The view held by Democrats that the entire world is entitled to come here and demand access to our health care system on the public dime is not just a political aspiration. They now believe it’s a legal right strong enough to give them standing in court to sue our president. As such, now is the perfect test for the president to see whether he will follow long-standing immigration law or an illegal order by an Oregon judge.
In 1996, Congress passed the latest public charge law on a bipartisan basis to ensure that those entering the country on long-term visas are not likely to live on welfare. There is no more common and costly charge than health care, but previous administrations have failed to enforce the law, as has been the case with so many parts of immigration law.
To that end, the president issued a proclamation in October ordering that effective November 30, most immigrants seeking entry must be “covered by approved health insurance … within 30 days” of entry, or “possess … the financial resources to pay for reasonably foreseeable medical costs.” The criteria for what constitutes coverage are very loose. The applicants can hold any catastrophic plan or show the ability to pay out of pocket. Or they could show they have a clean bill of health. This is not like an Obamacare mandate on immigrants; it’s simply to say that taxpayers must not be saddled with a substantial bill.
In comes Michael Simon, a federal judge in Oregon, over the weekend and unilaterally vetoes our sovereignty and foundational immigration laws by saying the president overstepped his boundaries applying the public charge law. He issued a nationwide injunction for four weeks. The Constitution accords Simon the power to do this the same way it accords me the power to enjoin Trump’s Twitter account. In other words, he has no such power, nor does he have the power to enforce it.
First, let’s tackle the issue of standing. Judges can’t simply create a case or controversy and use that as a vehicle to issue a presidential-like veto on a policy. They have no such power. They simply grant relief to a valid plaintiff. The problem in this case is that the plaintiffs are essentially U.S. citizens petitioning to bring in relatives to this country who have never been admitted or denied. These are hypothetical potential immigrants who have no valid injury-in-fact. Trump’s order will not affect those who were already granted immigrant visas, but only those seeking them after the effective date. It also exempts children of U.S. citizens seeking entry, children under 18 coming here alone, or parents of immigrants who are sponsored.
To give standing in this case would mean that someone has right to sue to enter the country or have someone here sue on their behalf when they have never even been here or been denied entry. There is no valid case. Simon is simply ruling on a policy he disagrees with in the abstract, a power judges simply do not have.
Moreover, even if 7.8 billion people have a right to sue after being denied entry, none of the plaintiffs have yet been denied. The case, even a valid one, would not be ripe yet.
Now let’s turn to the merits. Simon absurdly believes that Congress did not authorize the president to factor in lack of health insurance as an indication of an alien who will likely be a public charge. "Congress has spoken directly to the circumstances in which an individual may be deemed to become a ‘financial burden’ to the United States and has rejected the Proclamation’s core premise,'' Simon wrote in an incoherent 18-page political polemic. The upshot of his ruling is that Congress authorized the president to take into account age, health, family status, assets, resources, education, and skill, but not health insurance status.