Immigration Reform and the Individual Insurance Mandate for Immigrants

Last month, I wrote a short post on immigration reform and health reform that raised a serious yet largely neglected issue. Conservative backers of the Gang of Eight immigration reform legislation have been touting the fact that unauthorized immigrants granted provisional legal status will not be eligible for various means-tested benefits, including subsidized medical insurance under the Affordable Care Act. One problem with this provision, however, is that state and local governments will find themselves in a bind. The following is from a report from Richard Simon of the Los Angeles Times:

The National Conference of State Legislatures is urging Congress to allocate to local and state governments some of the fees paid by applicants for legalization. The legislation, however, calls for that money to be used to secure the border, a key element for Republican support.

The proposed bill also would bar most of those applicants from receiving subsidies to buy health insurance for 10 years. These subsidies, which are part of President Obama’s 2010 health law, will be available next year to millions of low- and moderate-income Americans and legal immigrants who do not get health benefits at work.

Many of the applicants for legalization also would be ineligible for other federal benefits for more than a decade. In contrast, legal immigrants are eligible for many federal benefits after five years in the country.

Immigrant rights advocates said that because applicants for legal status will pay taxes, they should be entitled to a safety net.

The counterargument is that immigrants who are offered provisional legal status can always choose to return to their native countries, and so they are free to decide if they consider this arrangement acceptable or not. Moreover, the basic premise is faulty: lawful citizens are entitled to a safety net even if they don’t pay taxes while foreign tourists who generate astronomical sums in sales tax revenue are not, so there is no necessary connection between the two. Access to safety net programs is associated with membership in the political community, and the point of provisional legal status, as I understand it, is that it represents a transitional period during which the U.S. government decides whether or not unauthorized immigrants ought to be granted membership. Leaving this normative question aside, provisional legal status creates complications:

Although the county provides emergency care to all, regardless of legal status, county officials say the legislation could significantly increase its costs for non-emergency care. They point to an estimate that up to 446,000 of such immigrants in the county have no health insurance.

Los Angeles County spends roughly $600 million a year on healthcare for immigrants in the country illegally, officials said.

Republican lawmakers have proposed a solution to this dilemma. Rep. Mario Diaz-Balart (R-FL) has called for an individual mandate for immigrants on provisional legal status, per David Nather of Politico

Members of a House immigration group are considering a rule that would force immigrants to buy their own health insurance while they wait for citizenship.

The Republicans and other conservatives say their rule wouldn’t be like Obamacare’s at all.

Their argument: It’s simply fair to ask immigrants to show they won’t be a drain on the system before getting full citizenship.

“We’re dealing with a very specific circumstance and a very specific group of folks,” said Rep. Mario Diaz-Balart (R-Fla.), a member of the House immigration group. “There are going to be requirements that are not required for everyone else.”

Americans are willing to allow illegal immigrants to stay in the country, but only “if they’re not a public charge,” Diaz-Balart said. “It’s individual responsibility for these folks to earn their ability to stay in the United States, to work in the United States, and to be legalized in the United States, and a big part of that has to be that they’re not a public charge.”

This idea seems reasonable enough. There are huge implementation questions, but it would greatly reduce the burden on state and local governments. There is, however, an obvious problem: large numbers of unauthorized immigrants are likely to be public charges, a fact that advocates of less-skilled immigration and a path to legalization tend to avoid confronting head on. Fortunately, the editors of Bloomberg View are very forthright on this subject:

Requiring immigrants to buy insurance — with limited access to employer-based coverage, and without access to federal subsidies – imposes a large burden on a population in which 32 percent of adults and 51 percent of children live in poverty. If we want these future citizens to contribute to their communities, saddling them with steep financial obligations probably isn’t the best start.

Instead, Congress should ease their access to the health-insurance market. At a minimum, that should include access to coverage for the estimated 1 million undocumented immigrants younger than 18, and enabling immigrants to purchase insurance on state exchanges with their own money — even if Congress unwisely blocks subsidies. If no subsidies are available, a mandate to carry insurance can’t be justified.

Giving 11 million undocumented immigrants a chance at legal status makes economic and ethical sense. Denying them the chance to get affordable health coverage in the meantime does not. [Emphasis added]

To be clear, the editors are talking about unauthorized immigrants. They ought to have written “requiring unauthorized immigrants granted provisional legal status to buy insurance,” both because this would have been more accurate and because it would have underscored the fact that we are describing individuals who have violated U.S. immigration laws. I agree that it is more appropriate to offer subsidized coverage to unauthorized immigrants who arrived in the U.S. under the age of 18. But again, the takeaway from Bloomberg View is that the unauthorized population is by and large very poor. The editors claim that a mandate is unjustified. Yet it flows naturally from the (sound) logic that provisional legal status should only be granted to individuals who are not likely to be public charges. That is, there is a reasonable case that unauthorized immigrants who have very low earning potential should not be granted provisional legal status. Or perhaps relatives, friends, and civil society organizations, like churches and secular charities, can step in to fill the breach, thus allowing advocates of granting a path to citizenship to unauthorized immigrants earning low (and in some small number of cases no) wages an opportunity to make an investment in their future. 

Even if the Gang of Eight immigration legislation passes in something like its current form, the Bloomberg View view is likely to gain momentum over time, as state and local governments and medical providers stand much to gain from the expansion of subsidies to this population. And a similar logic applies to SNAP benefits. A substantial share of the self-reported hunger problem in the U.S. flows from the poverty of the substantial share of the foreign-born population that is ineligible for SNAP benefits. The libertarian solution — let’s allow in large numbers of less-skilled workers but deny them subsidized medical coverage and SNAP benefits — might appeal to libertarians, but many other voters are troubled by the idea of sharing their neighborhoods with people who through no fault of their own don’t have the skills or the networks they need to afford what Americans would recognize as a dignified life. Perhaps this is a valuable object lesson in the truth about global income and wealth disparities, and middle-income Americans should suck it up and either accept that the desperately poor should be allowed to live among them and (in relative terms) suffer or that they must pay the taxes necessary to provide any poor person who chose to settle in the U.S. before the provisional legal status window closed (and one assumes that another provisional legal status window will open at some point in the future) with the basics of life in an affluent market economy. 

I’m basically reconciled to the fact that there will be a path to legalization for unauthorized immigrants who arrived in the U.S. as adults. But I wish we would think more rigorously about its implications. One issue that has scarcely been addressed, for example, is what happens to unauthorized immigrants who choose not to accept provisional legal status. Should this decision be met with some penalty? Some will argue that provisional legal status will prove so attractive relative to living without it that this question won’t even arise, though of course conservative advocates of a path to legalization claim that its requirements will be very demanding. If that is correct — if acquiring provisional legal status really isn’t a walk in the park — surely some unauthorized immigrants will decide that applying for it is not in their interest. 

Reihan Salam — Reihan Salam is executive editor of National Review and a National Review Institute policy fellow.

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