Excluding Non-citizens from the Social Safety Net

• Publication year: 2021

Excluding Non-Citizens from the Social Safety Net

Wendy E. Parmet^*

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I want to begin by offering many thanks to Professor Weeks, Sarah Quinn, and the students on the Georgia Journal of International and Comparative Law. Thank you for organizing this terrific and timely conference. I am honored to speak to you today and be a part of this formidable panel.

In my brief time, I want to discuss how the exclusion of noncitizen immigrants from our social safety net undermines public health—especially, but not only, during a pandemic. But first, Professor Weeks suggested that I begin by speaking a bit about my own work in this area. I first thought deeply about immigration law's impact on health in 2009 when my home state, Massachusetts, passed a law that withdrew coverage from a state-funded health insurance program for about 35,000 non-citizens.¹ This happened only a few years after the state adopted a health reform measure that its supporters heralded as leading us to universal care.² By excluding immigrants, I thought, the state had reneged on its promise. It also threatened to unravel the social solidarity upon which the state's health reform was founded. So, along with some great lawyers from Health Law Advocates, a public interest law firm that focuses on health care access, I sued the state, charging that the exclusion violated the equal protection provisions of the state constitution. We won!³

My work on the Finch case, as it was known, forced me to look deeper into the ways that immigration-focused laws—including those in other nations—undermine the health of immigrants and the population writ large. In 2017, my colleague Patricia Illingworth and I published a book on the subject called The Health of Newcomers: Immigration, Health Policy & the Case for Global Solidary.⁴ One of the key findings of that book was that almost all nations, even those that ostensibly have universal health care, limit access to all but non-emergency care to at least some classes of immigrants, usually those who are undocumented.⁵ Another important takeaway was that non-citizens are often scapegoated—blamed for causing epidemics and diseases—even though, in general, they tend to be healthier than native-born citizens.⁶ Finally, and perhaps most

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critically, we explored the many ways that nativist laws and policies undermine the health of newcomers and native-born residents alike. Health, we argued, is largely a public good. By threatening the health of immigrants, nations imperil the health of everyone.⁷

All that was before COVID-19. Once the pandemic struck, it quickly became apparent that immigration law and policies would impede our nation's response to the pandemic. In my contribution to Assessing Legal Responses to COVID-19, a comprehensive report on the role that law has played during the pandemic, I identified three mechanisms through which immigration laws and policies have adversely impacted the U.S. response to the pandemic.⁸ These include distorting the nation's response, spreading contagion at the border and in detention facilities, and increasing vulnerability to the pandemic by erecting barriers to vital goods and services.⁹ In my remarks today, I highlight the third mechanism.

To begin, however, it is worth remembering that the story of immigration and epidemics is an old one. Throughout history, societies have scapegoated newcomers, blaming them for frightening diseases.¹⁰ So, too, immigration law has been used widely to keep out immigrants who were thought to carry disease, even though there has never been evidence that immigrants are a major source of infectious disease.¹¹ At the same time, the treatment of immigrants residing within the United States has always made them more vulnerable to outbreaks.¹² In effect, immigration laws and policies act as adverse social determinants of health.¹³

This has been especially evident during the pandemic. Both before and during the COVID-19 pandemic, immigration laws and policies have operated to exclude millions of immigrants from accessing health care and other critical social

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supports.¹⁴ This has made them—and in turn everyone—more vulnerable to the pandemic.¹⁵

Unfortunately, immigration law's adverse impact on the pandemic is not fully known. States do not report COVID-19 case data by immigration status. Nevertheless, the poor data that we have reveal that communities with high levels of immigrants—especially Latinx immigrants—have suffered disproportionately.¹⁶ Further, the age-adjusted death rate in the Latinx population, which is heavily comprised by immigrants, is more than twice as high as the rate for whites.¹⁷ Without question, structural racism has worked alongside immigration law to magnify these vulnerabilities.

Immigration law exacerbates vulnerability through several different mechanisms. Importantly, these mechanisms did not start with President Trump. In 1994, Republicans took control of Congress after a campaign in which they promised, through the so-called "Contract with America," to cut public benefits and promote personal responsibility.¹⁸ In 1996, they made good on that promise, passing the Personal Responsibility and Work Reconciliation Act, PRWORA,¹⁹ which generally bars undocumented individuals from accessing most federally funded benefits and blocks even lawfully present non-citizens from eligibility for the first five years in which they have that status.²⁰

PRWORA is a complex law, and there are many exceptions and exceptions to those exceptions.²¹ Further, subsequent laws allowed states to expand access to publicly financed health care, with federal support, to health care for pregnant women and children.²² But there is no doubt that PRWORA bars many non-citizens from large portions of the social safety net, increasing their social vulnerability.²³ And because two-thirds of non-citizens live in households with citizens,

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and 13% of citizen children have a non-citizen parent, immigrants' vulnerability cannot and is not limited to non-citizens.²⁴

The Affordable Care Act (ACA) expanded some immigrants' access to health care, but also left many holes in place.²⁵ Most importantly, it did not repeal PRWORA. It also imposed significant verification requirements designed to deter undocumented immigrants.²⁶ The law did permit lawfully present immigrants to purchase insurance on the exchanges, but the Obama Administration concluded that Deferred Action for Childhood Arrivals (DACA) recipients did not qualify.²⁷ Largely as a result of these laws, as well as their vulnerabilities in the labor market, immigrants of every status were far less likely than native born citizens, even before President Trump took office, to have insurance or a usual source of care.²⁸

Once in office, the Trump Administration undertook a series of policy changes that fortified the barriers, creating what some have called the invisible wall.²⁹ These steps—alongside heightened enforcement measures—deterred immigrants from accessing even the benefits to which they were legally entitled.³⁰ Most likely, these measures have also kept immigrants from feeling comfortable responding to contact tracers during the pandemic. And they threaten to undermine the vaccination campaign, as...