Alienage classifications and the denial of health care to DREAMers.

• Author: Marouf, Fatma
• Position: Abstract through II. Scrutinizing Standards of Review for Alienage Classifications B. Discrimination by the Federal Government, p. 1271-1306

ABSTRACT

In the Affordable Care Act ("ACA"), passed in 2010, Congress provided that only "lawfully present" individuals could obtain insurance through the Marketplaces established under the Act. Congress left it to the Department of Health and Human Services ("HHS") to define who is "lawfully present." Initially, HHS included all individuals with deferred action status, which is an authorized period of stay but not a legal status. After President Obama announced a new policy of Deferred Action for Childhood Arrivals ("DACA") in June 2012, however, HHS amended its regulation specifically to exclude DACA recipients from the definition of "lawfully present." The revised regulation denied DREAMers--undocumented immigrants brought to the United States as children--access to affordable health care, while providing it to similarly situated individuals who had been granted deferred action through other means. This Article examines whether the exclusion of DREAMers from the ACA violates equal protection principles, highlighting critical inconsistencies and gaps in the case law on standards of review for alienage classifications. A circuit split exists about whether non-legal permanent residents are ever entitled to strict scrutiny, and the extent of the Executive's power over immigration remains unclear, as does the allocation of power within the executive branch. In addition, courts are divided about the standard of review that applies when states discriminate against noncitizens pursuant to a federal statute. All of these issues complicate the analysis and underscore the need to reevaluate an unraveling tiered approach to judicial review.

INTRODUCTION I. EXCLUSION OF DACA RECIPIENTS FROM THE ACA A. Legislative History B. Impact of DA CA and DAP A Policies C. Health Care Options for DACA Recipients II. SCRUTINIZING STANDARDS OF REVIEW FOR ALIENAGE CLASSIFICATIONS A. Discrimination by States 1. Strict Scrutiny for Legal Permanent Residents 2. Circuit Split for Non-Legal Permanent Residents B. Discrimination by the Federal Government 1. Rational Basis Review and the Plenary Power 2. Allocation of Power Between Congress and the President 3. Allocation of Power Within the Executive Branch C. Discrimination Pursuant to Federal-State Hybrids 1. Decisions Applying Rational Basis Review 2. Decisions Applying Strict Scrutiny D. Summary of Standards of Review III. EQUAL PROTECTION ANALYSIS OF THE EXCLUSION OF DACA RECIPIENTS FROM THE ACA A. Does Heightened Scrutiny Apply? 1. Does HHS Lack Relevant Expertise? 2. Was There an Express Mandate from Congress? 3. Was There an Express Mandate from the President? 4. Does Having Only Deferred Action Status Matter? B. Does the Exclusion Survive Rational Basis Review? C. Are States Engaging in Prohibited Discrimination? IV. POSSIBLE PATHS THROUGH THE QUAGMIRE A. Alternative Approaches to Judicial Scrutiny 1. Applying a Sliding-Scale Approach 2. Answering Goldberg's Three Questions B. Avoiding Equal Protection Analysis Altogether 1. Challenging HHS's Regulation Under the APA 2. Challenging HHS's Regulation Under Chevron 3. Why Equal Protection Still Matters CONCLUSION INTRODUCTION

The application of equal protection principles to noncitizens remains one of the most perplexing areas of constitutional law. While courts have tried to articulate various principles to synthesize the case law in this area, inconsistencies and uncertainties remain pervasive. As one federal appellate court judge recently recognized, "What is remarkable is that seventy-five years after United States v. Carotene Products Co. announced the need for 'more exacting judicial scrutiny' for 'discrete and insular minorities,' ... we should be divided over the proper standard of review for classifications based on alienage." (1)

The general rule of thumb is that alienage-based classifications receive strict scrutiny when made by states, since alienage, like race, is a suspect classification, but rational basis review applies when such classifications are made by the federal government, due to its plenary power over immigration. The problem is that this approach is plagued with unresolved questions. In terms of discrimination by states, a circuit split exists about whether strict scrutiny applies only to legal permanent residents ("LPRs") or extends to noncitizens with other types of status, such as individuals with temporary work visas, asylum, withholding of removal, or parole. (2) In addition, courts are divided about what to do with "hybrid" statutes, where Congress gives states discretion to decide whether or not to discriminate against certain categories of noncitizens. Some courts have held that states have no real option to discriminate in this situation, while others have upheld discriminatory actions by states on the basis that they are following a federal direction.

Just as complicated are questions involving discrimination against noncitizens by the federal government. While the Supreme Court has repeatedly held that Congress and the President have plenary power over immigration, the allocation of power between the legislative and executive branches remains unclear. The lawsuit brought by twenty-six states challenging President Obama's executive actions on immigration highlights this issue. Even more confusing--and less theorized--is the scope of the plenary power within the executive branch. The Supreme Court has issued only one, opaque decision addressing alienage-based classifications by an executive agency that does not have direct responsibility over immigration. (3) In that case, the Court found the agency's classification unconstitutional but applied a due process analysis to address an equal protection issue. (4) Consequently, there is still an open question about what standard of scrutiny applies to alienage-based classifications by federal agencies whose expertise is not immigration.

An issue that calls attention to these gaps and tensions in equal protection jurisprudence is the exclusion of DREAMers from the Affordable Care Act ("ACA" or "Act"). The term "DREAMers" is used to describe undocumented individuals who came to the United States as children, went to school here, and consider themselves American. They are the group that would have benefited from the Development, Relief, and Education for Alien Minors ("DREAM") Act, legislation that Confess has introduced several times since 2001 but never passed into law. (5) They are also the group that has benefited from the policy of Deferred Action for Childhood Arrivals ("DACA"), introduced by the Department of Homeland Security ("DHS") in 2012, which has requirements resembling the DREAM Act, as it requires entering the United States before the age of sixteen, living here continuously for at least five years, satisfying certain educational requirements, and passing criminal background checks. Unlike the DREAM Act, however, DACA does not create a path to permanent residency or citizenship; it simply allows qualifying individuals to apply for deferred action.

Deferred action is a temporary period of authorized stay granted by DHS that allows someone to apply for employment authorization but does not confer a legal status. As DHS has explained, "Deferred action is a long-standing administrative mechanism dating back decades, by which the Secretary of Homeland Security may defer the removal of an undocumented immigrant for a period of time." (6) It is "a form of prosecutorial discretion by which the Secretary deprioritizes an individual's case for humanitarian reasons, administrative convenience, or in the interest of the Department's overall enforcement mission. (7) For example, DHS typically grants deferred action status to certain classes of individuals, including, but not limited to: abused spouses and children of US citizens and permanent residents with approved self-petitions; immediate relatives of certain US citizens killed in combat; victims of crimes who have demonstrated prima facie eligibility for U or T visas; and important witnesses in investigations or prosecutions. (8) In addition to such classes, DHS has discretion to grant deferred action in any removal case where the individual is a low enforcement priority. (9) Even noncitizens who have already been ordered deported may be granted deferred action based on sympathetic facts if their removal is not a priority. DACA therefore represents just one of many ways to be granted deferred action.

The key question for purposes of access to affordable health care is whether individuals granted deferred action through DACA should be considered "lawfully present" in the United States. The ACA explicitly limits access to its health insurance Marketplaces and tax credits to individuals who are "lawfully present" but does not define this term. (10) Instead, Congress left it to the Department of Health and Human Services ("HHS") to define who is "lawfully present." (11) Initially, in 2010, HHS included all individuals with deferred action status in its definition of "lawfully present." (12) However, after President Obama announced DACA in June 2012, HHS changed its interpretation to exclude DACA recipients from the definition of "lawfully present," even though it continued to include all other individuals with deferred action status. (13) HHS's decision to treat some individuals with deferred action as "lawfully present" while excluding others with the exact same status raises a serious equal protection issue. Yet the standard of review that applies in this situation remains unclear.

In determining the proper standard of review for the disparate treatment of DACA recipients under the ACA, one must grapple with at least three unresolved questions. First, there is an open question about whether noncitizens with deferred action status are ever entitled to heightened scrutiny. Second, although HHS is part of the federal government, it is an agency that does not have direct responsibility over...