According to its proponents, the passage of the Affordable Care Act (ACA)1 “enshrined . . . the core principle that everybody should have some basic security when it comes to their health care.”2 However, the ACA does not ensure healthcare coverage for many groups. Indeed, projections indicate that 27 million uninsured Americans will remain even after enactment of all of the ACA’s provisions.3 Most sizeable among these groups are certain classes of noncitizens, including but not limited to undocumented immigrants.
Why does the statutory reality differ from the lofty, expansive language used by the ACA’s proponents in Congress and the White House, especially with respect to noncitizens? A parsing of the ACA’s legislative history, particularly the congressional floor debates over the bill, reveals two possible answers. Both answers are instructive to advocates hoping to extend access to health insurance coverage to all noncitizen groups. First, at least some legislators implicitly qualify the notion of healthcare for all with the requirement that beneficiaries of the law must pay taxes Second, at least some legislators seem to exclude certain noncitizen groups from their definition of “Americans,” which is used interchangeably with the terms “everybody” or “all” throughout the legislative history of the ACA.
Part I of this Essay examines the ACA’s statutory and accompanying regulatory language, identifying three noncitizen groups that receive reduced or no protections under the law: (1) recently arrived legal immigrants; (2) noncitizens present under temporary nonimmigrant visas, known as nonimmigrants; and (3) undocumented immigrants. Part II explores the legislative history of the ACA and the idealistic statements repeatedly made by legislators about the idea of healthcare for all. It identifies similar statements made by proponents of previous versions of healthcare reform during prior presidential administrations, suggesting a historical pattern of disconnect.
Part III concludes that implicit normative and economic arguments legislators made against the expansion of healthcare coverage to these excluded groups, particularly the undocumented, offer a partial explanation for the gap between the rhetoric and reality of the ACA. It also critiques these arguments and offers suggestions to advocates for expanded healthcare coverage in overcoming these implicit arguments against true healthcare for all.
I. The Affordable Care Act and Exclusion of Certain Noncitizen Groups
This Part distills a general outline of the ACA’s contours before analyzing how recent legal immigrants, legal nonimmigrants, and undocumented immigrants are not protected under the new legislation. The ACA is both voluminous and complex, clocking in at nearly 1000 pages and containing various provisions that will not go into effect until later this decade.4 Multiple constitutional and political challenges to the ACA, the most significant of which the U.S. Supreme Court resolved only in June of 2012,5 slowed down the states’ implementation of the bill.6 Further, the U.S. Department of Health and Human Services is still promulgating regulations in accordance with the statute’s decrees more than two years after the bill’s passage.7 All of this uncertainty over the ACA makes it difficult to analyze the ACA with a high degree of specificity. However, even a general summary of the law demonstrates the notable absence of the three groups identified above from all of the ACA benefits.
A. General Outline of the ACA
A brief political history of the ACA provides context for the mechanics of the ACA. President Obama campaigned on the promise of healthcare reform and made the issue a legislative priority when he assumed office in 2009.8 The ACA was first introduced in the U.S. House of Representatives in October of 20099 and signed into law in March of 2010.10 The ACA passed both chambers of Congress with largely Democratic support; at the time, Democrats controlled both the House and the Senate.11
The ACA contains multiple components aimed at expanding healthcare coverage for Americans. The primary components are: (1) the insurance mandate, also known as the individual mandate; (2) state-run individual health exchanges; (3) federally run high risk pools; (4) premium credits and cost-sharing subsidies; and (5) expanded Medicaid coverage for families earning up to 133 percent of the federal poverty line (FPL).12
A broad overview of these components will suffice for the purposes of this Essay. The individual mandate requires all citizens to purchase health insurance or pay a penalty.13 Individual health exchanges are intended to be state-run marketplaces in which individuals may select private, federally subsidized health insurance plans.14 High-risk pools are temporary federal health exchanges that will cease in 2014 when states begin running their own health exchanges.15 Premium credits and cost-sharing subsidies allow individuals making up to 400 percent of the FPL to receive either (1) tax credits for their insurance premiums if they purchase healthcare plans outside of the health exchanges or (2) federal subsidies if they purchase plans within the exchanges.16 These credits and subsidies are calculated according to a sliding scale.17 Finally, the ACA expanded Medicaid from a program that only served certain groups such as poor children, parents, and pregnant women to one that serves all eligible individuals who earn up to 133 percent of the FPL.18 It did so by threatening to withhold federal Medicaid payments to states that refused to expand their Medicaid coverage according to the ACA.19
Critics of the ACA challenged its constitutionality, and the U.S. Supreme Court ruled in June 2012 that the ACA’s individual mandate was lawful under Congress’s taxing and spending power.20 The Court, however viewed Congress’s threat to withhold Medicaid funding from states that failed to expand the program to eligible individuals making up to 133 percent of the FPL as coercive.21 The Court struck down the ACA’s Medicaid expansion enforcement mechanism, holding that such coercive action exceeded the scope of Congress’s spending powers.22
B. Reduced Protections for Recently Arrived Legal Immigrants
One aspect of our healthcare system the ACA does not change was the noncitizen eligibility requirements for the Medicaid program.23 Under President Clinton’s 1996 welfare reform law, most legal permanent residents (LPRs) must wait for five years after they establish residence until they are eligible to receive Medicaid benefits.24 Refugees and asylees must generally wait seven years to become eligible.25 Some states provide limited exceptions for pregnant women and children.26 While recently arrived LPRs, nonimmigrants, and undocumented immigrants may avail themselves of the federal emergency Medicaid program for immediate and severe medical emergencies, they are unable to access preventative and nonemergency care under this program.27
Because the ACA left the five- and seven-year bars to Medicaid unchanged and because all lawfully residing U.S. residents are subject to the individual mandate,28 low-income and recently arrived LPRs must search for health insurance on the private market or through health exchanges, regardless of whether their states expand Medicaid coverage under the ACA. While these immigrants may be eligible for premium tax credits and cost-sharing subsidies, those making less than 133 percent of the FPL bear significantly higher financial burdens in complying with the individual mandate than U.S. citizens and LPRs who are eligible to receive Medicaid. This is especially unfortunate given that newly arrived LPRs “are statistically the least likely to have employer provided coverageand tend to earn less than citizens or immigrants [who] have been in the country for longer periods of time.”29
Moreover, the ACA reduces federal funding for immigration status–blind emergency medical treatment, which negatively impacts the ability of non-Medicaid eligible legal permanent residents to access emergency healthcare particularly in geographic areas with high concentrations of recently arrived LPRs, nonimmigrants, and undocumented immigrants.30 The cuts also burden emergency rooms (ERs), which are required to treat all patients regardless of immigration status and ability to pay, because poor individuals without access to Medicaid must use ERs for healthcare as a last resort.31
C. Reduced Protections for Legal Nonimmigrants
The ACA also fails to offer full protections to the nearly two million nonimmigrant residents in the United States.32 Nonimmigrants, who are present in the country on temporary visas and include university students, skilled and unskilled laborers recruited by U.S. employers, and family members of U.S. citizens or lawful permanent residents,33 are often a forgotten group.34 Yet many of these individuals lawfully reside in this country for up to several years. Many of them undoubtedly require access to healthcare at some point during their time here.
The ACA is perhaps at its murkiest when attempting to determine the extent to which nonimmigrants benefit from the legislation. Moreover, very few policy analysts have elucidated the ACA’s impact on nonimmigrants, further exhibiting how this group is often ignored. It is still unclear, for example, which portions of this group are subject to the insurance mandate.35 On the other hand, nonimmigrants who have not overstayed their visas are considered “lawfully present,” which is a requirement for participation in high-risk pools and health exchanges.36
What is clear, however, is that the ACA does not change federal Medicaid access requirements for nonimmigrants.37 Under the 1996 welfare reform law, nearly all nonimmigrants are ineligible for Medicaid coverage, among other federal benefits.38 The ACA’s cuts to federal funding for emergency medical treatment irrespective of immigration status will presumably negatively affect nonimmigrants, and emergency rooms, particularly if this group is not eligible for premium tax credits, participation in health exchanges, and cost-sharing subsidies available to recently arrived LPRs.39
D. Reduced Protections for Undocumented Immigrants
Finally, the estimated eleven million undocumented immigrants in this country40 are specifically excluded from virtually all of the ACA’s protections As one commentator summarizes:
Congress took pains to clarify that health reform will not help those who are not lawfully present. . . . [T]he Affordable Care Act explicitly prohibits those who are not “lawfully present” from (1) accessing temporary high-risk pools for those with preexisting conditions; (2) enrolling in special state-created plans for low-income individuals not eligible for Medicaid; (3) enrolling in new health care cooperatives; (4) receiving cost-sharing subsidies or premium tax credits to purchase health insurance; and (5) purchasing policies in the newly created exchanges, even without the benefit of government subsidies or credits.41
No other group’s exclusion from the ACA’s protections is so complete.42 The law does not even spare those granted deferred action under President Obama’s high-profile directive this spring to protect many immigrants who arrived in the United States without papers as minors from being denied access to healthcare.43 Undocumented immigrants will make up approximately one-third of the estimated 27 million Americans who will remain uninsured after the ACA takes full effect.44
While the ACA did not make lawful immigration status a requirement to access Emergency Medicaid, the ACA’s cuts in funding for that program45 impact undocumented immigrants more than the other groups. Unlike recently arrived LPRs and nonimmigrants, undocumented immigrants are not eligible for any of the ACA’s alternative means of obtaining health insurance and are thus more dependent on emergency healthcare. Further, a majority of the approximately $5 billion per year in uncompensated emergency healthcare costs are mostly generated by undocumented immigrants. This number and proportion is likely to rise as Emergency Medicaid funding decreases, as the undocumented immigrant population ages, and as the majority of the undocumented remain without access to health insurance.46
II. Legislative History of and Rhetoric Surrounding the Affordable Care Act
The ACA deliberately refrained from extending full access to healthcare for recently arrived LPRs and nonimmigrants. The ACA also excluded undocumented immigrants from all, or virtually all, of its protections. Yet, as this Part demonstrates, the ACA’s statutory realities appear to belie the expansive language used by the ACA’s advocates, who repeatedly defended the idea of healthcare access to “everyone” or “all Americans” in the sponsor statements, floor debates, and signing statements associated with the bill.47 This trend is a continuation of history, as policymakers who pushed previous iterations of healthcare reform during previous presidential administrations also employed universal language in publicizing their efforts. Yet policymakers did not include groups like the undocumented in their policy proposals. The result is an apparent, longstanding tension between the ideas of healthcare for all and healthcare for noncitizens.
A. The Legislative History of the ACA
The House of Representatives took up a version of what would ultimately become the ACA in October of 2009.48 House Speaker Nancy Pelosi presented the bill to the public along with eight other Congressmen, including House Majority Leader Steny Hoyer and the bill’s principal sponsor, John Dingell.49 All of the Congressmen who spoke at the presentation interchangeably stated that the bill embodied the idea that “all Americans,” “all,” or “everyone” deserved access to healthcare.50 Moreover, Representative Dingell made mention of the 47 million uninsured Americans at the time, a number that includes the undocumented.51
In floor debates over the bill, the conflict between healthcare for all and healthcare for noncitizens becomes apparent. Proponents of the bill were adamant: The legislation would extend healthcare coverage to nearly all “Americans”52 or “everyone,”53 filling an important hole in the nation’s social safety net. One of the chief arguments made by the bill’s opponents, however, was that undocumented immigrants might benefit from the bill.54 The bill’s supporters emphatically responded, and the statutory language of the ACA corroborates, that no additional protections were extended to the undocumented under the bill.55