Both cases are part of a broader dispute over Trump’s clampdown on immigration, particularly from Latin America.
The health insurance case is related to the administration’s attempt to
deny legal status and work permits to migrants who receive public benefits, like food stamps and Medicaid, a rule that has been blocked by several appeals courts. The asylum ban, which applies to anyone who passes through another country without seeking refuge before reaching the Mexico-U.S. border, is pending before the Ninth Circuit but
has been allowed to take effect by the Supreme Court while challenges proceed in lower courts.
Trump issued a proclamation in October to deny a U.S. visa to anyone who did not have private health insurance or show that they would obtain it within 30 days. Those seeking coverage under Medicaid or the government-subsidized Affordable Care Act would not be eligible. Immigrant advocates say it would bar entry to nearly two-thirds of all legal migrants.
At Thursday’s hearing, Justice Department lawyer August Flentje urged the court to suspend an injunction by U.S. District Judge Michael Simon of Portland, Ore., that blocked the requirement from taking effect as scheduled Dec.1.
U.S. immigration law allows such exclusions “whenever the president finds entry of any class of aliens would be detrimental to the interests of the United States,” Flentje said, quoting the law. “Congress entrusted the president to make these judgments,” he said, and Trump concluded entry of immigrants without private insurance was burdensome to the health care system and expensive for the country.
But Judge Marsha Berzon noted that legal immigrants were eligible for government-funded health care under federal laws.
“Why isn’t that (administration policy) a direct contradiction with Congress?” she asked. And under the Affordable Care Act, she said, migrants would have better coverage than under the minimal private insurance policies that Trump would allow them to buy.
When Flentje argued that uninsured immigrants were driving up costs to hospitals and emergency rooms, Chief Judge Sidney Thomas said, “It’s hard to argue that the nation’s health care system is going to come crashing down in the next two to three months” during the next phase of judicial review. Thomas suggested, however, that the injunction might be narrowed to apply only to clients of the advocacy group in the lawsuit, rather than applying nationwide.
Berzon and Thomas were both appointed by President Bill Clinton. The third panel member, Judge Daniel Bress, a Trump appointee, was more receptive to Flentje’s arguments, agreeing that the policy has a “foreign affairs connection,” and thus entitled to judicial deference, because it would be implemented by U.S. consular officers in other countries.
In the asylum case, the appeals court panel has already intervened once in the government’s favor.
In November, a federal judge in San Diego ordered the Trump administration to allow the 26,000 Central American immigrants to apply for refuge in the U.S., despite the new rules in July barring migrants who had passed through other countries without seeking asylum there. U.S. District Judge Cynthia Bashant said the immigrants who were prevented from entering until the new rules took effect had followed the rules and should not be penalized by government-imposed delays.
But the appeals court panel suspended Bashant’s order Dec. 20 while reviewing the case.
At Thursday’s hearing, lawyers for the Central Americans argued that they were eligible to seek refuge because they entered the U.S., at designated entry stations, before the restrictions took effect. They were then subjected to “metering,” an administration policy requiring asylum-seekers to wait for months in Mexico before submitting their applications.
They “did exactly what they were supposed to do and what the government asked them to do,” attorney Ori Lev told the court. “They waited. It was the classic bait-and-switch.”
But Berzon said Bashant had not ruled on the legality of the metering policy, deciding only that the migrants should not be penalized by it. If metering is presumed to be legal at this point, she asked, “why isn’t the government correct” in finding them ineligible?
Lev contended the appeals court could assess the legality of metering, but Thomas said it would be “pretty tough at this stage of the case.”
Justice Department attorney Scott Stewart also drew some skeptical responses after arguing that “folks who never enter the United States have no right to any particular procedure.”
“They certainly attempted to enter,” said Berzon, echoed shortly afterward by Thomas. But Stewart said the exclusion covers anyone who did not reach U.S. territory before applying for asylum.
The court did not say when it would rule, but it typically issues decisions within a few weeks on temporary stay orders such as those the administration is seeking.
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