Three Republican attorneys general argued in a federal courtroom in North Dakota on Tuesday that a federal rule allowing some undocumented immigrants to receive subsidized health insurance should be stopped – or at the very least, delayed.
The attorneys general for Kansas, North Dakota and South Dakota led the hearing on behalf of 19 states challenging the rule, which would allow undocumented immigrants protected under the Deferred Action for Childhood Arrivals program to access health care plans under the Affordable Care Act.
The immigration program, also known as DACA, temporarily delays the deportation of people who immigrated to the United States without documentation when they were children.
Health benefits under the Affordable Care Act are limited to U.S. citizens, nationals or immigrants “lawfully present” in the country.
Previously, DACA recipients were not explicitly defined as meeting this definition in administrative regulations implementing the law.
North Dakota joins Kansas-led suit challenging health insurance for DACA recipients
The federal agency this year adopted a rule that clarifies, among other things, that “lawfully present” immigrants does include participants in DACA. The rule also extends the definition to include undocumented immigrants with certain employment authorization documents.
In August, a group of state governments filed suit over the rule, arguing the Department of Health and Human Services has no statutory basis for changing the definition and that the new rule will force states to spend more money on undocumented immigrants and their families.
The states claim that providing the benefit incentivizes DACA recipients to remain in the United States longer than they otherwise would have, “and thereby causes plaintiff states to expend additional education, healthcare, law enforcement, public assistance, and other limited resources,” according to their complaint.
The United States already has a law defining which undocumented immigrants can qualify for limited federal benefits, and DACA recipients are not among them, the complaint states.
The group of states has asked U.S. District Court Judge Daniel Traynor to either halt enforcement of the rule or push back its effective date. They want Traynor to take action before Nov. 1, when Affordable Care Act open enrollment begins.
Kansas Attorney General Kris Kobach said during the hearing that the rule is an attempt by the federal government to redefine national immigration policy “through regulatory fiat.”
If the rule is left in place, an estimated 200,000 people would become eligible for federally subsidized health insurance through the Affordable Care Act, the plaintiffs claim in court filings.
Three DACA recipients and CASA Inc., an immigration advocacy group, have filed to intervene in the case and also argue the lawsuit should be moved to federal court in the District of Columbia. Traynor has not ruled on those motions.
“DACA recipients are contributors to their communities,” Matthew Rozen, an attorney representing the group, said in a statement to the North Dakota Monitor. “They pay taxes, serve in the military, build families, attend school, and thrive in workplaces.”
According to data from the U.S. Citizenship and Immigration Service, there were approximately 130 DACA recipients in North Dakota as of June 30, 2024.
Christopher Eiswerth, an attorney representing the U.S. government in the lawsuit, argued during the hearing that Congress did intend for DACA recipients to be eligible for Affordable Care Act insurance.
The agency issued the rule because it “determined it should treat all deferred action recipients equally,” Eiswerth said.
The U.S. Department of Health and Human Services has also said that the rule change “aligns with the goals” of the Affordable Care Act because it would reduce the number of uninsured people in the United States.
The plaintiff states have not provided sufficient evidence that the rule would actually increase costs for them, Eiswerth argued.
Traynor noted the language of the rule acknowledges the change would impose a financial burden on certain states.
Some states — including a portion participating in the lawsuit — run their own Affordable Care Act insurance marketplaces, as opposed to using the federal platform. North Dakota is not one of them.
Traynor said the case might be better suited for a district court in a state with its own insurance marketplace. He said those states are more likely to suffer direct harm under the rule, since their taxpayers could be on the hook to subsidize health care for DACA recipients.
Traynor said if the plaintiffs want the case to remain in his court, he would need to see more data demonstrating that North Dakota’s government would be financially impacted by the rule.
North Dakota Attorney General Drew Wrigley said his office would prepare data on how the rule would correlate to increased public expenses for the North Dakota state government in areas including education and public safety costs.
Kobach said it would be easier to crunch the data if the U.S. government would provide the plaintiffs with the names of DACA recipients. Eiswerth replied that information is protected from release.
The 19 states bringing the case are Kansas, North Dakota, Alabama, Arkansas, Florida, Idaho, Indiana, Iowa, Kentucky, Missouri, Montana, Nebraska, New Hampshire, Ohio, South Carolina, South Dakota, Tennessee, Texas and Virginia.
Kansas is leading the case. Kobach after Tuesday’s hearing said that one of the reasons the lawsuit was filed in North Dakota is because its federal courts are less backlogged than other districts.
Traynor said he would take the matter under advisement.
A federal judge in Texas last year struck down DACA, finding that the U.S. Department of Homeland Security exceeded its authority in creating the program. Under that judge’s order, individuals granted DACA status before July 16, 2021 can remain in the program, though no new people can apply for it. The court’s decision is still being appealed.
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