Trump Order Mandating Deportation for Health Service Use: Not Legally Sufficient

A draft Trump administration executive order proposes a fear-provoking change that will scare immigrants away from necessary health care by threatening deportation and denial of status because of use of public health services.¹ It does so by rescinding the Immigration and Naturalization Service’s (INS’s), now the Department of Homeland Security’s, long-standing interpretation of immigration law that use of public health services does not subject an immigrant to deportation or denial of status.² In 1999, the INS thoroughly analyzed the law, and considered reports of acute difficulties with contagious disease control, and the provision of emergency and needed health care as a result of immigrants’ fears of deportation and status denial.² The rescission of this interpretation by the draft order threatens the public health and the effective functioning of health care institutions.

TWO IMMIGRATION LAWS

At issue is the interpretation of two immigration laws. The first statute provides that an immigrant is deportable if he becomes a “public charge” within five years of entry into the United States for causes that were present before that entry. The second law provides that a person who is “likely to become a public charge” is inadmissible to the country, and thereby will be denied a lawful status for which she is otherwise eligible.³ This law applies to noncitizens seeking entry into the United States and noncitizens living in the United States who apply for change in status including those applying for permanent residence through family or employment. Approximately one million individuals become permanent residents each year, almost two thirds through a close family relationship with a US citizen or permanent resident. More than half of those who became permanent residents were living in the United States before they applied for permanent residency.⁴

INTERPRETATION SINCE 1999

The interpretation in effect since 1999 states that use of public health benefits does not provide the basis for deportation or denial of legal immigration status as a “public charge.” The INS concluded that the immigration law term “public charge” means dependence on the government for total subsistence. The INS clarified that “public charge” does not include use of noncash benefits that provide supplementary support in the form of direct services, such as emergency medical assistance, health insurance, health services for the testing and treatment of symptoms of communicable diseases, nutrition programs, Medicaid, and the Children’s Health Insurance Program (CHIP). Therefore, use of public health services does not make an immigrant a “public charge.”²

By 1999, the INS had been contacted by many health care providers, state and local officials, and immigrant assistance organizations concerned about significant public health consequences across the country from immigrants’ fears. The reported consequences were particularly acute with respect to treatment of communicable diseases, children’s immunizations, basic nutrition programs, and the provision of emergency and other medical assistance. There was widespread fear from confusion about whether the receipt of health care services would be considered to constitute “public charge” and thereby subject immigrants to deportation from the United States, or denial of lawful immigration statuses for which they were otherwise eligible. The INS concluded that immigrants’ fear of obtaining necessary medical benefits was jeopardizing the general public, and undermining the government’s goal of increasing access to health care, as well as causing individuals considerable harm.²

EXECUTIVE ORDER MANDATES

The proposed executive order mandates a major change in the interpretation of “public charge” as the basis for deportation and status denial. The order mandates that the use of any public benefit based in any way on income or resources is grounds for deportation and denial of status.¹ Such public benefits could include immunization or contagious disease treatment afforded at lower cost for those with moderate incomes, care provided at local health clinics with sliding scale cost, subsidies for health insurance, Medicaid, CHIP, and veterans’ disability benefits, among others. This would re-establish the serious public health threats alleviated by the 1999 administrative interpretation.

Moreover, the proposed executive order would punish noncitizens for merely accessing the services for which they have been told they were legally eligible. Congress made the decision about which noncitizens are eligible for federal benefits including health care. For example, noncitizens are eligible for emergency Medicaid, and lawfully residing children and pregnant woman can be eligible for Medicaid and CHIP.⁵ In addition, states and localities provide noncitizens with access to various health care services on the basis of their income. An executive order that makes people deportable or inadmissible for receiving health benefits for which they are legally entitled conflicts with those federal, state, and local laws, undermining their purpose and goals. Such an order would also counter the ability of states to fulfill their responsibility to protect the public health and welfare, thereby encroaching on states’ sovereignty under the Tenth Amendment to the US Constitution.

UNDERUTILIZATION IS THE PROBLEM

The proposed executive order mandates the immediate rescission of the applicable guidance to immigration officials, amendment of the Department of State’s manual, and new regulations that require that “public charge” includes the use of any public service that in any way is based on a person’s finances.¹ It does not explain the basis for rejecting the legal analysis supporting the current administrative interpretation. It does not mention public health concerns underlying the longstanding administrative position. Instead, the proposed order states the purported justification that “households headed by aliens are much more likely than those headed by citizens to use Federal means-tested public benefits.”¹ But, a study by Ku and Bruen found that low-income immigrants have lower rates of use of means-tested public benefits than low-income citizens, and that, when used by immigrants, the cost of those services is lower.⁶

From a public health perspective, the problem is not overutilization, but underutilization of necessary health services by immigrants. What if an immigrant was afraid to seek treatment of a fever that was a symptom of Ebola, or an applicant for permanent residency was afraid to obtain measles, mumps, and rubella immunization for her children? The public’s health and an effective health care system is dependent on noncitizens and citizens expeditiously accessing services that prevent the spread of contagious diseases, and that provide effective control of chronic diseases, preventive health, and necessary medical and emergency care.

No one is immune from the public health consequences of restrictions on a particular population’s access to health services. For example, noncitizens are service workers in kitchens, restaurants, and hotels, including those carrying the Trump name. The health of these workers has an impact on the health of guests, other employees, and the public.

NOT LEGALLY SUFFICIENT

If the Trump administration proceeds with regulatory changes, an executive order is not legally sufficient. There must be a notice in the Federal Register with the opportunity for public comment and serious subsequent consideration of all comments.⁷ The comments of medical professionals and government officials concerned about public health were influential in shaping the current policy that use of public health services does not lead to deportation and denial of status. They would be important in preventing regulatory changes that threaten the health of immigrants, undermine health programs, and jeopardize the public health of all.