By Micheal E. Hill
Friday, November 6, 2009 - 8:30 am

The Congressional Hispanic Caucus (CHC) yesterday voiced its united and strenuous opposition to a proposal by President Barack Obama to bar illegal immigrants from purchasing health insurance with their own funds.  The CHC addressed the issue in two separate forums yesterday.  The first was at a meeting between the CHC and House Democratic Congressional Campaign Committee (DCCC) Chairman Chris Van Hollen (D-MD), who has been a leading advocate of including the proposal in the House health care reform bill.  The second was at a meeting between four senior members of the CHC and President Obama.  Speaker of the House Nancy Pelosi (D-CA) has scheduled a 10:00 am meeting today with the Congressional Hispanic Caucus to discuss the issue of the treatment of illegal immigrants in the health care reform bill.  Sometime after that meeting, she is expected to announce a decision on whether she will seek to modify the House health care reform bill so that it comports with the President's proposal.  Late last night, sources on Capitol Hill indicated that she already has decided against inserting the controverisal provision into the bill.  However, there was no confirmation of that at press time.

President Obama had been scheduled to address the entire House Democratic Caucus on the overall bill today.  However, late last night, that meeting was postponed and rescheduled for Saturday.

At stake in today's House Democratic Leadership decision is the question of whether millions of undocumented aliens and their U.S. citizen or legal permanent resident children and spouses will be able to use their own funds to purchase private, unsubsidized health insurance products that are listed on government-run health insurance exchanges.  The Senate Finance Committee-approved version of the health care reform bill includes a provision that would implement the Obama proposal.  However, the bill that was introduced in the House does not contain such a provision.  The President and his Administration have been pressing the House Democratic Leadership to include the proposal in the House bill.  But the CHC has ferociously opposed it.

Some CHC members are angry with the President, whose Administration sparked the debate on whether illegal aliens should be barred from purchasing health insurance with their own funds.  They fear that enactment of the proposal could well cause millions of illegal aliens and their U.S. citizen and/or legal permanent resident family members to lose health insurance coverage that they currently have. They argue that it is bad policy both on moral grounds, as well as on financial grounds.  They point out that if illegal immigrants are barred from purchasing health insurance with their own funds, they will have to rely on emergency Medicaid, which would wind up being financed by American taxpayers.


Temporary Victories?
The CHC scored a major victory on Thursday, October 29, 2009, when House Speaker Nancy Pelosi (D-CA) withstood pressure from the Obama Administration, as well as pressure from Representative Van Hollen, and declined to include the Obama proposal in the House health care reform bill.  The CHC scored another victory on Tuesday, November 3, 2009, when the Speaker declined to use the "manager's amendment" to the health care reform bill to insert the Obama proposal into the health care reform measure. 

In rejecting pleas that she include the Obama proposal in the House health care reform bill, the Speaker -- for the moment, at least -- dodged threats from several CHC Members, who warned that they would oppose bringing the Health Care reform bill before the full House of Representatives if the Obama proposal was included in it.  The House Democratic Leadership's whip count on the vote is so close that, were those threats carried out, the Leadership could well find it impossible to pass the health care reform bill, a measure that has become the Democratic party's and President Obama's top legislative and political priority.  However, throughout most of the last week, there has seemed to be a significant danger that the Caucus' two victories would turn out to be short-lived.  DCCC Chairman Van Hollen, who twice now has unsuccessfully pressed the Speaker to insert the controversial idea into the House health care reform bill, has continued to press for including it in the measure that the full House of Representatives could vote on as soon as Saturday.  And there were increasing signs over the past week that Speaker has seriously considered reversing course and including the bar in the House health care reform bill.


Meeting with the President
President Obama met with four members of the Congressional Hispanic Caucus late in the afternoon on Thursday, November 5, 2009.  The Associated Press quoted Congressional Hispanic Caucus Chair Representative Nydia Velazquez (D-NY), one of the four CHC Members who participated in the meeting, as saying, "[h]e listened to us. We listened to him." Representative Velazquez went on to say that the Members at the meeting "made it very clear that 20 votes in the Hispanic caucus" depend on the language in the House bill. "I think that he got our message," Velazquez added.

Earlier in the day, CHC Vice-Chairman Charlie Gonzalez (D-TX) was quoted as saying of the Obama proposal, "I am concerned about the manner in which the exchange has been characterized, and I understand the politics of it, but it is very bad policy.”  And CHC Immigration Task Force Chairman Luis Gutierrez (D-IL) was quoted as calling the President's approach on the issue "nonsense" and contended that it would ultimately cost taxpayers more money when illegal immigrants end up in emergency rooms. He went on to say that President Obama "calls [undocumented aliens] illegal and criminalizes and dehumanizes them."


Parliamentary Situation
The House Committee on Rules is scheduled to meet at 2:00 pm EST on Friday, November 6, 2009, to recommned a "rule" governing the parliamentary situation under which the full House of Representatives takes up H.R. 3962.  The Committee is likely to recommend that the full House of Representatives take up H.R. 3962 under a procedure that bars all but two floor amendments to the measure.  The first will likely be a "manager's amendment" to the bill that would make a number of changes reflecting compromises that the House Democratic Leadership believes it needs to make in order to win passage of the measure.  The second is expected to be a Republican Substitute for the bill.  The procedure also will likely provide Republicans with an opportunity to offer a motion to recommit the bill just prior to the vote on final passage. 

Should the Democratic Leadership decide to modify the bill to include a bar on illegal immigrants' purchase of health insurance with their own funds, the device that they likely would use is to do this is to insert the new provision into the bill upon adoption of the rule, a procedure that is known as a "self-activating rule."


Summary of Immigration- and Refugee-Related Provisions 
As introduced, H.R. 3962 is a combination of compromises brokered by the House Democratic Leadership and provisions that were contained in bills produced by three House Committees:  the House Committee on Ways and Means, House Committee on Energy and Commerce, and House Committee on Education and Labor.

The following summarizes the treatment of noncitizens under the measure  --

• Health Insurance Mandate.  H.R. 3962 would require all residents (with the exception of some nonimmigrants) to maintain health insurance plans and subject those who do not adhere to the mandate to tax penalties.  Even undocumented aliens would be subject to the mandate under H.R. 3962.

• Affordability Credits.  H.R. 3962 would provide "affordability credits" to persons who are not poor enough to qualify for Medicaid but who cannot afford to purchase health insurance on their own.  Legal immigrants would be eligible for affordability tax credits, but under section 347 of the bill, aliens who are not lawfully present and nonimmigrants would not be eligible for such credits.  The House bill contains several exceptions to the bar on nonimmigrant eligibility for affordability tax credits.  T, U, V and K Visa holders would be eligible for affordability credits, despite the fact that they are nonimmigrants.
  

•  Citizenship and Immigration Status Verification.  Section 341(b)(4) of H.R. 3962 would establish a verification regime, based on the regime in the recently enacted Children's Health Insurance Program Reauthorization Act (CHIPRA), for persons who seek to access affordability credits.  All persons, including United States citizens, would be required to undergo verification of their citizenship or immigration status.

Under the procedure, a person seeking affordability credits would make a declaration of United States citizenship or of lawful presence.  Persons declaring that they are citizens would undergo one verification process.  Persons claiming to be lawfully present in the United States would undergo a different process.

• Health Insurance Exchanges.  H.R. 3962 would permit all immigrants to participate in the state health insurance exchanges created by the bill, including those not lawfully present.

• Five-Year Waiting Period for Medicaid and Medicare.  H.R. 3962 would maintain current law regarding the eligibility of aliens for Medicaid, Medicare, and the Children's Health Insurance Program (CHIP) unchanged.

• Reaffirmation of Bar on Providing Medicaid or CHIP Benefits to Illegal Immigrants.  Section 1787 of H.R. 3962 would provide that nothing in Title VII of the bill shall change current prohibitions against Federal Medicaid and CHIP payments under titles XIX and XXI of the Social Security Act on behalf of individuals who are not lawfully present in the United States.
  

  
  

Seeds of an Explosion 
The House Democratic Leadership has defied both President Barack Obama and the Senate Committee on Finance by declining to bar undocumented aliens from purchasing health insurance in the health insurance exchanges that would be created under the measure.  While the bill, as introduced, does not contain a bar on undocumented aliens' access to health insurance exchanges, Hill insiders warn, that  the manager's amendment could impose a bar on illegal immigrants' access to the health insurance exchanges.

The issue of the eligibility of illegal immigrants for benefits and services under the various health insurance reform bills exploded into the public consciousness during the period immediately following a September 10, 2009, address by President Obama before a joint meeting of Congress.

Representative Joe Wilson (R-SC) interrupted the President during his address, calling him a liar for asserting that his House health care reform plan would not provide benefits to illegal aliens.  The firestorm that erupted as a result of Representative Wilson's outburst began a national conversation on the subject of immigrant eligibility for health insurance benefits and services that left pro-immigrant advocates deeply troubled.  Participants in that conversation included White House Press Secretary Robert Gibbs, Senate Finance Committee Chairman Max Baucus (D-MT), and Senator Kent Conrad (D-ND).  And that conversation culminated at week's end with a number of assertions by White House Press Secretary Robert Gibbs, Secretary of Health and Human Services Kathleen Sebelius, Chairman Baucus, and others.

One of the great ironies of this year's health insurance reform debate is that it could well leave immigrants worse off than they are under current law.  Barring illegal immigrants from participating in the proposed health insurance exchanges, as the Senate bill would do, could render nearly 5 million persons who currently possess health insurance unable to obtain coverage.  And overly burdensome verification regimes could render many legal immigrants who have unlawfully present family members in danger of losing coverage for their family members.

Views of the Pro-Immigrant Advocacy Community 
The pro-immigrant advocacy community would like to see a number of changes to H.R. 3962 in order to make health insurance more accessible to immigrants. However, the community has become resigned to the fact that the bill, itself, will not be amendable on the House floor.  

Chief among the pro-immigrant advocacy community's goals is its desire to repeal the five year-long waiting period for legal immigrants to access Medicaid and CHIP, as well as to repeal the sponsor/deeming regime for Medicaid and CHIP that most legal immigrants must adhere to.  Given the parliamentary situation that is expected to be in force, there would appear to be no way for the community to achieve the goal. only way to achieve this goal will be to convince the House Democratic Leadership to place the provisions into the manager's amendment.


Concerns of the Immigration Restrictionist Community
The immigration restrictionist community is unhappy with the treatment of immigrants under the House health care reform bill.  They contend that the citizenship and immigration status verification regime in the bill is not rigorous enough to ensure that illegal immigrants are prevented from receiving benefits from the bill.  They also complain that legal immigrants would be eligible for affordability subsidies immediately upon entry to the United States rather than having to wait for five years after entry.  And they oppose permitting illegal immigrants to purchase health insurance products listed on health care exchanges.

Immigration restrictionists in Congress are expected to file amendments with the House Committee on Rules that would bar illegal immigrants from purchashing health insurance products that are listed in the exchanges, impose a five year-long waiting period for legal immigrants to access health insurance affordability subsidies, and strengthen the citizenship and immigration status verification regimes.


Outlook 
It was not possible at the time of this writing to predict whether the House Democratic Leadership will include any immigration-related provisions in the rule providing for consideration of H.R. 3962. Moreover, it was not possible at the time of this writing to predict whether the House Democratic Leadership will be able to assemble the 218 votes it will need in order to pass H.R. 3962.