Nearly 18 months ago, I noted in these pages the “likelihood of a legal challenge” to a Biden administration proposal to make eligible for Obamacare subsidies certain illegal immigrants. That legal challenge just became a reality.
On Thursday, a series of Republican attorneys general, led by Kansas’ Kris Kobach, filed suit in federal court in North Dakota seeking to strike down this change. The rule, which the Biden administration finalized this spring, redefines the term “lawfully present” to make participants in the Deferred Action for Childhood Arrivals (DACA) program eligible for Exchange subsidies.
AGs Allege Violations of Federal Law
The complaint alleges that the final rule violates two provisions of federal law. First, the 1996 federal welfare reform law prohibited the receipt of taxpayer-funded benefits to non-qualified aliens “notwithstanding any other provision of law.” Because DACA recipients do not meet the definition of “qualified aliens,” the welfare law prohibits them from receiving benefits, irrespective of what Obamacare says.
The lawsuit also alleges that DACA recipients are ineligible for subsidies under the statutory definition included in Obamacare itself. The complaint notes that the Centers for Medicare and Medicaid Services’ (CMS) “determination that deferred action recipients are lawfully present is obviously a self-contradiction: it defines as ‘lawfully present’ the class of individuals whom [the Department of Homeland Security] is deferring removal action based on their unlawful presence” (emphasis original).
The suit cites both an 11th Circuit Court of Appeals ruling from 2019 that emphasizes that the DACA program “does not mean that
