Many conservatives oppose comprehensive immigration reform because they don’t trust the Obama administration to implement border-security and enforcement measures in good faith. The White House has already shown a willingness to selectively enforce existing immigration law without congressional approval, and has repeatedly invoked executive authority to make changes to Obamacare.
Even Marco Rubio (R., Fla.), an architect of the Gang of Eight immigration bill, concedes that such conservative skeptics have “a valid point.”
“You have a government, and a White House, that has consistently decided to ignore the law, or how to apply it,” Rubio said on Fox News Sunday. ”Look at the health-care law. The law is on the books. They decide which parts of it to apply and which parts not to apply. They issue their own waivers without any congressional oversight.”
Rubio noted that Gang of Eight critics often ask what would prevent the administration, in the event that a comprehensive immigration reform bill is signed into law, from implementing the aspects of the law it likes (legalization), while ignoring aspects it doesn’t like (border security and enforcement)? “Quite frankly, I think it’s difficult to find a good answer to that,” he said — not exactly a ringing endorsement of the Gang of Eight bill.
In fact, Gang of Eight critics have been making this argument for months, noting the similarities between the Senate immigration bill and Obamacare, both of which give the administration considerable leeway in deciding how to implement the law.
A Bloomberg News article published on Monday — “Saving Obamacare Without Congress” — provides an illuminating example of how conservative fears could be realized if the Gang of Eight, or something like it, becomes law. Writing in regard to Obamacare, Authors Nicholas Bagley and Austin Frakt argue that the White House “has the legal flexibility” to delay the law’s individual mandate in light of the disastrous rollout of the online exchanges:
Nestled in the health-care law is a “hardship exemption.” It waives the penalty for anyone who “is determined by the Secretary of Health and Human Services under section 1311(d)(4)(H) to have suffered a hardship with respect to the capability to obtain coverage under a qualified health plan.” In turn, section 1311 requires exchanges to “grant a certification” for particular individuals attesting that “there is no affordable qualified health plan available through the Exchange.”
Putting the two provisions together, it could be a “hardship” if there’s “no affordable qualified health plan available through the Exchange.” That statutory language fits this case: if an exchange doesn’t work, then no plans are available through it. Health and Human Services Secretary Kathleen Sebelius has already issued hardship exemptions for discrete groups, including people who would have qualified for Medicaid but for their state’s decision not to expand the program. She could do the same for those who can’t access an exchange.
That doesn’t mean there aren’t wrinkles. Section 1311 seems to say an exchange must grant a certification before one can get a hardship exemption. The statute is a bit ambiguous on that point, but, in a rule implementing the hardship exemption, that’s how Sebelius appears to read it. After she decides what counts as a hardship, the exchanges are supposed to process applications from individuals claiming that hardship. Then, and only then, can you get a “certificate of exemption.”
The White House appears to agree with this assessment. Of course, the statutes are “ambiguous” and so much depends on how Secretary Sebelius decides to “read” them. This is also true of the Gang of Eight legislation in general, and specifically with respect to “hardship” exemptions.
The text of the bill contains 14 references to “hardship” waivers or exemptions from the law provisions, which may be granted at the secretary of Homeland Security’s “discretion.” It would give the DHS secretary the authority to waive some of the requirements that illegal immigrants must meet to qualify for legal status and, eventually, citizenship.
The prohibition against fraud and misrepresentation, for example, could be waived on account of “hardship” (as determined by the secretary), as could the employment and education requirements for illegal immigrants seeking permanent legal status. Furthermore, the bill stipulates that “no court shall have jurisdiction to review a decision or action” regarding the granting of such waivers, which may also be issued if the DHS secretary determines that it would be in the “public interest.”
With Obamacare implementation having proven to be a complete disaster and exposed the Obama administration’s willingness to selectively enforce complex legislation, GOP skeptics of the Gang of Eight are still looking for a “good answer” to the question of why they should trust the same administration to handle immigration reform any better.