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It's hard to say when a chain e-mail has reached critical mass. Although we'd seen one from former attorney Michael Connelly floating around for months, we never weighed in on it. The chief claim in the e-mail is that the Democrats' health care plan is unconstitutional, which is a matter of opinion, not fact. Also, we'd dealt with many of the other issues raised in the e-mail. And it's an e-mail that was penned in August.
The thing is, we are still getting lots of readers sending it to us, asking us to fact-check it. It's clearly still in high circulation.
We've decided that critical mass has been reached.
And so we're revisiting several claims in the e-mail. In this item, we will address the claim that HR 3200, "The Affordable Health Care Choices Act of 2009," would provide "free health care for illegal immigrants."
It's hardly a new charge. You may recall U.S. Rep. Joe Wilson, R-S.C., famously yelling "You lie!" during a joint session of Congress when President Barack Obama said the reforms Democrats were proposing would not apply to those who are in the United States illegally.
In an item we wrote then, we noted that, in fact, the House bill specifically stated that "undocumented aliens" would not be eligible for credits to help them buy health insurance, in Section 246 on Page 143.
Still, Wilson and Connelly and others argued the bill did not spell out verification procedures strong enough to ensure that illegal immigrants couldn't access the health care plan.
"There are no provisions for enforcing it," Connelly told us in an interview on Jan. 20, 2010. "The loophole is too big."
Others have made the same criticism. The anti-immigration group Federation for American Immigration Reform argued that illegal immigrants would be permitted to purchase insurance on the national health insurance exchange because the bill does not include a mechanism for verifying citizenship. So, the logic goes, illegal immigrants would have the chance to purchase insurance in the public option, a government-run health care plan that would offer basic coverage at a low price.
FAIR also argued for more robust verification measures for the affordability credit and making sure that illegal immigrant parents won't be able to receive coverage if their citizen children are eligible.
FAIR had a point that illegal immigrants would likely be able to buy insurance on the national health insurance exchange. We didn't see anything in the bills that would hinder that. A Congressional Research Service report issued Aug. 25, 2009, confirmed our observation. The House bill "does not contain any restrictions on noncitizens participating in the Exchange — whether the noncitizens are legally or illegally present, or in the United States temporarily or permanently," the report said.
But buying insurance on an exchange is different from getting free health care, as Connelly's e-mail suggested. We're not aware of any particular restrictions that stop illegal immigrants from buying private insurance now.
We should note that while Connelly's e-mail references HR 3200, the House version of the bill in play when Connelly wrote his e-mail in August, it's not the bill that the House ultimately passed.
According to Connelly, the version ultimately passed by the House (3962) is even worse because it has lower standards than the version in the summer. The version that passed only requires that people be residents of the United States in order to be eligible for the health care exchange. One could simply provide an electric bill to clear that hurdle, he said.
We checked the bill and found that Connelly is right about the language that says people have to be residents of the United States to be eligible.
But we also found language similar to the older bill. Section 34, titled "No federal payment for undocumented aliens," states unequivocally, "Nothing in this subtitle shall allow Federal payments for affordability credits on behalf of individuals who are not lawfully present in the United States." And Sec. 1786 prohibits Medicaid and CHIP payments to "individuals who are not lawfully present in the United States."
We further note that if the tax credits are administered through the Internal Revenue Service, there would be built-in scrutiny. For instance, if a system were set up for taxpayers to declare insurance expenses and then receive a refund or a rebate, illegal immigrants couldn't obtain coverage, "because illegal immigrants do not have legitimate Social Security numbers," Marc Rosenblum, a senior policy analyst with the Migration Policy Institute, a group that is generally pro-immigration, told PolitiFact back in September when this issue was hot. "Screening out illegal immigrants through the tax system would prevent them from obtaining health care-related subsidies."
In addition, language in the House bill provides clear authority for the new government official who would run the exchange to set up that verification, as the Congressional Research Service report notes.
Rosenblum concurs. "The commissioner could enforce these restrictions in one of two ways: through document- and database-based screening requirements as in the Medicaid system, or by reimbursing health care expenses through tax refunds," Rosenblum said.
It's one thing to argue that the bill lacks adequate verification procedures (which is certainly debatable). It's another to claim if the those procedures aren't stringent enough, that the bill would provide free health care to illegal immigrants. Especially when the bill specifically states there can be no federal payments to undocumented aliens. That was in 3200 when Connelly wrote his e-mail, and it's in the bill the House ultimately passed. We rate this claim False.
Michael Connelly's Web site, "The Truth About the Health Care Bills"
Cornell University Law School, The Constitution of the United States of America
PolitiFact, "Abortion and the Baucus health care bill," by Robert Farley, Sept. 21, 2009
CNS News, "Reid Introduces Senate Health Bill That Mandates Federally Subsidized Abortion," by Terence P. Jeffrey, Nov. 19, 2009
FactCheck.org, "Health Care Overhaul: Constiutional?" by Viveca Novak, Oct. 2, 2009
Fort Myers News-Press, "Florida AG Bill McCollum says health care bill is unconstitutional," by Paul Flemming, Jan. 19, 2010
Los Angeles Times, Opinion: "Constitutional objections to Obamacare don't hold up," by Akhil Reed Amar, Jan. 20, 2010
House Rules Committee Web site, HR 3962
House Energy and Commerce Committee, The Capps Amendment to HR 3200
PolitiFact, "Boehner says Democrats' health care plan would subsidize abortions," by Robert Farley, Aug. 7, 2009
New York Times, "Abortion Was at Heart of Wrangling," by David M. Herszenhorn and jackie Calmes, Nov. 7, 2009
Ed2go.com, Instructor Bio: Michael Connelly
Wall Street Journal, Opinion: "Mandatory Insurance Is Unconstitutional," by David B. Rivkin Jr. and Lee A. Casey, Sept. 18, 2009
Politico, "Health care reform is constitutional," by Erwin Chemerinsky, Oct. 23, 2009
Fox News, "Health Care Bill Could Face String of Legal Challenges," Dec. 22, 2009
Interview with Michael Connelly, Jan. 20, 2010
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