Sunday, November 3, 2019

Trump Decree Barring Immigrants without health insurance blocked by Oregon Federal Judge

John Doe # 1, et al. V. Donald Trump as President, et al.
United States District Court for the District of Oregon
Case 3:19-cv-01743-SB Document 33 Filed 11/02/19  
TEMPORARY RESTRAINING ORDER
by  Michael H. Simon, District Judge

On October 4, 2019, the President of the United States issued Proclamation No. 9945, titled “Presidential Proclamation on the Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System” (the “Proclamation”). President Donald J. Trump directed that the Proclamation become effective at 12:01 a.m. eastern daylight time on November 3, 2019. On October 29, 2019, the U.S. Department of State issued a “Notice of Information Collection” for “Emergency Review” (the “Emergency Notice”), which was published in the Federal Register on October 30, 2019, and provided a comment period of less than 48 hours.

The Emergency Notice states that “to implement [the Proclamation] when it goes into effect on November 3, 2019,” consular officers “will verbally ask immigrant visa applicants covered by [the Proclamation] whether they will be covered by health insurance in the United States within 30 days of entry to the United States and, if so, for details relating to such insurance.” If the applicant says yes, “consular officers will ask for applicants to identify the specific health insurance plan, the date coverage will begin, and such other information related to the insurance plan as the consular officer deems necessary.” The Emergency Notice further adds that visa applicants will not be suspended “if they do not have coverage but possess financial resources to pay for reasonably foreseeable medical expenses.” It defines “reasonably foreseeable medical expenses” as “those expenses related to existing medical conditions, relating to health issues existing at the time of visa adjudication.”
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On October 30, 2019, seven U.S. citizens and a nonprofit organization (collectively, “Plaintiffs”) filed a nationwide class action complaint against the President, the U.S. Department of Homeland Security, the U.S. Department of Health and Human Services, the U.S. Department of State, and related Cabinet Secretaries (collectively, “Defendants”), challenging both the Proclamation and the Emergency Notice. Plaintiffs contend that the Proclamation is contrary to law. Plaintiffs also argue that the Emergency Notice is “arbitrary and capricious” under the Administrative Procedure Act (“APA”) and also fails to follow the “notice and comment” procedures required by the APA. On November 1, 2019, Plaintiffs filed a Motion for Temporary Restraining Order (“TRO”), seeking to preserve the status quo and prevent Defendants from implementing or enforcing the Proclamation, at least until after the Court can hear and decide a motion for preliminary injunction.

On Saturday, November 2, 2019, at 2:00 p.m. Pacific daylight time, the Court held a hearing pursuant to Rule 65(b) of the Federal Rules of Civil Procedure to consider Plaintiffs’ TRO motion. All parties appeared through counsel, although Defendants have not yet had an opportunity to submit their arguments in writing. At this early stage of the proceedings, the Court is satisfied that Plaintiffs have shown either a substantial likelihood of success on the merits or at least serious questions going to the merits regarding their arguments that the Proclamation and its plan of implementation and enforcement conflict with the “public charge” provisions in Congress’ Immigration and Nationality Act (“INA”) and related federal health care statutes.

Plaintiffs have also shown, at least at this stage of the litigation, serious questions going to the merits regarding whether the Emergency Notice was arbitrary and capricious and, thus, in violation of the APA. At this time, the Court declines to reach whether the Emergency Notice also violated the procedural “notice and comment” requirements of the APA. Further, Plaintiffs have shown, at least thus far, that they are likely to suffer irreparable harm in the absence of temporary relief, that the balance of hardships tips sharply toward Plaintiffs, and temporary relief is in the public interest.

Accordingly, Plaintiffs’ motion for TRO is granted, for a period not to exceed 28 days, to allow the parties sufficient time to brief and argue whether the Court should issue a preliminary injunction suspending the implementation and enforcement of the Proclamation until the issues presented in this lawsuit have been resolved on the merits
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