ObamaCare and the Obama DREAM Edict: A Precipitous Disconnect

June was a whirlwind month of activity in Washington. The news out of D.C. have been breathtaking with the President's edict on protecting DREAM-Act-eligible youth, the momentous Supreme Court decision in Arizona v. U.S, and the monumental Supreme Court decision on the legality of Obamacare. I would also note that just three days before the President's DREAM Act announcement, our Evangelical Immigration Table held a press conference in Washington, announcing that we had obtained over 150 signatories for our Statement of Principles that advocate for a just and moral solution to our nation's broken immigration system. We also met with – among many leaders – members of the President's administration about this issue.

As a conservative advocate that is for the revision of our nation's broken immigration system, I'm attempting to connect the dots that fundamentally tie all of these decisions and actions inexorably together. Allow me to elaborate.

First of all, I do want to say upfront that I believe that the President's decision to try to protect DREAM-Act-eligible youth from possible deportation through an administrative act of discretion, allowing these individuals to be placed on "deferred action," was both merciful and morally justified. However, it was also precipitous in that it intentionally derailed an ongoing attempt by a group of Senators to pass a similar measure legislatively, and therefore codifying this protection into law through the issuance of non-immigrant visas. So what is the distinction? There is a tremendous distinction between administrative policy and actual law.

For starters, the legislation that was about to be introduced by Marco Rubio and several co-sponsors would have allowed these young people to actually adjust their status, or more accurately, to gain status, albeit as non-immigrant visa holders. The President's action, while temporarily protecting these young people for a period of two years (subject to a reversal should the President lose his re-election bid) does nothing to grant actual status to these people. It only places them in a "deferred action" classification, meaning that they will not be placed into immediate deportation proceedings for the duration of their two year increment. They could theoretically continue to re-apply for another two year extension of deferred action when the current two year term expires.

There is a direct correlation between these 1,000,000 young men and women and the Affordable Care Act that has been deemed legal by the Supreme Court. Now, we all remember the infamous "You lie!" exclamation from Congressman Joe Wilson in response to the President's assertion that no undocumented immigrants would be covered in his ACA, or ObamaCare. Therefore, taking the President at his word, this classification of predominantly young and healthy immigrants covered under the new Obama DREAM edict will not be eligible to participate under the new healthcare laws. After all, they still will not have status; they will simply be under the auspices of "deferred action." Now, I submit that it would be to our nation's overall benefit to have these 1,000,000 young and healthy individuals participate in the ObamaCare program, as this addition of young and healthy folks would bring the overall cost of healthcare insurance down for all of the rest of us.

However, according to DHS Secretary Napolitano's letter on June 15, "The use of prosecutorial discretion confers no substantive right, immigration status, or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights." She is exactly correct. These young folks will not have any legal status to be in the United States, and are therefore ineligible to participate under the programs of the Affordable Care Act, including the Health Care Exchanges. However, had the President allowed the legislative process to proceed unencumbered, these young people would have been able to actually receive immigration status (and therefore lower everyone's insurance premiums through their participation in the ObamaCare system), according to Secretary Napolitano's letter.

As David Nather recently wrote in Politico, "And if the mandate doesn't bring in enough young and healthy people, the danger is that the pre-existing condition coverage that's also in the law - guaranteed coverage for people with health problems - would force insurers to raise their premiums to cover their costs." By opting for this expedient political solution, the President (perhaps unwittingly) undermined his signature healthcare issue. This amounts to a lose-lose scenario. Whereas had the President allowed Marco Rubio's ACHIEVE Act legislation to move forward, we probably would have had a win-win on this issue. Certainly these 1,000,000 young men and women would have appreciated having an opportunity to participate in our healthcare system.

Furthermore, there was an article in The Hill on June 24 titled, "Advocates Worry Obama Deportation Policy Will Cause New Headaches." Specifically, the article discusses how these advocates are concerned that by protecting these young people through administrative discretion, as opposed to through actual legislation, these people, as well as their parents, could find themselves in jeopardy. The article quotes Joanne Lin, the legislative counsel for the American Civil Liberties Union (ACLU), as saying, "…one of the biggest concerns is the uncertainty about what would happen to the illegal parents of the young people who take advantage of the new policy. To gain deferment for their children, parents will likely have to expose their own illegal status to government officials, possibly setting them up to be deported."

I again point to how this precipitous action by the Administration undermined a legitimate legislative effort to solve this exact problem. About a year ago, our group, Conservatives for Comprehensive Immigration Reform, discussed this exact issue of protecting the parents with one of the Senators that was working on a legislative solution, Kay Bailey Hutchison. This led the Senator to develop a clause in the proposed "ACHEIVE Act" that dealt specifically with the issue of confidentiality in terms of protecting exactly the type of information that Ms. Lin now rightfully points out is very problematic. As it stands now, the administration is legally powerless to protect this information against future enforcement actions by Immigration and Customs Enforcement (ICE). Had the President allowed the legislative process to play out, this would have been a non-issue. Now, it is a significant problem when it could have been avoided.

In fact, the President's action, while merciful, probably did "poison the well" in terms of trying to legislate a real and practical solution in Congress to our broken immigration system. In the wake of the Supreme Court ruling in Arizona v. U.S., even Luther Strange, the Attorney General of the State of Alabama, stated that the ruling gives Congress "a mandate to enact Comprehensive Immigration Reform." However, there is a real concern that by forwarding a political solution, as opposed to a true legislative solution on the DREAM Act, the President has made his prospects for legislating immigration reform (should he be re-elected) a much more difficult task.

I don't want to "pile on" in my criticism of the President. I believe that his heart is in the right place in that he does believe in comprehensive immigration reform. However, it is accurate to point out that he had what amounts to the best chance in recent history to push through CIR in 2009 or 2010, when he did have a tremendous advantage in congressional support. The fact is that he passed on this opportunity, and the immigration advocacy community is rightfully upset that the President failed to keep his promise to prioritize this very important issue when he had the votes to back his position up. Now he is asking for a chance at a second bite of that apple. To me, this warrants at least two serious questions. First, can we trust the President that this time he will keep his word to the advocacy community and that this time he will push CIR? The second question might be more important. Can the President actually lead both parties to reach a legislative accord that truly solves our nation's immigration problems in a compassionate yet resolute manner, or has he used up any possible good will from Republicans in Congress, and is therefore unable to lead on this issue?

Rest assured, our CfCIR coalition, our Evangelical Immigration Table, and the rest of the advocacy community will do our best to heal the rift caused by the President's political action and we will re-double our efforts to move Congress to enact a bipartisan legislative solution to our immigration crisis. However, it didn't need to be such a heavy lift. We were about to see Republicans put forward true legislative reforms, starting with the ACHIEVE Act. This would have been a tremendously important first step toward healing our country's broken immigration system. The President just made this a tougher effort. I urge my conservative friends and colleagues to try their best to put this political season into perspective, and to work towards a true and morally just immigration solution beginning immediately after November's election.

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