State Democrats forged ahead with legislation designed to fill out Covered California’s enrollment ranks with unlawful and undocumented immigrants. 

Following the state Senate, the Assembly has “passed a measure that would remove a critical barrier to Covered California and allow all Californians to access the state health insurance marketplace, regardless of immigration status,” as State of Reform noted. The legislation, introduced as Senate Bill 10 by state Sen. Ricardo Lara, D-Bell Gardens, “would authorize the state to apply for a federal waiver that would allow undocumented immigrants to buy unsubsidized health coverage through Covered California.”

“Currently, undocumented immigrants are barred from using the state marketplace under the Affordable Care Act even when using their own money and instead must go directly to a broker or health plan to purchase health insurance. During its April board meeting, a Covered California staff report gave the green light to pursue this waiver from the federal government, and is now awaiting direction from the Legislature and governor.”

Republican rollover

Despite massive Republican resistance to the implementation of Obamacare, with a “repeal and replace” approach adopted by elected officials at the state and federal level, California’s GOP quietly folded in the face of the expansion plan. SB10 sailed through both houses of the Legislature with bipartisan support, as the San Jose Mercury News recalled.

Prior to the vote, key Republicans tried to keep a low profile. Leaders “in both legislative chambers declined to comment on whether the bill has enough support to pass,” according to CALmatters. “But a Republican strategist said the California GOP might be more likely to support the measure than its national counterpart, to avoid ceding the state’s Latino vote to the Democrats.”

The ins and outs of the complex Affordable Care Act have lent some circumstantial evidence to the notion that, despite President Obama’s claims to the contrary, at least some enrollment by the undocumented was envisioned or prepared for. An ACA provision “called the ‘innovation waiver’ allows states like California to change portions of the law as long as the state makes coverage available to more people and as long as the federal government doesn’t get stuck footing the bill,” reported Fox News. And though the impact of that population on Covered California has not been fully estimated, it would be significant: Lara suggested nearly 400,000 unlawful immigrants “would be eligible to receive health insurance,” according to the channel.

Federal hurdles

But the political landscape has become uncertain enough at the federal level to create an extra layer of difficulty — and urgency — for Lara and his allies. “The proposal needs federal approval, an involved bureaucratic process that could be thwarted under a new presidency. So California advocates are acting swiftly to get their application to President Obama before he leaves office, and to do so must win support from at least a few California Republican lawmakers,” Capital Public Radio noted. “Lara put an urgency clause on the bill, which requires a two-thirds majority vote to pass the Legislature. At least one Republican state senator has indicated his support” — Andy Vidak, R-Hanford — “a cherry grower in the Central Valley’s Kings County, which has a 53 percent Latino population.”

Even with adequate Republican support for urgency, however, SB10 could be stymied inside the Beltway. Public comment review requirements left some analysts skeptical that the new rules could be approved before a change in administrations, CALmatters reported. “And even if the proposal works its way through that maze and is reviewed by the Obama administration, he said, it may not be approved because of current federal guidelines. The U.S. Department of Health and Human Services has strict rules for modifying the Affordable Care Act marketplaces. They might have been put in place to avoid creating a precedent that opens the door to future changes the current administration would deem” problematic.

Notching another victory against Democrats to his left on spending, Gov. Jerry Brown rebuffed party legislators pushing him to add last-minute items to the state’s budget.

“The final budget is $61 million more than Brown’s proposal in May,” the San Francisco Chronicle reported, “with most of the compromises reached in Tuesday’s deal with legislative leaders made through savings identified in the budget.”

The news was widely interpreted as a failure of nerve by legislative negotiators, who dutifully joined Brown to unveil the deal at a high-profile news conference. As the San Jose Mercury News surmised, “it quickly became clear that the Democratic leaders had blinked first — and just a day after the Legislature passed a more expensive version of the budget to express its ‘values.'”

But Democratic lawmakers claimed some important moral victories. Setting the stage for budgets to come, they secured funding for a host of entitlements and social services, many of which were groundbreaking in scope or purpose. Among states, for instance, California became “the first in the nation to offer state-subsidized health care to children who are in the country illegally,” the Wall Street Journal observed, and created “the state’s first income-tax credit for the working poor.”

More dollars were also allocated toward public education, preschool and childcare.

A governor on top

The outcome of the closely-watched negotiations underscored that Jerry Brown’s power in California remains uncontested. “In announcing the agreement, Brown said the deal preserves his general fund revenue forecast and overall spending levels,” the Sacramento Bee reported, calling it “a major concession by legislative leaders to the fourth-term governor.”

“Total general fund spending of $115.4 billion was only $61 million more than Brown originally proposed, not the $749 million more that legislative Democrats wanted. The total budget, including all funds, was set at $167.6 billion.”

Among the proposals Brown did away with were higher Medi-Cal reimbursements and permission for childcare workers to unionize, according to the Journal. But in addition to health subsidies for unlawfully present children, Brown approved increases for in-home caregivers. “The governor said he was able to fund those programs without adding to state spending by finding savings in a variety of other programs,” noted the Journal, “including fixing an accounting error in health spending.”

Even Brown’s concessions came with strictures. While Democrats across the negotiating table demanded over $400 million for 27,000 new low-income preschool or childcare opportunities, they had to settle for $265 million and some 14,000 slots, according to the Mercury News. “Brown also agreed to use $226 million in one-time money to restore a 7 percent reduction in service hours for recipients of state-funded home care.”

Pent-up politics

Lingering disagreement

For now, however, restive Democrats will have to go toe to toe with Brown at least one more time. “In addition to special sessions on roads and health care funding, Brown and legislators have yet to resolve a dispute over how to spend hundreds of millions of dollars in cap-and-trade revenue,” the Bee reported. “The Senate’s Democratic leaders are seeking about $500 million more in cap-and-trade spending than Brown proposed in May, mostly for greenhouse gas reduction-related programs benefiting disadvantaged communities.”

Earlier in the month, the contending sides tabled the controversy. But even that disagreement did not extend to the over $1 billion earmarked for transit costs including Gov. Brown’s prized high-speed rail project.

A tale of two controversies

“The fate of the citizen redistricting commission hangs most directly in the balance, pending a decision by the court in June about whether such panels are legally allowed to determine congressional districts,” the Los Angeles Times reported. “If the court strikes down independent commissions, it could set off a scramble in the Legislature to redraw California’s congressional map.”

In another case, the Supreme Court could make even bigger waves next year with a ruling on who must be counted within a state during the district-drawing process. As Yale law professors Bruce Ackerman and Ian Ayers noted, the court will face “two basic options. It can stick with what most states do now and require each district to contain an equal number of inhabitants: This will favor urban Democratic areas with many immigrants and children. Or it can instead insist that districts include an equal number of eligible voters, and thereby favor rural Republican regions.”

High stakes

For those working to legalize unlawful immigrants, much was placed at stake by the court’s decision to take up the case. If the court were to rule against counting immigrants with partially legal or illegal status, the political balance of power in California would transform overnight. What’s more, the push to fully legalize all immigrants would hit a substantial and symbolic obstacle.

But restricting statewide head counts to eligible voters only — a much smaller population than the one excluding unlawful immigrants — could send political shock waves through California. As the Washington Post confirmed, “high-diversity districts like the 40th in Los Angeles County have substantially fewer eligible voters than the whiter, rural section of the state represented by the northern 1st District. Measured by population, the two districts are equal in size. Measured by eligible voters, the northern 1st District is twice as big as [the] LA-area’s 40th[.]”

State Senate Leader Kevin de Leon, D-Los Angeles, bridled at the implications of that shifted standard. Referring to the time period before 1964, when the court ruled districts had to be approximately equal, de Leon noted that “Los Angeles County and its 6 million people […] had the equivalent voting power in our state Senate as a rural district with barely 14,000 people.”

Hoping to prevent that kind of change, Ackerman and Ayers have argued that Section 2 of the 14th Amendment should determine the outcome, since its language clearly indicates that districts “shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.” But even if the court shies away from leaving uncounted all residents ineligible to vote, the exclusion of native Americans could be interpreted as a logical precedent for excluding immigrants lacking a formally and fully legal relationship with the federal government and the state within which they reside.

Partisan heat

Until now, the Supreme Court has not seen fit to intervene so extensively in the way redistricting is done. From a nonpartisan standpoint, the plaintiffs’ case offered an opportunity for the court to clarify an area of constitutional law that had been left unspecified.

Partisan standpoints, however, have prevailed to date. As the New York Times observed, the headcount case originated in “a challenge to voting districts for the Texas Senate,” brought by two voters “represented by the Project on Fair Representation, the small conservative advocacy group that successfully mounted [an] earlier challenge to the Voting Rights Act. It is also behind a pending challenge to affirmative action in admissions at the University of Texas at Austin.” That pedigree has gone a long way to shape expert reaction to the case.

Challenging detention

Under the Obama administration, current policy has permitted the detention of mothers and children who claim they immigrated to escape violence in their country of origin; but as the Sacramento Bee reported, U.S. District Judge Dolly Gee in California has handed down a so-called tentative ruling that would invalidate the practice. Gee held that federal policy “violates parts of an 18-year-old court settlement regarding the detention of migrant children, according to memos that outline the tentative ruling.”

“The tentative court decision could have sweeping implications, forcing U.S. Immigration and Customs Enforcement to make some difficult choices: release undocumented women and children into the community; release the children but detain the mothers; or completely overhaul the way the agency shelters the migrants until their cases are heard by immigration courts.”

The potential overhaul came amidst growing criticism of federal detention policy in California. “Even as the number of immigrants caught illegally crossing the U.S.-Mexico border has fallen to the lowest levels since the 1970s,” the Los Angeles Times reported, “the federal government has increased spending on immigrant detention, filling 14,000 more beds last year than it did in 2006.” According to the Times, civil liberties and activist groups have complained that much of the expansion has involved contracting out detention to private firms. The country’s newest facility, in Bakersfield, came online with Geo Group, an independent prison company, handling operations.

Switching out workers

At the same time, federal immigration rules have come under fire in California from advocates for citizens themselves. One group of plaintiffs recently brought suit against the Department of Homeland Security over its new work permit policy. In addition to visas, the Daily Caller reported, DHS has decided to grant work permits to immigrants’ spouses — an estimated 100,000 of them, if all those eligible apply for the benefit.

“The complaint, filed by the Immigration Reform Law Institute on behalf of the displaced workers, alleges DHS does not have the authority to make the rule, and that the rule violates federal labor protection law. IRLI is asking the judge to halt implementation of the rule until the case is heard.”

A statewide agenda

Despite the turbulent environment, state legislators have tried to build on the protections for unlawful immigrants included in president Obama’s recently implemented executive actions. Earlier this month, Sacramento Democrats unveiled a broad package of legislative proposals designed to provide an interlocking suite of benefits to California residents who immigrated unlawfully.

As the Orange County Register noted, if passed, the new laws would beef up penalties for abuse of the E-Verify system, increase protections against fraudulent immigration attorneys and bar businesses discrimination over immigration status, citizenship or language. What’s more, the legislation would extend Medi-Cal coverage to all Californians, regardless of their legal standing as immigrants.

In an effort to build some internal management of the new proposed measures into California law, state Democrats also pushed to include an “Office of New Americans” within the governor’s office, tasked to smooth the regulatory and social road for beneficiaries.

California’s extension of drivers license privileges to unlawful immigrants was worked out in close consultation with regulators in Washington. But critics warned that the new measures threatened to conflict with known federal law. At the Daily Beast, Reuben Navarette observed that the Immigration Reform and Control Act, passed in 1986, “made it a federal crime to knowingly hire an illegal immigrant. Now California wants to make it a state crime to not hire one? Employers can now pick their poison: They can violate one law or the other.”

Meanwhile, Navarette noted, the Medi-Cal proposal lacks a source of funding, despite likely costs in excess of $1 billion.