A group of Republican-led states, headed by Kansas Attorney General Kris Kobach, have sued to block a new rule that allows Deferred Action for Childhood Arrival (DACA) recipients to access health insurance through the Affordable Care Act (ACA). It is yet another legal assault on Dreamers, while the fate of DACA itself hangs in the balance.
The ACA allows all people who are “lawfully present” to access health coverage and subsidies through HealthCare.gov and state-based marketplaces. But in 2012, shortly after the start of the DACA program, the Centers for Medicare & Medicaid Services (CMS) – the agency responsible for administering the ACA – issued a rule that made people with DACA ineligible for ACA benefits.
The Biden administration’s new rule – finalized in May 2024 – changes that. CMS now says that people with DACA are “lawfully present.” Therefore, DACA recipients will be eligible for ACA enrollment on November 1.
Kobach and his allies have asked a federal court in North Dakota to block the new regulation from going into effect. Kobach argues that DACA recipients cannot be “lawfully present” even though the federal government has granted them permission to live and work in the United States. He will likely argue that under the Supreme Court’s decision in Loper Bright, the court should not give any special deference to CMS’ interpretation of the ACA.
But it’s possible that the federal court may decide the states can’t bring their lawsuit at all. Kobach’s theory for why the states have standing to sue has two parts. Both are questionable: (1) that DACA recipients who would otherwise have left the United States will now stay because they are eligible for ACA coverage; and (2) having more residents with DACA harms the states.
The court might decide that there is no reason to think that DACA recipients – all of whom have necessarily lived in the United States for more than a decade, since they were children – would have left but for this new ACA eligibility.
The court might also decide that DACA recipients – longtime U.S. residents working essential jobs, owning homes, and raising children – far from causing any harm, have added tremendous value to the states where they reside.
Or the court might just decide that CMS has it right and that DACA recipients are “lawfully present” under the ACA.
If Kobach and his team win, however, the harm would be significant. A recent report prepared by the National Immigration Law Center shows that one out of five DACA recipients are not covered by any kind of health insurance or health care plan.
Even if the new rule is allowed to go into effect, people with DACA will still be ineligible for Medicaid and Children’s Health Insurance Program (CHIP).
In the meantime, the Fifth Circuit Courts of Appeals will be hearing oral argument the week of October 7, 2024, in a case that will likely determine the future of the DACA program. Thanks to a district court judge in Texas, the DACA program has been unable to accept new applications since July 2021.
Members of our communities with DACA have been remarkably resilient in the face of so much uncertainty. The ability to access affordable health care is an essential component to ensure that they can live, work, and support their families in the country that is their home. Unless the North Dakota court orders otherwise, people with DACA can access the ACA starting in November.
FILED UNDER: Healthcare