North Dakota joins Kansas-led suit challenging health insurance for DACA recipients

TOPEKA — Kansas Attorney General Kris Kobach filed a lawsuit Thursday on behalf of 15 states in an attempt to stop President Joe Biden from expanding health care access to DACA recipients by making them eligible for participation in the Affordable Care Act's insurance marketplace.

Kobach, a Republican who built a political career concentrated on legal issues tied to undocumented migrants, was joined in the federal lawsuit by attorneys general in Alabama, Idaho, Indiana, Iowa, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, South Carolina, South Dakota, Tennessee and Virginia.

Kobach challenged the federal rule issued by the U.S. Department of Health and Human Services that would make people who arrived in the United States as children, sometimes known as Dreamers, eligible for taxpayer-subsidized health plans under the ACA. The Biden administration's initiative would enable DACA, or Deferred Action for Childhood Arrivals, to be part of the health insurance marketplace on Nov. 1.

The lawsuit urged the federal court to postpone the effective date of the HHS rule pending completion of the case. It also sought to vacate the rule as "both contrary to law and unreasonable, arbitrary and capricious."

"Illegal aliens shouldn't get a free pass into our country," said Kobach, using an offensive term for undocumented residents. "They shouldn't receive taxpayer benefits when they arrive, and the Biden-Harris administration shouldn't get a free pass to violate federal law. That's why I am leading a multistate lawsuit to stop this illegal regulation from going into effect."

Kobach said in the U.S. District Court complaint filed in North Dakota that the administration of President Biden and Vice President Kamala Harris intended to violate a federal law forbidding government benefits from flowing to people who weren't citizens of the United States or were otherwise unlawfully in the country.

He said Congress limited eligibility for federal public benefits to certain "qualified aliens" in 1996. DACA recipients weren't included in the definition of qualified immigrants, he said. In addition, Kobach's filing said Congress restricted eligibility to participate in the ACA's qualified health plans to "citizens or nationals" of the United States or "aliens lawfully present in the United States."

"Indeed, eligibility for DACA requires unlawful presence in the United States," Kobach's petition said.

Xavier Becerra, the secretary of HHS, said when the final DACA rule was published in May the change could lead to 100,000 previously uninsured DACA recipients enrolling in health coverage through the marketplaces.

"HHS is committed to making health coverage accessible for DACA recipients — Dreamers — who have worked hard to live the American dream," Becerra said. "Dreamers are our neighbors and friends. They are students, teachers, social workers, doctors and nurses. More importantly, they are fellow Americans."

Kobach asserted the HHS rule would make as many as 200,000 DACA recipients eligible for health insurance through the marketplace. His total of DACA participants included 4,350 in Kansas and 2,550 in Missouri. In terms of other plaintiff states, the numbers ranged from 7,810 in Virginia, 7,450 in Indiana, 6,360 in Tennessee and 4,840 in South Carolina to 220 in New Hampshire, 130 in North Dakota and 80 in Montana.

Alabama Attorney General Steve Marshall said extending health insurance through the ACA to 3,460 DACA recipients in Alabama represented a new "assault on the American worker."

"First, this administration is demanding that hardworking Americans pay for someone else's college degree, then it forces them to pay for medical procedures that violate their beliefs, and now they want to dictate paying for health care for people who shouldn't even be in this country," Marshall said.

South Carolina Attorney General Alan Wilson said the lawsuit was necessary to derail the Biden administration's unconstitutional move to broaden the reach of Obamacare.

"I'm sympathetic to these people who didn't choose to be brought here," Wilson said. "However, this is yet another example of the Biden administration trying to do something it doesn't have the authority to do."