When President Barack Obama headed to the Capitol in 2009 to make a late-stage push for the Affordable Care Act, pleading to a joint session of Congress that the “season for action” had arrived, it wasn’t only Republicans who became affronted: then-Rep. Xavier Becerra, the California Democrat who had been lobbying for a more immigrant-friendly bill, listened as the president threw cold water on policies that they had been discussing for months.
“There are also those who claim that our reform effort will insure illegal immigrants. This, too, is false — the reforms I'm proposing would not apply to those who are here illegally,” Obama said.
Becerra had been pushing the White House for more health care for undocumented immigrants in the Affordable Care Act. He and some other Hispanic leaders engaged in repeated, lengthy debates with Obama, who was clear-eyed on the tough politics of offering more benefits to undocumented immigrants but hadn’t closed the door to the idea, according to lawmakers who attended the meetings.
As if to illustrate the fury with which the GOP regarded the issue of health care for undocumented immigrants, even Obama’s sharp disavowal of it prompted Rep. Joe Wilson (R-S.C.) to scream “you lie!” across the chamber.
Obama’s decision to cave in to the Wilson wing of the Republican Party was “more than disturbing,” Becerra told POLITICO at the time.
"I'm not sure what the White House is doing with this. Shadow boxing helps no one," he told the Associated Press.
Now, as Becerra prepares to assume a new role as Joe Biden’s health secretary, he will have the power to make public benefits for undocumented workers a reality. With a stroke of his pen, he could issue first-of-their-kind waivers reversing the very policy that Obama torpedoed and allowing undocumented immigrants, roughly half of whom are currently uninsured, access to state health care exchanges. There are some compelling policy reasons to do so — undocumented workers often contribute payroll taxes, and giving them benefits would not only help prevent the spread of infectious disease, but ease free-care burdens on hospitals.
But even as Becerra readies himself for the start of his confirmation hearing on Tuesday, the toxic politics that Obama bowed to remain strongly in force.
“His interest is in trying to get illegal aliens on government-subsidized health care options,” said an aide to outspoken Sen. Tom Cotton (R-Ark.), who has been lobbying colleagues against Becerra’s nomination. “If he was confirmed, he could weaponize HHS as a mechanism to push for open borders, and legitimize the illegal alien agenda that he’s pushing for. That has gotten some attention on the Hill.”
Then there’s the question of whether Democratic moderates, including Biden, are willing to back Becerra on the issue — or whether the White House, in an attempt to turn down the temperature, would ask Becerra to proceed cautiously on immigration issues.
Asked about Becerra’s past and current views, as well as how he would approach the new role of HHS secretary, Biden transition spokesman Andrew Bates said, "He will follow the law and pursue the President’s agenda to expand the Affordable Care Act and reduce costs for the American people."
Becerra declined interview requests.
Interviews with lawmakers suggest that there is wide, though hardly unanimous, support among Democrats to allow states to use federal funds to cover undocumented workers, either by allowing them to buy into the ACA exchanges without any government subsidy or, more controversially, to utilize Medicaid. But there are moderates, including some Hispanic lawmakers, who sense that any such moves would be flashpoints for grass-roots opposition.
“This issue about non-citizens receiving health care has been contentious for years,” said Rep. Henry Cuellar (D-Texas), a moderate. “U.S. Citizens should receive welfare and other benefits, that’s my position and my position is what helps Democrats. If you’re undocumented, you shouldn’t be getting health care and other benefits.”
“My district is heavily Hispanic, and I hear it,” Cuellar added. “‘You know congressman, you can’t let those undocumented people get assistance — we’ve got a lot of people here who need help. There’s long lines at the food banks.’ I hear that all the time.”
But interviews the 15 Becerra friends, colleagues, and allies, as well as health care experts, suggest that health care for undocumented immigrants is an issue close to the heart of the 63-year-old son of a Mexican immigrant mother who, despite a diplomatic demeanor, can be forceful in pushing issues that align with his value system.
A POLITICO review of his 24-year House career and four years as California attorney general found that Becerra has repeatedly advocated for undocumented immigrants to have more access to health care and other government benefits, whether through Medicaid or Obamacare.
“He’s one of those individuals that had exceedingly deep convictions about the need to cover the undocumented individuals in all of our communities,” said former Rep. Charles Gonzalez (D-Texas), who worked with Becerra during the Obamacare debate. In the case of the health care bill, Gonzalez said, “It did not make any sense not to, as long as they went ahead and paid for the coverage.”
Ultimately, the Affordable Care Act shut undocumented immigrants out of both receiving government-subsidized health insurance and buying any insurance on the new exchanges.
Soon after Obama’s speech to Congress in September 2009, Becerra was one of a handful of lawmakers who had a heated meeting on the issue with Obama in the Oval Office.
“[Obama’s team] were there to tell us they weren’t going to be able to do it,” said Gonzalez, the Texas Democrat. “We walked out, and people were frustrated and still upset.”
If confirmed as HHS chief, Becerra would have multiple avenues to assist undocumented immigrants, according to health care specialists. The least complicated path would be to give them access to the Obamacare exchanges without any government subsidies. He could also encourage states to expand in-state Medicaid programs to cover undocumented immigrants, which California is in the process of doing. Or he could choose to expand health insurance for DREAMers, who have temporary legal status in the United States but do not qualify for government health care programs or other assistance.
That’s if Republicans in Congress don’t manage to grind Becerra’s nomination to a halt in the narrowly Democratic Senate, and if Biden — once thought a moderate on immigration — doesn’t waver on his campaign-trail pledge to allow undocumented immigrants to buy into a “public option”-like health plan.
Becerra’s friends and former colleagues say that while he would follow Biden’s edicts, he would at the very least be a committed advocate for undocumented workers.
“He wants everyone who works hard to have the opportunity to get ahead, and part of that is access to health care,” said a former Becerra aide. “His touchstone is always that our nation is built on immigrants, and people come to this country to make a better life for their families.”
* * *
In discussing health care, Becerra often analogizes the plight of undocumented immigrants to the struggles of his own family.
When, in 2019, he was asked to prioritize the more than 100 lawsuits he filed as Golden State AG challenging the Trump administration on topics from gun control to the Endangered Species Act, Becerra cited two: Reversing Trump’s efforts to dismantle the Affordable Care Act and his elimination of DACA, which gives undocumented immigrants who arrive in the U.S. as children temporary residency.
DACA recipients, he told California Healthline, “had to go through so much like my parents did. So, it’s very personal.”
Growing up, Becerra’s father worked as a farmer and, later, a construction worker, a union job that gave his family health insurance. He remembers the vital importance of having insurance after his mother suffered a miscarriage and had to go to the hospital.
“We knew we could go to the doctor — and everybody should know that,” Becerra said in his interview with California Healthline. “For me, health care is a right. I’ve been a single-payer advocate all my life.”
After filling out a high school classmate’s discarded application to Stanford, Becerra got in — and earned both a bachelor’s degree and law degree. He won election to the California state assembly at the age of 32 after a boss and mentor in the legislature encouraged him to run. Two years later, in 1992, Becerra won election to Congress and began a nearly quarter-century stint in the U.S. House representing multiple Los Angeles-area districts.
He arrived in Washington with his fellow Democrats in the 36th year of unbroken control of the House, but the political tide was about to turn against him. Republicans swept Congress in 1994 and turned their focus to then-House Speaker Newt Gingrich’s “Contract with America” bills. These included more restrictive immigration policies and sweeping welfare-reform legislation that placed new bans on legal immigrants’ access to welfare, food stamps and other programs during their first five years in the country.
Becerra worked on developing a Democratic alternative and testified against the GOP-proposed immigration measures in front of the House Ways and Means Committee, arguing that “cutting benefits to immigrants is not welfare reform, rather it is a budget-cutting measure that is certain to adversely impact” immigrants and the states where they live.
The Republican-backed welfare bill passed, including the restrictions that Becerra had cautioned against. But within a year, Becerra was elevated to two significant posts in the House: He became a member of the powerful Ways and Means Committee and chair of the Congressional Hispanic Caucus. And he used those roles to lobby the Clinton administration on immigration policy, pushing the president to restore funding that had been stripped in the welfare law and to bring more Latinos into his cabinet.
By the time Obama took office in 2009, Becerra had become a key member of House leadership and close friend of House Speaker Nancy Pelosi — as well as a possible successor to her. At the time, Becerra was seen as a wonky and thoughtful, if sometimes too eager to placate his various allies in the House, garnering skepticism from some Hispanic lawmakers who dubbed him “Mr. Stanford” for his intellectual approach.
But when he went fiercely to bat for immigrants during the fight over Obama’s health care bill, Becerra earned new loyalty from his colleagues, according to a former House aide who was involved in the ACA negotiations.
His relentless campaign to change lawmakers’ stances on the immigration issue sparked a tiff between Becerra and Pelosi, who told colleagues, "I understand I have tire tracks on my back from Xavier throwing me under the bus,” according to Congressional Quarterly.
But Hispanic lawmakers saw Becerra in a new light.
“Members became more appreciative of the roles he was taking. Because he did have the [Hispanic] caucus’ back,” said the aide. “I don’t think people really appreciated that until the rubber hit the road. He took on positions that leadership wasn’t on board with.”
Only a year later, after Republicans regained control of the House, Becerra would again have to navigate between ensuring benefits for immigrants and moving a larger piece of legislation along. This time, he was a member of a “Gang of Eight” House lawmakers trying to come up with a workable proposal for comprehensive immigration reform, a political quagmire that has proved unbridgeable in Washington for decades.
Working in secret over the course of months, the group of four Democrats and four Republicans tried to sketch out what an immigration compromise might look like. The president was spending much of his time focused on the Democrat-led Senate where a more high-profile “Gang of Eight” effort was taking place — but House lawmakers felt any Senate bill would be too liberal to pass the GOP-controlled chamber.
In the spring of 2013, the group had hashed out many of the biggest stumbling blocks, according to people involved in the effort. But a few topics, namely health care, divided them.
“It was the ACA that became the stumbling block,” said then-Rep. Luis Gutiérrez (D-Ill.), one of the Democratic negotiators. “That was what broke down our conversation.”
Then-Rep. Raúl Labrador, a Republican from Idaho, felt strongly that taxpayers should not have to foot any bills for immigrants who are in the country seeking citizenship. And he was concerned about the possibility that immigrants could rack up bills in emergency rooms — shouldn’t immigrants, he argued, be responsible for their own health care?
One solution Labrador proposed: Change the ACA so that immigrants could buy cheap “catastrophic” health care plans designed to cover them in an emergency -- a no-go for Democrats, who did not support such insurance. By mid-May, the group was frustrated, and Labrador threatened to quit if they couldn’t solve the health care conundrum soon. Rep. Zoe Lofgren (D-Calif.) put forward a proposal: vague language saying immigrants need to pay for their own insurance and would be ineligible for citizenship if they relied on the government.
Becerra, who was also responsible for relaying the group’s decisions to Pelosi, refused to sign on. Within days, Labrador announced he would write his own bill. The Gang of Eight had collapsed.
* * *
As Joe Biden started his presidency, he issued half a dozen executive orders to begin to unwind the hundreds of hardline immigration policies put into place by the Trump White House, like building a border wall. He also started to advance his own plans, which include raising Trump’s cap on refugees. And Biden rolled out his own immigration reform plan, which would provide a path to citizenship for undocumented immigrants.
But the political parties have only diverged on immigration issues in recent years, making benefits like health care more difficult to navigate than ever.
Republicans, who drifted to the right on immigration in recent years with Trump, argue that offering government-subsidized health care or food stamps for undocumented immigrants only encourages more people to come to the U.S. illegally. Providing benefits to recently arrived, legal immigrants is also contentious: Trump tried to curb such policies in 2018, when his administration issued a rule that would bar immigrants who have taken government services from gaining citizenship. As California AG, Becerra led states in suing to block the rule, which remains in place.
Democrats’ moderate wing is shrinking, and progressives like Becerra are pushing forward an argument that many undocumented immigrants work in the United States and pay taxes, so should be able to benefit. A little government assistance can go a long way, they say: With health care, for example, giving people access to doctors through Medicaid and state exchanges could prevent them from later taking trips to the emergency room, which can cost patients and the government thousands of dollars.
Still, the advocates have made little progress on Capitol Hill. In early February, 58 senators — including former presidential candidate John Hickenlooper (D-Colo.) and Sen. Gary Peters (D-Mich.), who chairs the Democratic Senatorial Campaign Committee — voted in favor of banning undocumented immigrants from receiving stimulus checks in a nonbinding vote, for example.
“This is the third rail in politics,” said Randy Capps, director at the Migration Policy Institute. “It’s such a polarizing issue, and you have a number of moderate Democrats [from] Republican or purple states that fear the Republican voters or moderate voters in their states would really make an issue out of it, which they would. They did with the Affordable Care Act.”
Today, undocumented immigrants cannot participate in federal Medicare or Medicaid, use the CHIP insurance program for children, or buy insurance through the Obamacare exchanges. But states can — and do — use their own money to expand access to health care.
In recent years, at least six states including New York, Massachusetts and California have expanded their in-state health programs to cover children regardless of their immigration status, and California has made moves to expand its coverage to seniors. (Such expansions are costly: When California expanded its in-state Medicaid program to cover people up to age 25, the state budgeted $98 million for the first year alone.)
California also asked the federal government for a waiver from the ACA that would allow the state to bypass the ban on undocumented immigrants participating in the state’s health exchange if they pay the unsubsidized cost of the insurance. The waiver request, which was filed at the end of Obama’s presidency and withdrawn after Trump took office, was supported by California lawmakers including Becerra.
“Everyone who works hard to build our country up, as so many immigrant families do, deserves access to quality and affordable health care. This provision does not cost the federal government a dime and it’s a no-brainer to get this waiver approved,” Becerra said at the time.
HHS never confirmed California’s request — and some experts are not sure if it would be legal to do so. But if confirmed as secretary, Becerra could put in place a range of immigrant-friendly policies at the department, including potentially signing off on waivers like the one California requested five years ago.
Becerra could also encourage, but not mandate, states to adopt policies like California’s that cover some undocumented immigrants on Medicaid using their own funds. The federal government could try to expand funding for community health clinics, which provide some of the only coverage for undocumented immigrants in need of preventative care. And Becerra could be instrumental to debates over whether DACA recipients, who are quasi-legal residents, should be able to participate in programs like Medicaid in future years, another legal grey area that is increasingly up for debate.
Former Rep. Sander Levin (D-Mich.), a close friend of Becerra’s in Congress, said that as Health and Human Services secretary he anticipates Becerra to resume a role he played in Congress as a “builder.”
“He had to, as attorney general, oppose the policies of Trump and take the lead, and he did that very well,” Levin said. “Now, his role is different.”
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