking the court to at least delay the implementation of the new rule until it can be judicially reviewed and, preferably, to vacate the rule and enjoin the administration from implementing it.
Kobach is joined in the lawsuit by attorneys general from Alabama, Idaho, Indiana, Iowa, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, South Carolina, South Dakota, Tennessee, and Virginia.
