There’s just one little, teensy weensy problem with President Biden’s announcement that he will let “Dreamers” join the Affordable Care Act (ObamaCare) or Medicaid — it’s illegal. I know what you’re thinking: When has an action being illegal ever stopped Biden? And you’re right, it usually doesn’t. But while illegality won’t stop him, the U.S. Supreme Court almost certainly will.
The DREAM Act (hence, the name Dreamers) was first introduced in 2001, often with some bipartisan support. It would have granted permanent resident status to certain young illegal immigrants brought to the United States by their parents, and it could have created a path to U.S. citizenship.
Frustrated that he couldn’t get Congress to pass the latest version of the DREAM Act, President Obama announced the Deferred Action for Childhood Arrivals (DACA) program on June 15, 2012, which was, not coincidentally, only four months before the 2012 presidential election.
Obama’s executive order stated: “Effective immediately, the Department of Homeland Security is taking steps to lift the shadow of deportation from these young people. Over the next few months, eligible individuals who do not present a risk to national security or public safety will be able to request temporary relief from deportation proceedings and apply for work authorization.”
Obama stressed that the DACA program was “not a pathway to citizenship” for Dreamers. President Trump twice offered to move in that direction in exchange for Democrats funding his border wall. They refused.
Biden has also failed to pass Dreamer legislation, even though the House and Senate were both held by Democrats during Biden’s first two years. So, he’s decided to make DACA recipients eligible to enroll in ObamaCare and Medicaid. Both programs are heavily subsidized by taxpayers.
But notice that Biden is ignoring the clear language of the law in both programs, which exclude undocumented individuals.
Healthcare.gov (the ObamaCare website) says, “Undocumented immigrants aren’t eligible to buy Marketplace health coverage, or for premium tax credits and other savings on Marketplace plans. But they may apply for coverage on behalf of documented individuals.”
And the Centers for Medicare and Medicaid Services (CMS) is even more explicit: “Individuals granted deferred action under DHS guidance issued on June 15, 2012 are not eligible to purchase coverage through the Marketplace.”
The question of whether illegal immigrants would be eligible for ObamaCare was raised during debate, and the bill’s proponents strongly dismissed the possibility. It almost certainly wouldn’t have passed if they had been eligible. It barely passed as it was.
As for Medicaid and the Children’s Health Insurance Program (CHIP), while there are several caveats, undocumented immigrants are not eligible to enroll in either program.
How does Biden plan to skirt the law? The White House states, “The Department of Health and Human Services will shortly propose a rule amending the definition of ‘lawful presence,’ for purposes of Medicaid and Affordable Care Act coverage, to include DACA recipients.”
And there you have it. The Biden administration plans, without congressional approval, to change the definition of those who are considered lawfully present in the United States to include Dreamers. Both ObamaCare and Medicaid allow certain noncitizens who are “lawfully present,” such as green card holders, to participate. So, Biden will just claim that Dreamers are lawfully present.
One wonders why we go to the trouble of electing representatives if the president is going to do whatever he wants anyway.
Dreamers are the most sympathetic group of undocumented people hoping for citizenship. And a large majority of the public supports a pathway to citizenship for them. But Biden doesn’t get to defy the law just because Congress won’t change it. And that’s the issue.
This practice has become commonplace since Obama’s presidency.
Democrats want to pass a bill or change a law they don’t like. But they don’t have the votes. So, the president signs an executive order to do it anyway, even though Democrats know that doing so is illegal. (Recall that Obama said exactly that about the Dreamers before he issued his DACA executive order, and there was Biden’s repeated effort to extend his eviction moratorium.)
Democrats then take credit for doing something “courageous” and task progressives to publicly assert that what the president has done is clearly legal and appropriate.
If a lawsuit is filed to stop the president’s plan, as it almost surely will be, Democrats will claim it’s just another example of Republicans trying to hurt immigrants and the poor. If the Supreme Court strikes down the action, which is almost certain, Biden and other progressives can blame it on the white supremist justices and assert that’s why they need to pack the court with more progressives.
SCOTUS may save us from Biden’s overreaches, but who will save us from the progressive onslaught?
Merrill Matthews is a resident scholar with the Institute for Policy Innovation in Dallas, Texas. Follow him on Twitter @MerrillMatthews.