Tonight President Obama said:
There are also those who claim that our reform effort will insure illegal immigrants. This, too, is false – the reforms I'm proposing would not apply to those who are here illegally.
President Obama said that "our reform plan" will not apply to those who are here illegally. As H.R. 3200 is currently drafted, it provides inadequate language to assure the President’s stated objective.
H. R. 3200 currently includes Section 246 which is titled "No Federal Payment for Undocumented Aliens." Section 246 reads, in its entirety:
"Nothing in this subtitle shall allow federal payments for affordability credits on behalf of individuals who are not lawfully present in the United States."
As you can plainly read, the bill’s language prohibits undocumented aliens from receiving affordability credits to purchase insurance coverage from the exchange.
What if an undocumented alien wants to purchase insurance from the exchange without the benefit of affordability credits?
The Congressional Research Service (CRS) is a non-partisan research service that supports the Members of Congress, committees, and leaders of the House and Senate at all stages of the legislative process.
In a report issued August 25, 2009, "Treatment of Noncitizens in H.R. 3200" the CRS states that:
"H.R. 3200 does not contain any restrictions on noncitizens participating in the Exchange—whether the noncitizens are legally or illegally present, or in the United States temporarily or permanently."
Thus, while undocumented aliens are prohibited from receiving affordability credits, undocumented aliens would not be prohibited from purchasing coverage from the exchange.
Further, H.R. 3200 does not contain a mechanism to verify the immigration status of potential purchasers of coverage from the exchange. Verification of legal status is required by law for many federal benefit programs, including Medicaid and Social Security, and is facilitated by the Systematic Alien Verification for Entitlements (SAVE) Program. SAVE is "an intergovernmental information-sharing initiative designed to aid eligibility workers in determining a non-citizen applicant's immigration status, and thereby ensure that only entitled non-citizen applicants receive Federal, state, or local public benefits and licenses."
During the process of producing H.R. 3200, the House Energy and Commerce Committee rejected an amendment that would have required that the SAVE system be used to determine the eligibility of persons for receiving affordability credits or participating in the public option.
As the CRS noted in its report, some have expressed concern that the lack of enforcement mechanism may result in no enforcement of these provisions affecting undocumented aliens. The CRS writes that others have noted that under section 142(a)(3) of the bill, the Health Choices Commissioner (a newly created post) will be responsible for administering and determining the eligibility for the affordability credits.
Looking at the legislative language, the CRS report states:
Thus, it appears, absent of a provision in the bill specifying the verification procedure, that the Commissioner would be responsible for determining a mechanism to verify the eligibility of noncitizens for the credits.
In theory, that administrative process could specify adequate verification procedures. Of course, why rely on an administrative process, to be completed years in the future, rather than using clear legislative language to specifying use of an existing program (SAVE)?
Of course, if one wants to provide coverage for undocumented workers, but realizes that the current political dynamic is working against such a proposition, it's understandable why one would then prefer to address the topic administratively in the future rather than legislatively today.
There are lots of considerations on immigration policy. I’m sure it is one of the big issues the President will turn to after health care. You may agree or disagree with the President’s policy not to cover undocumented aliens in his reform plan.
But if the President wants to assure that his goal of not covering undocumented aliens will be met, he should require the use of the SAVE system, the same verification system used for Medicaid and Social Security, to determine the eligibility for affordability credits and participation in the public exchange plan.
Such a requirement would significantly strengthen his claim that his plan will not cover undocumented aliens.