(CN) — President Donald Trump’s proclamation barring would-be immigrants from obtaining visas unless they have health insurance will remain blocked pending litigation, a divided Ninth Circuit panel ruled Monday.
Trump issued the proclamation in October 2019, directing officials to refuse visas to immigrants who aren’t covered by an “approved” health insurance plan and don’t have enough money to pay out of pocket for their doctor bills. At the time, the president justified the proclamation with an unsubstantiated claim that it would prevent the government from assuming the “burden” of covering immigrant health care.
The case is distinct from one over a Trump administration rule making it harder for immigrants to get green cards if they use public assistance programs like food stamps — a policy the U.S. Supreme Court ruled in April can take effect.
In this case, seven U.S. citizens sued, saying they were sponsoring family members who would be unfairly barred by the rule. The lawsuit called the proclamation a “plainly illegal” effort to impose “a draconian effect on the immigration system through presidential fiat.”
This past November, U.S. District Judge Michael Simon issued a nationwide preliminary injunction barring the enforcement of the proclamation while the lawsuit proceeded. Simon found the proclamation is likely illegal because it would cause family separations — which Congress specifically wanted to guard against when it established the visa system. Simon also wrote the proclamation was issued without authority, that its authors failed to back up the claim that immigrants cost the U.S. $35 billion per year and that it would reinstate an immigration ban on “paupers” that Congress outlawed in a 1990 amendment to the Immigration Nationality Act.
The government appealed, asking the Ninth Circuit to lift the injunction. The appeals court refused in December to do so on an emergency basis, with Chief U.S. Circuit Judge Sidney Thomas writing that doing allowing the rule to take effect before the case was decided would “disrupt” the status quo and make “major and unprecedented” changes to American immigration policy.
The 2–1 ruling included a fiery dissent from U.S. Circuit Judge Daniel Bress, a recent Trump appointee and member of the Federalist Society. That math was consistent with the ruling issued Monday, in which the same panel issued a lengthier ruling refusing the government’s request for a stay pending appeal.
Judge Thomas, a Clinton appointee, was joined by U.S. Circuit Judge Marsha Berzon, an Obama appointee, in Monday’s ruling. Judge Bress again dissented, calling the majority’s ruling an “unjustified intrusion on presidential prerogative.”
Simon, the lower court judge, meanwhile certified two subclasses in the pending litigation: U.S. citizens who want to sponsor a family member for a visa, and those applying for a visa who would be barred by the rule.
Thomas wrote the government had not shown that it would be harmed by a delay in implementing the proclamation, since it had never backed up its assertion that immigrants cost the government an undue amount of money in the first place. Thomas seemed particularly put out by the lack of evidence for the government’s claim that recent immigrants are three times as likely as U.S. citizens to lack health insurance.
“There is no citation in the proclamation for this statistic, nor is one to be found anywhere in the record,” Thomas wrote. “Nor could the government provide any source for this assertion in briefing or at oral argument. And the proclamation contains no further cost quantification.”
On the contrary, lawyers for the plaintiffs submitted evidence showing that immigrants tend to be healthier than the rest of the insured population, comprise less than 3% of uninsured adults and use less than 0.06% of the country’s medical resources.
And an amicus brief filed by 21 states, the District of Columbia and New York City noted that immigrants pay over $405 billion in taxes every year and that, instead of saving the government money, the proclamation was likely to increase the cost of covering uninsured immigrants.
But the plaintiffs in the case would likely face substantial harm from the rule, Thomas wrote, as they would be separated from their families. He added the proclamation would prevent 60% of immigrants applying for visas from getting them, even though they would qualify under current rules.
And the government hadn’t shown it was likely to win the case, Thomas found, noting the byzantine requirements of the proclamation put immigrants in a “Catch-22.”
“In sum,” Thomas wrote, the proclamation “prevents otherwise eligible immigrants from accessing either subsidized or unsubsidized health insurance plans as Congress intended and instead requires them to obtain — if they can — different, lower quality insurance to be eligible for a visa.”