- In October, the White House issued a proclamation suspending (with exceptions) the entry of immigrants who cannot show that they would be covered by approved health insurance — as defined therein — within 30 days of their entry into the United States.
- The purpose of that proclamation was to eliminate the substantial costs to healthcare providers and taxpayers in paying for medical expenses incurred by immigrants who lack health insurance or the ability to pay for their own healthcare.
- The overall cost of unreimbursed services that hospitals give their patients — both citizens and aliens — has exceeded $35 billion in each of the last 10 years. This equals approximately $7 million per hospital, costs that can drive some of them into insolvency.
- In addition, uninsured individuals often use emergency rooms to seek care for non-emergency conditions, causing overcrowding and delays for those who truly need emergency services.
- That proclamation states that "lawful immigrants are about three times more likely than United States citizens to lack health insurance."
- The Ninth Circuit has found that 60 percent of all visa applicants would be affected by that proclamation, and 375,000 immigrants potentially would be precluded from obtaining a visa annually thereunder.
- A district court judge issued a nationwide preliminary injunction blocking that order in November — months before he certified the two subclasses on which the nationwide scope of that injunction is based.
- On Monday, the Ninth Circuit denied the government's request to stay that preliminary injunction pending appeal.
- Those courts' orders fail to recognize the broad scope of the president's authority to suspend the entry any class of aliens whose entry he finds would be detrimental to the interests of the United States, which was given him by Congress in section 212(f) of the Immigration and Nationality Act, as well as the limitations of courts to review of that authority. The Supreme Court has previously held that provision "exudes deference to the president in every clause."
- In his dissent from that order, Judge Daniel Bress stated: "Today's decision is yet the latest example of our court allowing a universal injunction of a clearly constitutional Executive Branch immigration policy."
- Judge Bress's dissent underscores numerous errors in both the district court's and circuit court's orders, including infirmities in the class certification orders.
- The Wuhan coronavirus pandemic, and the subsequent strains on our nation's limited healthcare system, underscores the logic and rationale of that proclamation.
On Monday, the Ninth Circuit denied a request by the government to stay an injunction issued by a district court judge of an October 4 presidential proclamation (PP 9945) captioned "Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System, in Order To Protect the Availability of Healthcare Benefits for Americans". The denial was not a big surprise — I feel like I have written the introductory clauses several times before, and the circuit court had already denied an emergency temporary stay of the district court's order — but the timing is interesting, and the circuit court's latest order is remarkable for its fiery, well-reasoned dissent.
What the Proclamation Does
PP 9945 limits the entry of foreign nationals as immigrants unless they "will be covered by approved health insurance, as defined" therein within 30 days of entry, or "possess the financial resources to pay for reasonably foreseeable medical costs", with a number of exceptions. Pretty basic stuff: If you can't pay for health care after you come to the United States, you will burden our healthcare system, impose costs on taxpayers, and shouldn't be allowed to move here permanently. Despite the basic logic of this contention, the PP states, "data show that lawful immigrants are about three times more likely than United States citizens to lack health insurance." (Emphasis added.)
There are two specific burdens that PP addresses. First, as the proclamation explained, "Healthcare providers and taxpayers bear substantial costs in paying for medical expenses incurred by people who lack health insurance or the ability to pay for their healthcare." Generally, those hospitals and providers care for the sick and injured even if the latter cannot pay. As a consequence, we all pay through "higher taxes, higher premiums, and higher fees for medical services." How much does that uncompensated care cost? According to PP 9945, more than $35 billion a year over the past decade, or "approximately $7 million on average for each hospital in the United States", a situation that can leave them insolvent.
Second, "uninsured individuals often use emergency rooms to seek remedies for a variety of non-emergency conditions, causing overcrowding and delays for those who truly need emergency services." This a particularly salient and topical point when our country is in the throes of the Wuhan coronavirus pandemic, and we are all encouraged to self-isolate to reduce the strain on those limited healthcare resources.
The authority for that PP was premised largely on the president's power under section 212(f) of the Immigration and Nationality Act (INA) , the provision at issue in the Supreme Court's decision in Trump v. Hawaii, the so-called "travel ban" (actually limited travel restrictions) case. Section 212(f) gives the president the authority to suspend by proclamation the entry of any class of aliens whose entry he deems "detrimental to the interests of the United States", for as long as he deems necessary.
It entrusts to the President the decisions whether and when to suspend entry ("[w]henever [he] finds that the entry" of aliens "would be detrimental" to the national interest); whose entry to suspend ("all aliens or any class of aliens"); for how long ("for such period as he shall deem necessary"); and on what conditions ("any restrictions he may deem to be appropriate").
You would think that Hawaii would have been dispositive of the validity of PP 9945, but not according to reviewing courts.
The District Court's Injunction
On November 26, Judge Michael Simon of the federal district court in Oregon issued an order enjoining this proclamation to, as he stated, "preserv[e] the status quo until the Court renders its decision on the merits." Astoundingly (and seemingly supporting PP 9945), the judge found: "The Proclamation is anticipated to affect approximately 60 percent of all immigrant visa applicants" — meaning that six out of 10 immigrants could not comply with the PP's mandates.
The district court concluded, nonetheless, that there were issues with that proclamation. In particular, the court held that the proclamation violates the "nondelegation doctrine" (under which Congress can't delegate strictly legislative powers to the executive), because whereas prior actions found to be legitimate under section 212(f) involved foreign relations and national security, PP 9945 strictly deals with "domestic policymaking". (Emphasis in original.)
Of course, any action that deals with the admission of aliens by its nature deals with foreign relations (a point the government made), both specifically with respect to the given foreign national and diplomatically as it relates to the manner in which we deal with the nationals of other countries. The district court, however, without coherent reference or analysis, brushed aside "such a broad construction" of section 212(f).
In addition, Judge Simon found that the proclamation (again, largely premised on the president's authority in section 212(f) of the INA), unconstitutionally violates the separation of powers between the legislative and the executive branches. Specifically, he found PP 9945 "supplants" rather than supplements the "public charge rule" in section 212(a)(4) of the INA, and in particular the factors Congress directed the executive branch to consider in determining whether an alien is inadmissible as a public charge in subparagraph (B) therein.
Pursuant to that provision, in determining whether an alien is a public charge, the government is directed by Congress to consider "at a minimum" an alien's "age; health; family status; assets, resources, and financial status; and education and skills", as well as "any affidavit of support" filed on that alien's behalf.
The judge found PP 9945:
[M]akes the ability to pay for anticipated care needs a single, dispositive factor, first by requiring an assessment of the applicant's available health insurance, a new factor, and then by requiring an assessment only of the applicant's health and financial resources, which are two of many factors that Congress has mandated must all be considered.
Four points. First, the court finds PP 9945 supplants the public charge rule "because it is designed to stop immigrants from being a burden on taxpayers by using public resources such as Medicaid, subsidized ACA plans, and free emergency room and medical services" and that it "may only reasonably be interpreted as a categorical exclusion for any affected immigrant who cannot afford health insurance or reasonably anticipated medical costs." Respectfully, if that does not satisfy the purposes of the public charge rule, I don't know what does.
Second, the court's analysis ignored the fact that section 212(f) is a separate delegation of power by Congress to the executive to exclude aliens. Most of the grounds of inadmissibility are contained in section 212(a)(2) of the INA (aliens who pose a health risk, criminal aliens, national security risks, etc.). An alien can satisfy PP 9945, and still be inadmissible because they have a communicable disease, or are "practicing polygamists", or fall within any of the other grounds for inadmissibility. Section 212(f) proclamations simply set up a separate ground of inadmissibility.
Third, and relatedly, an alien can satisfy PP 9945 and still be inadmissible on public charge grounds, meaning that PP 9945 does not actually make an alien's ability to pay for care a single, dispositive factor with respect to that ground of inadmissibility.
Fourth, in section 212(f), Congress gave the president the power to suspend the entry of "any aliens", logically barring all aliens from the United States. By Judge Simon's logic, though, any proclamation that did so (which is expressly permitted) would be unconstitutional. But, it is Congress itself that gave the president that authority, and Congress that can take it away by legislation. So, by definition, any such exercise of that authority (which would be much broader than the restrictions in PP 9945) cannot violate the separation of powers doctrine. If Congress doesn't like it, they have only themselves to blame.
Nonetheless, and consequently, the district court found that the plaintiffs had "have shown a likelihood of success on the merits," and because he found that they faced "irreparable harm" and that the equities tipped in their favor, he issued a universal injunction of the proclamation.
On April 7, months after he issued his injunction (and while the government's motion for stay was pending with the circuit court), Judge Simon certified the following two subclasses of petitioners:
(1) U.S. Petitioner Subclass:
Individuals in the United States who currently have or will have an approved or pending petition to the United States government to sponsor a noncitizen family member for an immigrant visa; and whose sponsored family member is subject to the Proclamation and unable to demonstrate to a consular officer's satisfaction that he or she "will be covered by approved health insurance" within 30 days after entry or will be able "to pay for reasonably foreseeable medical costs"; and
(2) Visa Applicant Subclass:
Individuals who are foreign nationals who (i) have applied for or will soon apply to the United States government for an immigrant visa; (ii) are otherwise eligible to be granted the visa; but (iii) are subject to the Proclamation and unable to demonstrate to the satisfaction of a consular officer that they "will be covered by approved health insurance" within 30 days after entry or will be able "to pay for reasonably foreseeable medical costs."
In its Monday order, the Ninth Circuit denied the government's request for a stay, finding that the government had failed to show irreparable harm for such stay, that it had "not met the high standard of showing a strong likelihood of success on the merits," and that a nationwide injunction was appropriate because the district court had subsequently certified the two nationwide subclasses.
Significantly, with respect to the merits, the majority did not address the portion of Judge Simon's "lengthy, thoughtful, and forceful opinion focusing on whether the Proclamation violated the nondelegation doctrine," deferring that analysis to the circuit court panel that would ultimately rule on the merits of the case. Likely with good reason.
A Forceful Dissent from the Circuit Court Majority's Ruling
Ninth Circuit Judge Daniel Bress, on the other hand, dissented from his two colleagues on the panel, and in forceful terms:
Today's decision is yet the latest example of our court allowing a universal injunction of a clearly constitutional Executive Branch immigration policy. ... In what unfortunately has become standard operating procedure, the district court enjoined the Proclamation on a nationwide basis before it could take effect. While declining to endorse the district court's central rationale, my fine colleagues in the majority find a way to justify the district court's decision, while refusing to stay or limit its blanket injunction.
Likely echoing the sentiments of many who have supported the president's immigration agenda (or limitations on judicial activism), he continued:
It is a bad day for the separation of powers when the Executive — operating at the apex of his constitutional mandate — loses out to players who lack the authority that the Constitution and Congress entrusted to him. And it is an equally bad day for the rule of law when the majority opinion endorses arguments that the Supreme Court expressly rejected two years ago in Trump v. Hawaii. As with many immigration policies, reasonable minds will differ as to whether Proclamation No. 9945 is good or bad policy. But the great policy debates of our time should be resolved in the halls of Congress, the public square, and at the ballot box, not by a district court in Oregon or a three-judge panel in San Francisco. What I know is that Proclamation No. 9945 is valid as a matter of law. And that is what matters here.
In the interests of brevity, I will not even attempt to summarize Judge Bress' (to borrow a phrase) lengthy, thoughtful, and forceful dissent, but instead focus on some of the high points of his analysis.
High Points of the Dissent
First, Judge Bress found that the courts' intrusion on the president's powers was compounded by the scope of the injunctive relief, despite concerns that have been raised about such universal injunctions. With respect to the latter point, he specifically stated:
Injunctions such as this raise many issues, as the Supreme Court has signaled in repeatedly staying lower courts' (and our court's) universal injunctions. See Wolf v. Innovation Law Lab, No. 19A960, 2020 WL 1161432 (U.S. Mar. 11, 2020); Dep't of Homeland Sec. v. New York, 140 S. Ct. 599 (2020); Barr v. E. Bay Sanctuary Covenant, 140 S. Ct. 3 (2019); Trump v. Int'l Refugee Assistance Project, 138 S. Ct. 542 (2017); Trump v. Hawaii, 138 S. Ct. 542 (2017).
Not heeding these signals, the majority allows another universal injunction to remain in place.
This echoes statements that I have made with respect to such injunctions, and in particular my review of the stay of the injunction in E. Bay Sanctuary Covenant: "The Supreme Court does not appear ... to be willing to allow individual judges in cherry-picked districts to set immigration policy for the United States as a whole, absent the clear illegality of an administration decision."
Next, noting that the district court did not certify the two aforementioned classes until long after it had issued its injunction, Judge Bress concluded:
The sequence of events here is cause for concern, and the majority's reliance on the belated class certification decision confirms that the district court's universal injunction was not justified when issued. But what the class certification ruling also shows is that the excesses of universal injunctions stem in large part from a failure to abide by the rigorous requirements for class certification — requirements that the district court unfortunately did not observe.
In addition, and in a point that I made above, the dissent notes that section 212(f) of the INA and the public charge provision in section 212(a)(4) of the INA "are simply two different grounds for inadmissibility. One can meet the public charge provisions but not the Proclamation, and vice versa." And, he explained: "There is nothing unusual about Proclamation No. 9945 creating an independent — and yes, dispositive — ground for inadmissibility, when that is the whole point of" section 212(f).
Further, Judge Bress rejected the majority's conclusion that the government had failed to show irreparable harm absent a stay:
The harm that the court's injunction inflicts is irreparable and real — to the interests the Executive seeks to promote through the Proclamation and to the core separation of powers principles that make the Proclamation lawful. The injunction is a severe affront to the President's authority, itself an irreparable injury.
In this regard, he also noted that the proclamation cannot be applied post hoc to any alien admitted as long as the injunction is in effect, so the costs imposed by those aliens are "unrecoverable", and therefore constitute "irreparable harm". He continued:
The scope of the injunction here only confirms both the fact of irreparable harm and its magnitude. The injunction applies worldwide and, by the majority's estimation, "would negatively affect approximately 60% of all immigrant visa applicants" and "375,000 immigrants each year." ... This only "prove[s] [the government's] point," confirming that the harm "is not only irreparable, but significant."
Responding to the majority's disbelief about the fact, as stated in the proclamation, "that lawful immigrants are about three times more likely than United States citizens to lack health insurance", as well as its complaints about the lack of citations for this statistic, Judge Bress pointedly (and acerbically) asserts:
This is of a piece with the majority's criticism that the Proclamation lacks "data-driven analysis" or a "further cost quantification" (an apparently technical requirement that the majority opinion leaves undefined). ... The majority's failure to give the Executive any deference is clear legal error.
A presidential proclamation is not a second-grade math assignment, where a student must "show his work" to get credit.
. . .
The majority's demand that the government explain the Proclamation's factual findings . . . is directly contrary to the Supreme Court's admonition that the President is "'not required to conclusively link all of the pieces in the puzzle before [courts] grant weight to [his] empirical conclusions.'"
Criticizing the Universal Scope of the Injunction
Finally, returning to his earlier complaint, Judge Bress criticizes the universal scope of the injunction.
Procedurally, he critiques the district court for issuing its injunction long before certifying the two classes above, asserting that the injunction should only have provided relief to the prevailing parties then before the court:
Blocking a presidential policy for many months nationwide, without justification, is no small thing. And by ratifying the scope of the district court's injunction, the majority invites district courts to issue overbroad injunctions up front, only to be followed some months later by the class certification decisions that supposedly undergird them. This has it backwards. The scope of a preliminary injunction should be supported at the time it is issued, not months later and while the injunction is on appeal.
Substantively, following a comprehensive examination of the two identified classes, Judge Bress concludes that the class certifications in question were themselves "infirm". And, he explains why that is a crucial issue in this and other cases:
In short, the idea that "class certification" is the incantation needed for a nationwide injunction misses the point that Rule 23 [of the Federal Rules of Civil Procedure, governing "Class Actions"] is designed to impose limits on broad relief, not to grease it. The above discussion is not intended to exhaust the problems with the district court's class certification decision. But it shows that in this case, the injunction's extraordinary and improper scope depends on a class certification ruling that does not withstand scrutiny under Rule 23. One suspects that many of the current issues with nationwide injunctions can be traced to misapplications of Rule 23. That is, at least, the case here.
Keep in mind, PP 9945 was issued long before anyone (likely) had ever considered the effects of the Wuhan coronavirus, let alone well before that disease (again, likely) was even identified. The current lockdowns, however, show clearly why such a rule was necessary to begin with: to ensure that all immigrants to the United States have health insurance and that the costs of healthcare are not borne by hospitals and the government, and to ensure that uninsured immigrants do not impose an unnecessary burden on (increasingly) limited medical resources.
The government is likely to seek a stay of this injunction from the Supreme Court. Perhaps, in the course of the ultimate litigation, the Court can address not just the legality of PP 9945, but the parameters of such universal injunctions and the legality of the class actions that support those injunctions to begin with.