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Welcome to Covid Court, where POLITICO’s Renu Rayasam issues rulings on how to get through the pandemic without losing your mind.

Soon after Obama’s speech to Congress in September 2009, Becerra was one of a handful of lawmakers who had a heated meeting on the issue with Obama in the Oval Office.

“[Obama’s team] were there to tell us they weren’t going to be able to do it,” said Gonzalez, the Texas Democrat. “We walked out, and people were frustrated and still upset.”

If confirmed as HHS chief, Becerra would have multiple avenues to assist undocumented immigrants, according to health care specialists. The least complicated path would be to give them access to the Obamacare exchanges without any government subsidies. He could also encourage states to expand in-state Medicaid programs to cover undocumented immigrants, which California is in the process of doing. Or he could choose to expand health insurance for DREAMers, who have temporary legal status in the United States but do not qualify for government health care programs or other assistance.

That’s if Republicans in Congress don’t manage to grind Becerra’s nomination to a halt in the narrowly Democratic Senate, and if Biden — once thought a moderate on immigration — doesn’t waver on his campaign-trail pledge to allow undocumented immigrants to buy into a “public option”-like health plan.

Becerra’s friends and former colleagues say that while he would follow Biden’s edicts, he would at the very least be a committed advocate for undocumented workers.

“He wants everyone who works hard to have the opportunity to get ahead, and part of that is access to health care,” said a former Becerra aide. “His touchstone is always that our nation is built on immigrants, and people come to this country to make a better life for their families.”

* * *

In discussing health care, Becerra often analogizes the plight of undocumented immigrants to the struggles of his own family.

When, in 2019, he was asked to prioritize the more than 100 lawsuits he filed as Golden State AG challenging the Trump administration on topics from gun control to the Endangered Species Act, Becerra cited two: Reversing Trump’s efforts to dismantle the Affordable Care Act and his elimination of DACA, which gives undocumented immigrants who arrive in the U.S. as children temporary residency.

DACA recipients, he told California Healthline, “had to go through so much like my parents did. So, it’s very personal.”

Growing up, Becerra’s father worked as a farmer and, later, a construction worker, a union job that gave his family health insurance. He remembers the vital importance of having insurance after his mother suffered a miscarriage and had to go to the hospital.

“We knew we could go to the doctor — and everybody should know that,” Becerra said in his interview with California Healthline. “For me, health care is a right. I’ve been a single-payer advocate all my life.”

After filling out a high school classmate’s discarded application to Stanford, Becerra got in — and earned both a bachelor’s degree and law degree. He won election to the California state assembly at the age of 32 after a boss and mentor in the legislature encouraged him to run. Two years later, in 1992, Becerra won election to Congress and began a nearly quarter-century stint in the U.S. House representing multiple Los Angeles-area districts.

He arrived in Washington with his fellow Democrats in the 36th year of unbroken control of the House, but the political tide was about to turn against him. Republicans swept Congress in 1994 and turned their focus to then-House Speaker Newt Gingrich’s “Contract with America” bills. These included more restrictive immigration policies and sweeping welfare-reform legislation that placed new bans on legal immigrants’ access to welfare, food stamps and other programs during their first five years in the country.

Becerra worked on developing a Democratic alternative and testified against the GOP-proposed immigration measures in front of the House Ways and Means Committee, arguing that “cutting benefits to immigrants is not welfare reform, rather it is a budget-cutting measure that is certain to adversely impact” immigrants and the states where they live.

The Republican-backed welfare bill passed, including the restrictions that Becerra had cautioned against. But within a year, Becerra was elevated to two significant posts in the House: He became a member of the powerful Ways and Means Committee and chair of the Congressional Hispanic Caucus. And he used those roles to lobby the Clinton administration on immigration policy, pushing the president to restore funding that had been stripped in the welfare law and to bring more Latinos into his cabinet.

By the time Obama took office in 2009, Becerra had become a key member of House leadership and close friend of House Speaker Nancy Pelosi — as well as a possible successor to her. At the time, Becerra was seen as a wonky and thoughtful, if sometimes too eager to placate his various allies in the House, garnering skepticism from some Hispanic lawmakers who dubbed him “Mr. Stanford” for his intellectual approach.

But when he went fiercely to bat for immigrants during the fight over Obama’s health care bill, Becerra earned new loyalty from his colleagues, according to a former House aide who was involved in the ACA negotiations.

His relentless campaign to change lawmakers’ stances on the immigration issue sparked a tiff between Becerra and Pelosi, who told colleagues, “I understand I have tire tracks on my back from Xavier throwing me under the bus,” according to Congressional Quarterly.

But Hispanic lawmakers saw Becerra in a new light.

“Members became more appreciative of the roles he was taking. Because he did have the [Hispanic] caucus’ back,” said the aide. “I don’t think people really appreciated that until the rubber hit the road. He took on positions that leadership wasn’t on board with.”

Only a year later, after Republicans regained control of the House, Becerra would again have to navigate between ensuring benefits for immigrants and moving a larger piece of legislation along. This time, he was a member of a “Gang of Eight” House lawmakers trying to come up with a workable proposal for comprehensive immigration reform, a political quagmire that has proved unbridgeable in Washington for decades.

Working in secret over the course of months, the group of four Democrats and four Republicans tried to sketch out what an immigration compromise might look like. The president was spending much of his time focused on the Democrat-led Senate where a more high-profile “Gang of Eight” effort was taking place — but House lawmakers felt any Senate bill would be too liberal to pass the GOP-controlled chamber.

In the spring of 2013, the group had hashed out many of the biggest stumbling blocks, according to people involved in the effort. But a few topics, namely health care, divided them.

“It was the ACA that became the stumbling block,” said then-Rep. Luis Gutiérrez (D-Ill.), one of the Democratic negotiators. “That was what broke down our conversation.”

Then-Rep. Raúl Labrador, a Republican from Idaho, felt strongly that taxpayers should not have to foot any bills for immigrants who are in the country seeking citizenship. And he was concerned about the possibility that immigrants could rack up bills in emergency rooms — shouldn’t immigrants, he argued, be responsible for their own health care?

One solution Labrador proposed: Change the ACA so that immigrants could buy cheap “catastrophic” health care plans designed to cover them in an emergency — a no-go for Democrats, who did not support such insurance. By mid-May, the group was frustrated, and Labrador threatened to quit if they couldn’t solve the health care conundrum soon. Rep. Zoe Lofgren (D-Calif.) put forward a proposal: vague language saying immigrants need to pay for their own insurance and would be ineligible for citizenship if they relied on the government.

Becerra, who was also responsible for relaying the group’s decisions to Pelosi, refused to sign on. Within days, Labrador announced he would write his own bill. The Gang of Eight had collapsed.

* * *

As Joe Biden started his presidency, he issued half a dozen executive orders to begin to unwind the hundreds of hardline immigration policies put into place by the Trump White House, like building a border wall. He also started to advance his own plans, which include raising Trump’s cap on refugees. And Biden rolled out his own immigration reform plan, which would provide a path to citizenship for undocumented immigrants.

But the political parties have only diverged on immigration issues in recent years, making benefits like health care more difficult to navigate than ever.

Republicans, who drifted to the right on immigration in recent years with Trump, argue that offering government-subsidized health care or food stamps for undocumented immigrants only encourages more people to come to the U.S. illegally. Providing benefits to recently arrived, legal immigrants is also contentious: Trump tried to curb such policies in 2018, when his administration issued a rule that would bar immigrants who have taken government services from gaining citizenship. As California AG, Becerra led states in suing to block the rule, which remains in place.

Democrats’ moderate wing is shrinking, and progressives like Becerra are pushing forward an argument that many undocumented immigrants work in the United States and pay taxes, so should be able to benefit. A little government assistance can go a long way, they say: With health care, for example, giving people access to doctors through Medicaid and state exchanges could prevent them from later taking trips to the emergency room, which can cost patients and the government thousands of dollars.

Still, the advocates have made little progress on Capitol Hill. In early February, 58 senators — including former presidential candidate John Hickenlooper (D-Colo.) and Sen. Gary Peters (D-Mich.), who chairs the Democratic Senatorial Campaign Committee — voted in favor of banning undocumented immigrants from receiving stimulus checks in a nonbinding vote, for example.

“This is the third rail in politics,” said Randy Capps, director at the Migration Policy Institute. “It’s such a polarizing issue, and you have a number of moderate Democrats [from] Republican or purple states that fear the Republican voters or moderate voters in their states would really make an issue out of it, which they would. They did with the Affordable Care Act.”

Today, undocumented immigrants cannot participate in federal Medicare or Medicaid, use the CHIP insurance program for children, or buy insurance through the Obamacare exchanges. But states can — and do — use their own money to expand access to health care.

In recent years, at least six states including New York, Massachusetts and California have expanded their in-state health programs to cover children regardless of their immigration status, and California has made moves to expand its coverage to seniors. (Such expansions are costly: When California expanded its in-state Medicaid program to cover people up to age 25, the state budgeted $98 million for the first year alone.)

California also asked the federal government for a waiver from the ACA that would allow the state to bypass the ban on undocumented immigrants participating in the state’s health exchange if they pay the unsubsidized cost of the insurance. The waiver request, which was filed at the end of Obama’s presidency and withdrawn after Trump took office, was supported by California lawmakers including Becerra.

“Everyone who works hard to build our country up, as so many immigrant families do, deserves access to quality and affordable health care. This provision does not cost the federal government a dime and it’s a no-brainer to get this waiver approved,” Becerra said at the time.

HHS never confirmed California’s request — and some experts are not sure if it would be legal to do so. But if confirmed as secretary, Becerra could put in place a range of immigrant-friendly policies at the department, including potentially signing off on waivers like the one California requested five years ago.



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