Keeping millions of illegal immigrants in the U.S. and virtually ensuring that they will cost American jobs

By ANDY PUZDER
Dec. 3, 2015 7:10 p.m. ET

The Justice Department last month asked the Supreme Court to review a preliminary injunction blocking the Obama administration from implementing the president’s immigration executive order, which would defer deportations for up to five million undocumented immigrants.

When President Obama announced his executive action, he acknowledged in his televised speech the concern that such immigrants “would take our jobs” and “stick it to the middle class.” He assured us that this is “not what these steps would do.” But he didn’t consider how this new edict would interact with his other legal inventions, namely ObamaCare.

The government’s petition says that the executive action intended to provide “work authorizations” so that undocumented immigrants could find jobs in the U.S. without working illegally for less than market wages, which might harm American workers. But wait: Employers aren’t required to offer ObamaCare coverage or subsidies to these immigrants. The statutory language in the Affordable Care Act says that only “lawful residents” are eligible, and the government’s petition specifically notes that the immigration action does not “confer any form of legal status in this country.”

In short, companies will be encouraged to hire these immigrants over U.S. citizens. ObamaCare requires employers to offer all full-time employees health insurance that meets the law’s standards. For businesses that offer health-insurance coverage, the government enforces this rule by imposing a penalty of up to $3,000 a year for each full-time employee who receives a federal subsidy, a proxy for each full-time employee who doesn’t receive compliant coverage. The penalty is triggered if a single full-time employee purchases coverage on the marketplace and receives a subsidy.

But none of this matters if your employees are immigrants freed up by Mr. Obama’s executive order. Companies could save $3,000 in penalties or the cost of insurance—about $3,300—for every one of these immigrants they employ over a U.S. citizen or lawful resident.

Suppose businesses subject to ObamaCare employ only 40%, or two million, of the up to five million immigrants covered by the president’s executive action. At $3,000 an employee, businesses would save about $6 billion a year. Companies already dealing with the added expense of operating in the Obama economy—burdened by regulations, high taxes and other barnacles—would find those savings hard to pass up.

The administration may yet find some justification for granting ObamaCare benefits to immigrants covered by the president’s executive action. The law’s 2,407 pages of text, backed up by more than 20,000 pages of regulations, are full of ambiguities and inconsistencies, leaving ample room for invention. Fixing this discrepancy may be the administration’s next tweak to ObamaCare.

But that would conflict with the president’s statement that he was not offering these individuals “the same benefits that citizens receive,” not to mention ObamaCare’s text. And it is hard to argue that Congress intended to grant ObamaCare benefits to a group of people who weren’t legally in the U.S. when Congress passed the law.

Exempting employers who hire these immigrants from the law’s penalties gives the immigrants a distinct market advantage over U.S. citizens. That flies in the face of the president’s statement that his executive action would not “stick it to the middle class” by allowing these individuals to “take our jobs.” It is also contrary to the government’s statement that the executive action would make it less likely that these undocumented immigrants hurt American workers by “illegally” working “for below market rates.” They could still work at below-market rates, only it would be legal.

All of this was inevitable. The root problem with ObamaCare is that one party rammed it through Congress without a single Republican vote, while the law’s supporters didn’t even read it, let alone vet it through congressional committees. As a result, ObamaCare as written was unworkable, and the administration has had to repeatedly amend it by constitutionally dubious executive fiat.

Now this flawed law is clashing with yet another constitutionally dubious executive action that the administration couldn’t be bothered to pass through the legislature. That’s one reason the Supreme Court should allow the existing injunction to stand and avoid the conflict.

But the immigration-ObamaCare nexus is only the latest example of how untenable and incomprehensible the Affordable Care Act is. The only real solution is to scrap the law and replace it with something that works. Republican candidates— Jeb Bush and Marco Rubio, for instance—have proposed just such market-based plans. Let’s hope one of those plans gets a chance to work.

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