Trump’s immigrant health care proclamation is aimed at the wrong problem

“Give me your tired, your poor, your huddled masses yearning to breathe free, the wretched refuse of your teeming shore. Send these, the homeless, tempest-tossed to me …”

Thus recites the poem on the Statue of Liberty’s pedestal. President Donald Trump now seeks to add an asterisk to these lines, insisting that only those with health insurance be allowed in through the “golden door.” In a proclamation issued on Oct. 4, Trump suspended the entry of “aliens who will financially burden the United States health care system.” The proclamation states that an immigrant will be a financial burden “unless the alien will be covered by approved health insurance … within 30 days of the alien’s entry into the United States,” or has “the financial resources to pay for reasonably foreseeable medical costs.” Lawful permanent residents and certain other categories of visitors are excluded from the scope of the proclamation. 

Crucially, relatives of permanent residents and citizens would be covered by the proclamation. The burden of proof is on the visa applicant to show that he or she has adequate health care coverage or the ability to meet foreseeable medical costs. The proclamation lists a number of acceptable kinds of health care coverage — employer provided health care insurance, unsubsidized coverage, and travel insurance.

True to form, Trump’s proclamation has triggered angry denunciations from immigrant advocacy groups and political opponents. It has been labelled an “economic and racist attack,” and Rep. Alexandria Ocasio-Cortez (D-N.Y.) called it an example of “hypocrisy, xenophobia and barbarism” because the U.S. does not “offer guaranteed health care for *its own citizens,* yet wants to demand it from people of other national origins.” 

So, setting aside the politics, is Trump’s action truly racist and barbaric?

This proclamation would merely put the United States on par with other countries that mandate health care coverage for certain categories of immigrant visa applicants. For example, Australia requires many categories of visa applicants to show evidence of health insurance before granting a visa. The Australian government’s mandate for immigrants to provide evidence of health insurance is based on protecting its citizens from “public health and safety risks,” its desire to “control” welfare expenditure on “social security benefits, allowances and pensions,” and to ensure that citizens and lawful residents get adequate access to “scarce” medical services. 

Australia even mandates robust health checks for many categories of visa applications and denies visas to applicants with ongoing health concerns. Applicants with conditions such as tuberculosis or hepatitis B or C have to sign a “health undertaking” or be refused a visa.

Similarly, the United Kingdom mandates certain immigrants to pay a “health surcharge” prior to being granted a visa. This requirement applies to non-European Economic Area nationals and those seeking entry for work or study, and is in addition to private medical insurance. However, it is notable that the health care surcharge is affordable — about $439 (£400) per year for those seeking a work visa, and less for students. Therefore, when considered alongside an excellent National Health Service provision for all residents, the U.K.’s health cover requirement is not a deterrent to immigrants.

Other countries, including Ireland and New Zealand, also mandate medical insurance for visa applicants.

So, if Trump’s move to impose a health insurance requirement is “barbaric” and “xenophobic,” other progressive countries have gone there before him.

This is not to say that the proclamation is necessary — or even desirable. The U.S. immigration system has bigger problems than those created by medical insurance. For starters, Trump’s proclamation applies only to lawful immigrants, those applying for visas at U.S. consulates abroad. The migrant caravans, illegal border crossers, and the millions of illegal immigrants already in the country are not within the pale of the new health insurance requirements.

The problem with Trump’s proclamation is that it is aimed at the wrong problem. Although the idea may be sensible per se and common to other immigrant-friendly countries such as Australia and the U.K., those countries are distinguished by strong borders. Australia, for example, has extremely severe controls designed to keep illegal migrants out. Faced with the influx of migrants entering by boats, the government unveiled “Operation Sovereign Borders” in 2013 to ruthlessly intercept and turn back illegal arrivals. To begin with, illegal arrivals were trivial by U.S. standards. In such a context, imposing health care insurance requirements makes sense — they provide a level playing field and mitigate against free-riding by those who have not contributed to the welfare system.

The problem in the U.S. is vastly different. The horse has already bolted — the border is porous and there are over 10.5 million illegal immigrants here. Health care is expensive for all but the wealthy. And there is scant evidence that legal migrants free-ride on medical benefits. This proclamation is unlikely to make any dent in the immigration system’s myriad problems. Au contraire, it will impose more burdens on those who follow the law and take the legal route to immigration. It will funnel more money to insurance companies, turn away migrants who bring valuable skills or might generate jobs by establishing the next Google, while doing nothing to prevent illegal immigration. 

Finally, it confers overly broad discretion on officials to make determinations about whether applicants possess financial means to meet foreseeable medical issues. Officials without expertise and capabilities will interpret the mandate in highly variable ways. Lawful immigrants will be at the mercy of purely arbitrary action in an application lottery — undermining the United States’ commitment to equality, due process, fairness and the rule of law.

In the end, the proclamation is tantamount to shooting at a mosquito when being attacked by a herd of elephants. You may kill the mosquito, but the herd will prevail.

Sandeep Gopalan (@DrSGopalan) is vice chancellor and executive vice president of academic affairs at Piedmont International University in North Carolina. He previously was a professor of law and pro vice chancellor for academic innovation at Deakin University in Melbourne, Australia. He has co-chaired American Bar Association committees on aerospace/defense and international transactions, was a member of the ABA’s immigration commission, and was dean of law schools in Ireland and Australia. He has taught law in four countries.