The Volokh Conspiracy

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DACA and ACA Come Full Circle

The Biden Administration "reconsiders" Obama Administration policy from 2012, expands ACA coverage to DACA recipients.


Flash back to September 2009. President Obama was advocating for his health care reform during a joint session of Congress. He sought to assure the American people that the Affordable Care Act would not provide coverage for illegal immigrants.

Obama: There are also those who claim that our reform efforts would insure illegal immigrants. This, too, is false. The reforms I'm proposing would not apply to those who are here illegally.

Representative Joe Wilson of South Carolina famously yelled out, "You lie."

Obama responded, "It's not true." The Center for American Progress offered a helpful fact-check, finding that "Every proposal on the table explicitly disqualifies illegal immigrants from receiving federal benefits."

President Obama also said that the ACA did not raise taxes.

Now flash forward to June 2012. In the span of two weeks, the Obama administration announced DACA and Chief Justice Roberts upheld the Affordable Care Act. That was a pretty impressive thirteen day run! So much for that no-tax promise. But, in keeping with his other promise, in August 2012, the Obama administration expressly excluded DACA recipients from the ACA, and CMS definition of "lawfully present." Though there were several challenges to DACA, none gained much steam.

Two years later, in November 2014, the Obama Administration announced DAPA. That executive action faced a serious legal challenge by the Texas Attorney General, and we saw one of the first important forum-shopped nationwide injunctions. Throughout the litigation, the Obama administration insisted that DAPA, and DACA, did not actually confer benefits on recipients. Rather, it was merely an exercise of "prosecutorial discretion." (Stop me if you've heard this before). Sure, DAPA, and DACA, would have granted "lawful presence" to these aliens, and thus allowed them to work. But that was all because of regulations from the Reagan administration. (Stop me if you've heard this before.) Lawyers for the executive branch insisted that DAPA, and DACA recipients would not be eligible for health insurance benefits under the Affordable Care Act. (Stop me if you've heard this before.)

Fast forward to the present. The Biden Administration has "reconsidered" the Obama policy from August 2012, and expanded ACA coverage to DACA recipients:

In previously excluding DACA recipients from the definition of "lawfully present," we had posited that other definitions of lawful presence should not be used as a touchstone for eligibility if the program in question was not established with the explicit objective of expanding access to health insurance affordability programs. However, given the broad aims of the ACA to increase access to health coverage, we now assess that this rationale for excluding certain noncitizen groups from such coverage was not mandated by the ACA, and it failed to best effectuate congressional intent in the ACA. Additionally, HHS previously reasoned that considering DACA recipients eligible for insurance affordability programs was inconsistent with the relief that the DACA policy afforded. However, on further review and consideration, it is clear that the DACA policy is intended to provide recipients with a degree of stability and assurance that would allow them to obtain education and lawful employment, including because recipients remain lower priorities for removal. Extending eligibility to these individuals is consistent with those goals. There also was no statutory mandate to distinguish between recipients of deferred action under the DACA policy and other deferred action recipients.

Now, DACA recipients will receive subsidies on an exchange established by the state (which also includes the federal exchange, thank you again John Roberts). You can read the 145-page rule. But none of it will matter. Chief Justice Roberts (thanks!) has already signaled that he is not willing to stop DACA because reliance, and we know the Chief will never let anyone lose health care coverage. Twelve years later, Obama and Biden will simply get away with it.

When all is said and done, President George W. Bush's decision to appoint Roberts to fill Chief Justice Rehnquist's seat will likely be Bush's most consequential decision–more important than anything he did after 9/11, in Iraq, or Afghanistan. All of those actions have faded into the rear-view mirror, but we are still stuck with the Chief. And it was a decision that Bush made under tight time constraints with (perhaps) the understanding that Harriet Miers would be the backup option.

In any event, who lied? DACA and ACA have come full circle.