Many thanks to Jeremy Paul and Rachel Rosenbloom for comments on an earlier draft, and Michael Cullen Bober, Fernanda Romeiro Dacosta, Steven Kreager, Gabrielle Rasmussen, Genna Selesnick and Rohan Vakil for their research assistance.

1 Sophia Bollag, Gavin Newsom's Health Plan Would Restore Obamacare Mandate, Expand Access for Undocumented, The Sacramento Bee (Jan. 7, 2019, 1:38 PM), https://www.sacbee.com/news/politics-government/capitol-alert/article224037840.html [https://perma.cc/7YMU-8M94].

2 NYC Mayor Guarantees Comprehensive Health Care for All in Historic Surprise Announcement, NBC N.Y. (Jan. 8, 2019, 9:00 AM), https://www.nbcnewyork.com/news/local/NYC-Health-Care-Guarantee-Mayor-de-Blasio-504046171.html [https://perma.cc/TN7E-DR8U].

3 Reihan Salam, Bill de Blasio and Gavin Newsom May Give Restrictionism New Life, The Atl. (Jan. 14, 2019), https://www.theatlantic.com/ideas/archive/2019/01/de-blasio-and-newsoms-health-care-immigrants-pledge-may-backfire/580252/ [https://perma.cc/8P8Z-LAZJ].

4 See Inadmissibility on Public Charge Grounds, 83 Fed. Reg. 51,114 (proposed Oct. 10, 2018) (to be codified at 8 C.F.R. pts. 103, 212-214, 245, 248). For a further discussion, see infra text accompanying notes 121-58.

5 The discussion that follows treats local governments as similar to the states for purposes of federalism. Of course, states and local governments often have divergent approaches to many issues relating to health and/or immigration. See Preemption in Public Health, Pub. Health Law Ctr., https://publichealthlawcenter.org/topics/other-public-health-law/preemption-public-health [https://perma.cc/D22X-56NL]; Patrick Sisson, Sanctuary Cities Fight Back Against New Immigration Restrictions, Curbed (June 1, 2017), https://www.curbed.com/2017/6/1/15725144/austin-immigration-sanctuary-city-jeff-sessions-sb4 [https://perma.cc/ENA7-ZB6J]. A discussion of state versus local authority on these matters is beyond the scope of this paper.

6 See infra text accompanying notes 13-27.

7 See infra text accompanying notes 28-31.

8 See Wendy E. Parmet, Populations, Public Health, and the Law 37-45 (2009).

9 See infra text accompanying notes 42-69.

10 See infra text accompanying notes 70-158.

11 See infra text accompanying notes 121-58.

12 See infra text accompanying notes 161-84. This discussion is influenced by an approach to law that I have elsewhere described as population-based legal analysis. See Parmet, supra note 8, at 51-59.

13 Chae Chan Ping v. United States, 130 U.S. 581, 609 (1889).

14 De Canas v. Bica, 424 U.S. 351, 354 (1976).

15 Id.; Saucedo, Leticia M., States of Desire: How Immigration Law Allows States to Attract Desired Immigrants, 52 U.C. Davis L. Rev. 471, 476 (2018)Google Scholar. The literature on the plenary power doctrine and its possible erosion is extensive. See, e.g., Fields, Shawn E., The Unreviewable Executive? National Security and the Limits of the Plenary Power, 84 Tenn. L. Rev. 731 (2017)Google Scholar; Kim, Catherine Y., Plenary Power in the Modern Administrative State, 96 N.C. L. Rev. 77 (2017)Google Scholar; Motomura, Hiroshi, Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 Yale L.J. 545 (1990)CrossRefGoogle Scholar; Spiro, Peter J., Explaining the End of Plenary Power, 16 Geo. Immigr. L.J. 339 (2002)Google Scholar.

16 De Canas, 424 U.S. at 355. See also Hines v. Davidowitz, 312 U.S. 52, 66-68 (1941) (“[T]he power to restrict, limit, and register aliens as a distinct group is not an equal and continuously existing concurrent power of state and nation, but that whatever power a state may have is subordinate to supreme national law.”); Rubenstein, David S. & Gulasekaram, Pratheepan, Immigration Exceptionalism, 111 Nw. U. L. Rev. 583, 603 (2017)Google Scholar.

17 Rodriguez, Cristina M., The Significance of the Local in Immigration Regulation, 106 Mich. L. Rev. 567, 620-21 (2008).Google Scholar

18 Toll v. Moreno, 458 U.S. 1, 8-17 (1982). For a discussion of the use of preemption to decide antidiscrimination claims involving immigrants, see Condon, Jenny–Brooke, The Preempting of Equal Protection for Immigrants?, 73 Wash. & Lee L. Rev. 77, 125 (2016)Google Scholar.

19 Arizona v. United States, 567 U.S. 387, 394-95, 415-16 (2012). The Court further held that federal immigration law did not preempt a provision of the state law that required state officers to conducting stops or arrests to inquire about immigration status. Id. at 413-16.

20 Id. at 410. See also Rubenstein & Gulasekaram, supra note 16, at 586-87.

21 See Graham v. Richardson, 403 U.S. 365, 373-76 (1971).

22 Mathews v. Diaz, 426 U.S. 67, 80-81, 86-87 (1976). As Jenny-Brooke Condon has shown, this differential approach frequently combines with preemption analysis to uphold state laws that discriminate against non-citizens. See Condon, supra note 18, at 121-23.

23 Some scholars have argued that the courts at times have blurred the lines between the federal exclusivity and plenary power doctrines. E.g., Pratheepan Gulasekaram & S. Karthick Ramakrishnan, The New Immigration Federalism 176-77 (2015).

24 See Fiallo v. Bell, 430 U.S. 787, 792 (1977). As Motomura explains, the doctrine has its greatest force with respect to cases concerning the admission or expulsion of aliens, and less force in cases regarding the rights and obligations of aliens who are lawfully within the country. Motomura, supra note 15, at 565-75. The Court's use of the plenary doctrine language in Mathews, however, shows that the doctrine has influence even in the latter set of cases. See 426 U.S. at 80-81.

25 Mathews, 426 U.S. at 81. See also Fiallo, 430 U.S. at 792 (control over immigration is a “fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control.”).

26 Trump v. Hawaii, 138 S. Ct. 2392, 2408-09 (2018).

27 Id. at 2418-19 (quoting Mathews, 426 U.S. at 81). For a further discussion of the federalism implications of federal executive actions relating to immigration, see Gulasekaram, Pratheepan & Ramakrishnan, S. Karthick, The President and Immigration Federalism, 68 Fla. L. Rev. 101, 134-43 (2016)Google Scholar.

28 Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 203 (1824).

29 For a fuller discussion, see Parmet, supra note 8, at 78-82.

30 Jacobson v. Massachusetts, 197 U.S. 11, 25 (1905).

31 Compagnie Francaise de Navigation a Vapeur v. La. State Bd. of Health, 186 U.S. 380 (1902).

32 See Parmet, supra note 8, at 42-45.

33 Gluck, Abbe R. & Huberfeld, Nicole, What Is Federalism in Healthcare For?, 70 Stan. L. Rev. 1689, 1706-18 (2018)Google Scholar.

34 McCuskey, Elizabeth Y., Body of Preemption: Health Law Traditions and the Presumption Against Preemption, 89 Temp. L. Rev. 95, 123-44 (2016)Google Scholar.

35 Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519, 535-38 (2012).

36 Gonzales v. Raich, 545 U.S. 1, 43, 66, 74 (2005).

37 Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996). See also Hillsborough County v. Automated Med. Labs., Inc., 471 U.S. 707, 715-16 (1975) (“Appellee must thus present a showing of implicit pre-emption of the whole field, or of a conflict between a particular local provision and the federal scheme, that is strong enough to overcome the presumption that state and local regulation of health and safety matters can constitutionally coexist with federal regulation.”).

38 See, e.g., PLIVA, Inc. v. Mensing, 564 U.S. 604, 626, 638 (2011) (Stotomayor, J., dissenting)(criticizing the majority for ignoring the presumption against preemption).

39 E.g., CTS Corp. v. Waldburger, 573 U.S. 1, 19-20 (2014); Wyeth v. Levine, 555 U.S. 555, 565 (2009).

40 See Gluck & Huberfeld, supra note 33, at 1724-84 (describing the complex federalism of the ACA).

41 See, e.g., Marcus Hawkins, A Definition of Federalism: The Case for Reinvigorating State's Rights, ThoughtCo, https://www.thoughtco.com/a-definition-of-federalism-3303456 [https://perma.cc/34H2-Y4FY].

42 For a discussion of the general decline of the separate spheres approach, see Gerken, Heather K., Federalism 3.0, 105 Cal. L. Rev. 1695, 1698-1708 (2017)Google Scholar.

43 For example, in 2017 the federal government was the single largest payer of health care costs, paying over 25% of all health care costs. See NHE Fact Sheet, Ctrs. for Medicare & Medicaid Servs., https://www.cms.gov/research-statistics-data-and-systems/statistics-trends-and-reports/nationalhealthexpenddata/nhe-fact-sheet.html [https://perma.cc/9ULW-RK3J].

44 See McCuskey, supra note 34, at 123-42.

45 See Lawrence O. Gostin & Lindsay F. Wiley, Public Health Law: Power, Duty, Restraint 153-90 (3d ed. 2016).

46 See id.

47 Gluck & Huberfeld, supra note 33, at 1802.

48 The literature on immigration and federalism is extensive. See, e.g., Hiroshi Motomura, Immigration Outside the Law 56-95 (2014); Nelson Lund, The Constitutionality of Immigration Sanctuaries and Anti-Sanctuaries: Originalism, Current Doctrine, and a Second-Best Alternative (George Mason Legal Studies Research Paper No. LS 18-37, 2018).

49 See Neuman, Gerald L., The Lost Century of American Immigration Law (1776-1875), 93 Colum. L. Rev. 1833, 1886-93 (1993)CrossRefGoogle Scholar. Technically, the regulation of immigration refers to laws relating to the admission, status or expulsion of non-citizens, as opposed to laws that relate to their rights and obligations. See also Motomura, supra note 15, at 547. As the discussion below suggests, both by statute and in practice, the two types of regulation can be related. See infra text accompanying notes 121-58.

50 See Neuman, supra note 49, at 1841, 1886-93.

51 See, e.g., De Canas v. Bica, 424 U.S. 351, 355 (1976).

52 I use the term “immigration federalism” as Stella Burch Elias does to refer to “the engagement by national, state, and local governmental actors in immigration regulation,” a concept that reaches far wider than simply state or local efforts relating to the enforcement of immigration laws. See Elias, Stella Burch, The New Immigration Federalism, 74 Ohio St. L.J. 703, 707, 710 (2013)Google Scholar.

53 See generally Gulasekaram & Ramakrishnan, supra note 23. See also Saucedo, supra note 15, at 473-82 (reviewing the literature). Recent cases have also shown an erosion of the deference traditionally granted to the political branches with respect to immigration, especially in cases challenging executive actions. See, e.g., City and County of San Francisco v. Trump, 897 F.3d 1225, 1231 (9th Cir. 2018) (upholding preliminary injunction against enforcement of Executive Order); E. Bay Sanctuary Covenant v. Trump, 909 F.3d 1219, 1231 (9th Cir. 2018) (upholding temporary restraining order against President's new limitations on asylum); Texas v. United States, 809 F.3d 134, 146 (5th Cir. 2015), aff'd by equally divided court, 136 S. Ct. 2271 (2016); City of Chicago v. Sessions, 321 F. Supp. 3d 855, 861, 882 (N.D. Ill. 2018) (upholding nationwide injunction against enforcement of Executive Order regarding sanctuary cities). For a further discussion of the role of Executive action regarding immigration, see Kim, supra note 15, at 115, 119-20, 123-25, 128-29; infra text accompanying notes 172-81.

54 See Rodriguez, supra note 17, 581-82.

55 See Saucedo, supra note 15, at 486, 495, 498-500.

56 See Chacón, Jennifer M., The Transformation of Immigration Federalism, 21 Wm. & Mary Bill Rts. J. 577, 598-609 (2012)Google Scholar.

57 Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-546.

58 See Chacón, supra note 56, at 599 (noting that in addition to IIRIRA, the Anti-Terrorism and Effective Death Penalty Act also authorizes state officers to arrest and detain non-citizens who have previously been convicted of a felony).

59 Delegation of Immigration Authority Section 287(g) Immigration and Nationality Act, U.S. Immigration & Customs Enf't, https://www.ice.gov/287g [https://perma.cc/Q8EZ-R7JP].

60 Jessica Bulman-Pozen and Heather Gerken use the term “uncooperative federalism” to describe how states and localities can resist federal policy. See generally Bulman-Pozen, Jessica & Gerken, Heather K., Uncooperative Federalism, 118 Yale L.J. 1256 (2009)Google Scholar.

61 Scholars have also viewed state actions as further expressions of political polarization, as states often contest federal initiatives when the federal government and the states are ruled by different political parties. See Bulman-Pozen, Jessica, Executive Federalism Comes to America, 102 Va. L. Rev. 953, 955 (2016)Google Scholar.

62 See Lozano v. City of Hazleton, 724 F.3d 297, 300 (3d Cir. 2013). The Eighth Circuit reached the opposite conclusion regarding a similar ordinance in Nebraska. Keller v. City of Freemont, 719 F.3d 931, 937 (8th Cir. 2013). For a fuller discussion of exclusionary state laws, see Elias, supra note 52, at 726-34.

63 See Elias, supra note 52, at 722.

64 Rodriguez supra note 17, at 577-79, 581-590. See also, Elias, supra note 52, at 735-43; Lund, supra note 48, at 24-27.

65 See Elias, supra note 52, at 706 (noting that many state laws that were passed or introduced in 2013 were inclusionary).

66 Indeed, in Arizona v. United States., the Supreme Court upheld one part of Arizona's restrictive laws. 567 U.S. 387, 412-13 (2012). Further, as Elias explains, the Court's opinion in Arizona left “open the opportunities for state and local rulemaking pertaining to immigrant-inclusionary ‘alienage’ laws, because the opinion is silent as to such regulation.” Elias, supra note 52, at 718. In recent years, courts have further supported the notion that states have leeway to enact inclusionary laws. For example, courts have rejected President Trump's order preventing “sanctuary jurisdictions” from receiving certain federal funds. City and County of San Francisco v. Trump, 897 F.3d 1225, 1231 (9th Cir. 2018) (upholding preliminary injunction against enforcement of Executive Order); City of Chicago v. Sessions, 321 F. Supp. 3d 855, 861, 882 (N.D. Ill. 2018) (upholding nationwide injunction against enforcement of Executive Order regarding sanctuary cities).

67 Elias, supra note 52, at 741.

68 See Chen, Ming H., Beyond Legality: The Legitimacy of Executive Action in Immigration Law, 66 Syracuse L. Rev. 87, 109-33 (2016)Google Scholar.

69 See Emily Birnbaum, Six States and New York City Sue Trump Administration for Withholding ‘Sanctuary City’ Funds, The Hill (Jul. 18, 2018), https://thehill.com/homenews/administration/397781-six-states-andnew-york-sue-trump-administration-for-withholding [https://perma.cc/BL7U-2QC4]; Charlie Savage & Robert Pear, 16 States Sue to Stop Trump's Use of Emergency Powers to Build Border Wall, N.Y. Times (Feb. 18, 2018), https://www.nytimes.com/2019/02/18/us/politics/national-emergency-lawsuits-trump.html?action=click&module=Top%20Stories&pgtype=Homepage [https://perma.cc/T2ZL-NGKU]; Joanna Walters, Four States Sue Trump Administration Over ‘Un-American’ Travel Ban, The Guardian (Feb. 1, 2017), https://www.theguardian.com/us-news/2017/jan/31/trump-travel-ban-state-lawsuits [https://perma.cc/R5DN-VY2P].

70 Martin, Philip, Proposition 187 in California, 29 Int'l Migration Rev. 255, 255-56 (1995)CrossRefGoogle Scholar.

71 Id.; see also Patricia Illingworth & Wendy E. Parmet, The Health of Newcomers: Immigration, Health Policy, and the Case for Global Solidarity 75-76 (2017) (noting that undocumented immigrants were generally ineligible for non-emergency benefits even before the law was passed).

72 See Martin, supra note 70, at 256.

73 League of United Latin Am. Citizens v. Wilson, 908 F. Supp. 755, 786-87 (C.D. Cal. 1995).

74 Id. at 770.

75 Id. at 784.

76 John M. Goshko, Immigration Initiatives Ride Wave of Anxiety Over Illegals, Wash. Post (July 2, 1995), https://www.washingtonpost.com/archive/politics/1995/07/02/immigration-initiatives-ride-wave-of-anxiety-over-illegals/8a59d9d2-cdb8-4f33-abe4-77e7e6adbddd/?utm_term=.ecdbbf222b5e [https://perma.cc/MW9Y-V8UE].

77 Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105.

78 For a fuller discussion of PRWORA, see Illingworth & Parmet, supra note 71, at 77-83; Makhlouf, Medha D., Health Justice for Immigrants, 4 U. Pa. J.L. & Pub. Aff. 235, 249-54 (2019)Google Scholar (explaining that PRWORA does not only deal with health benefits).

79 8 U.S.C. §§ 1611, 1621, 1641 (2018).

80 Id. at § 1613. See also Makhlouf, supra note 78, at 252 (discussing PRWORA's treatment of various classes of non-citizens).

81 §§ 1622-1625. Hence, PRWORA attempts to protect states that discriminate against non-citizens in a manner that would otherwise violate the Equal Protection Clause. See, e.g., Condon, supra note 18, at 129-49; Wishnie, Michael J., Laboratories of Bigotry? Devolution of the Immigration Power, Equal Protection, and Federalism, 76 N.Y.U. L. Rev. 493, 497-98 (2001)Google Scholar.

82 Medical Assistance Programs for Immigrants in Various States, Nat'l Immigration Law Ctr., https://www.nilc.org/wp-content/uploads/2015/11/med-services-for-imms-in-states.pdf [https://perma.cc/GDV5-2VVW] (showing that states' eligible immigrant criteria are similar and that few are extremely restrictive).

83 §§ 1621(d), 1622 (unqualified immigrants and qualified immigrants, respectively). See also Ayers, Andrew B., Federalism and the Right to Decide Who Decides, 63 Vill. L. Rev. 567, 571-77 (2018)Google Scholar (questioning the constitutionality of requiring states to pass statutes to provide benefits to undocumented immigrants).

84 See infra text accompanying notes 89-105.

85 42 U.S.C. § 18082(d) (2018). See also Illingworth & Parmet, supra note 71, at 82. By expanding coverage for citizens, but not all non-citizens, the ACA may have increased disparities between the two groups. See Stimson, Jim P. & Wilson, Fernando A., Medicaid Expansion Improved Health Insurance Coverage For Immigrants, But Disparities Persist, 37 Health Aff. 1656, 1660 (2018)CrossRefGoogle Scholar (“In expansion states in 2015, noncitizens were nearly three times more likely than natives to be uninsured, but in 2010, noncitizens had been nearly twice as likely to be uninsured.”).

86 45 C.F.R. § 152.2(8) (2018).

87 See 42 U.S.C. § 18032(f)(3) (2018). For a further discussion, see Illingworth & Parmet, supra note 71, at 81-83.

88 Children's Health Insurance Program Reauthorization Act of 2009, Pub. L. No. 111-3, § 214, 123 Stat. 8, 56-57.

89 Medicaid/CHIP Coverage of Lawfully-Residing Immigrant Children and Pregnant Women, Kaiser Family Found. (Jan. 1, 2018), https://www.kff.org/health-reform/state-indicator/medicaid-chip-coverage-of-lawfully-residing-immigrant-children-and-pregnant-women/?currentTimeframe=0&sortModel=%7B%22colId%22:%22Location%22,%22sort%22:%22asc%22%7D [https://perma.cc/FN6L-JALM].

90 See Medical Assistance Programs for Immigrants in Various States, supra note 82.

91 Denisse Rojas & Miranda Dietz, Providing Health Care to Undocumented Immigrants: Program Details and Lessons Learned from Three California County Health Programs 3 (2016), http://laborcenter.berkeley.edu/pdf/2016/Providing-Health-Care-to-Undocumented-Residents.pdf [https://perma.cc/7LEJ-BSZ8].

92 Chen, supra note 68, at 132.

93 Rojas & Dietz, supra note 91, at 8-9.

94 Id. at 5-7

95 Laurel Lucia, Towards Universal Health Coverage: Expanding Medi-Cal to Low-Income Undocumented Adults 5, http://laborcenter.berkeley.edu/pdf/2019/Towards-Universal-Health-Coverage.pdf [https://perma.cc/6829-QURD]. Many other states do not cover non-emergent dialysis for undocumented immigrants. See Illingworth & Parmet, supra note 71, at 88.

96 For a fuller discussion of coverage for immigrants in Massachusetts, see Joseph, Tiffany D., What Health Care Reform Means for Immigrants: Comparing the Affordable Care Act and Massachusetts Health Reforms, 41 J. Health Pol. Pol'y & L. 101, 104-11 (2016)CrossRefGoogle ScholarPubMed.

97 2006 Mass. Acts 77; Joseph, supra note 96, at 102. See also Patel, Kavita & McDonough, John, From Massachusetts to 1600 Pennsylvania Avenue: Aboard the Health Reform Express, 29 Health Aff. 1106, 1106-07 (2010)CrossRefGoogle ScholarPubMed (outlining the similarities and differences between the ACA and Massachusetts Chapter 58).

98 See Joseph, supra note 96, at 107-08.

99 See Finch v. Commonwealth Health Ins. Connector Auth., 959 N.E.2d 970, 977 (Mass. 2012).

100 Id. at 984.

101 See MassHealth, Member Booklet for Health and Dental Coverage and Help Paying Costs 40-43 (2019), https://www.mass.gov/files/documents/2019/03/13/aca-1-english-mb.pdf [https://perma.cc/82MV-BA7U].

102 Id.

103 Id.

104 Fayad ex rel. Aliessa v. Novello, 754 N.E.2d 1085, 1098-99 (N.Y. 2001).

105 See Medical Assistance Programs for Immigrants in Various States, supra note 82.

106 Id.

107 Alex Visser, Brown Highlights Health Care, Housing in Inaugural Address, The Lund Report (Jan. 15, 2019), https://www.thelundreport.org/content/brown-highlights-health-care-housing-inaugural-address [https://perma.cc/979Y-PXV8].

108 Robin Fretwell Wilson et al., Trumpcare: Expect the Phoenix to Rise from the Ashes, 2017 Ill. L. Rev. Online: Trump 100 Days (Apr. 29, 2017). It was unclear what the President sought to put in the place of the ACA. Shortly before his inauguration, he stated that he wanted a plan that would provide coverage to everyone. Henry C. Jackson, 6 Promises Trump Has Made About Health Care, Politico, (Mar. 13, 2017, 10:14 PM), https://www.politico.com/story/2017/03/trump-obamacare-promises-236021 [https://perma.cc/S8JQ-3HAW]. However, the various Republican proposals that he endorsed would have reduced coverage to a significant degree. Id.

109 See Sabrina Corlette, Recent and Potential Regulatory Actions to Roll Back the ACA: State Options Blog Series, Ctr. on Health Ins. Reforms: CHIRblog (Sept. 11, 2017), http://chirblog.org/recent-and-potential-regulatory-actions-to-roll-back-aca/ [https://perma.cc/L2WF-6EJK]; Robert Greenwald & Judith Solomon, Medicaid Program Under Siege, Health Affairs Blog (Jan. 18, 2018), https://www.healthaffairs.org/do/10.1377/hblog20180110.887587/full/ [https://perma.cc/GSZ8-TJ8Y].

110 See Greenwald & Solomon, supra note 109.

111 Margot Sanger-Katz, After Falling Under Obama, America's Uninsured Rate Looks to be Rising, N.Y. Times (Jan. 23, 2019), https://www.nytimes.com/2019/01/23/upshot/rate-of-americans-without-health-insurance-rising.html [https://perma.cc/Q4RS-U3ZN]. It is worth noting that because non-citizen immigrants are less likely than native-born citizens to receive insurance through the workplace, they are more vulnerable than native-born citizens to policies that erode the ACA or make it more difficult to access Medicaid and other government programs. See Wendy E. Parmet, Immigration and Health Care Under the Trump Administration, Health Affairs Blog (Jan. 18, 2018), https://www.healthaffairs.org/do/10.1377/hblog20180105.259433/full/ [https://perma.cc/LT9S-DREV].

112 Am. Immigration Lawyers Ass'n, Deconstructing the Invisible Wall: How Policy Changes by the Trump Administration Are Slowing and Restricting Legal Immigration 3 (2018), https://www.aila.org/infonet/aila-report-deconstructing-the-invisible-wall [https://perma.cc/4EVP-SXU9]. See also Stuart Anderson, The Outlook on Immigration in 2019, Forbes (Jan. 2, 2019, 12:06 AM), https://www.forbes.com/sites/stuartanderson/2019/01/02/what-to-expect-on-immigration-in-2019/#56baecd93347 [https://perma.cc/42QG-AZDN] (describing several restrictive immigration policies); Dara Lind, Fear Itself: Donald Trump's Real Immigration Policy, Vox (Sept. 29, 2017, 10:27 AM), https://www.vox.com/policy-and-politics/2017/9/14/16293906/trump-immigration-deportation [https://perma.cc/5AZT-8974] (describing raids of “sanctuary cities”).

113 See, e.g., AAP Statement Opposing Separation of Children and Parents at the Border, Am. Acad. of Pediatrics (May 8, 2018), https://www.aap.org/en-us/about-the-aap/aap-press-room/Pages/StatementOpposingSeparationofChildrenandParents.aspx [https://perma.cc/RSL3-9B42]; Biggest U.S. Doctors Group Condemns Family Separation Policy, Politico (June 20, 2018), https://www.politico.com/story/2018/06/20/american-medical-association-family-separation-policy-655677 [https://perma.cc/T89T-BXSU].

114 Garza v. Hargan, 874 F.3d 735, 737 (D.C. Cir. 2017), vacated as moot, Azar v. Garza, 138 S. Ct. 1790 (2018).

115 FAQ on Sensitive Locations and Courthouse Arrests, U.S. Immigration & Customs Enf't, https://www.ice.gov/ero/enforcement/sensitive-loc [https://perma.cc/XJ3M-DTVY].

116 Government Releases 10-Year-Old Rosa Maria Hernandez After ACLU Files Lawsuit, ACLU (Nov. 3, 2017), https://www.aclu.org/news/government-releases-10-year-old-rosa-maria-hernandez-after-aclu-files-lawsuit [https://perma.cc/2YYC-AAMU].

117 Id.

118 Agency Information Collective Activities; New Collection: USCIS Tip Form, 84 Fed. Reg. 4518 (proposed Feb. 15, 2019).

119 See The Children's P'ship, California Children in Immigrant Families: The Health Provider Perspective, https://www.childrenspartnership.org/wp-content/uploads/2018/03/Provider-Survey-Inforgraphic-.pdf [https://perma.cc/6T5E-WEWJ]; Karina Hernandez, Trump Benefits Proposal Could Deter Immigrants Facing HIV, WNYC (Jan. 21, 2019), https://www.wnyc.org/story/immigrants-hiv-panic-over-trump-benefits-proposal/ [https://perma.cc/9RLK-MS52]; Ana B. Ibarra, Providers Walk ‘Fine Line’ Between Informing and Scaring Immigrant Patients, Kaiser Health News (Jan. 15, 2019), https://khn.org/news/providers-walk-fine-line-between-informing-and-scaring-immigrant-patients/ [https://perma.cc/93DA-86BY]; Ashley Lopez, Fear of Deportation or Green Card Denial Deters Some Parents from Getting Kids Care, NPR Shots (Jan. 26, 2019, 7:35 AM), https://www.npr.org/sections/health-shots/2019/01/26/686325494/fear-of-deportation-or-green-card-denial-deters-some-parents-from-getting-kids-c [https://perma.cc/5A3D-J54C].

120 See Hernandez, supra note 119; Lopez, supra note 119.

121 8 U.S.C. § 1182(a)(4) (2018). Deportation on public charge grounds is possible, but under current law, only in very limited circumstances. See Em Puhl et al., Immigrant Legal Res. Ctr., An Overview of Public Charge 5-6 (2018), https://www.ilrc.org/sites/default/files/resources/overview_of_public_charge-20181214.pdf [https://perma.cc/5F42-WNJL] (summarizing cases that addressed public charge deportation).

122 § 1182(a)(4)(B)(i). The Trump Administration, however, now appears to be planning to propose new regulations that may make it easier to deport immigrants on the basis of being a public charge. See Yeganeh Torbati, Trump Administration Proposal Would Make it Easier to Deport Immigrants Who Use Public Benefits, Reuters (May 3, 2019, 2:47 PM), https://www.reuters.com/article/us-usa-immigration-benefits-exclusive/exclusive-trump-administration-proposal-would-make-it-easier-to-deport-immigrants-who-use-public-benefits-idUSKCN1S91UR?il=0 [https://perma.cc/TV5Q-JVKJ].

123 Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28,689 (Mar. 26, 1999). For immigrants who are within the country, the most likely adverse consequence would be the denial of lawful permanent residence status (i.e. a green card). Under current law, deportations on public charge grounds are limited to a narrow set of circumstances. See id. at 28,691 (providing a three-factor test to determine whether a person is deportable on public charge grounds); Hammond, Andrew, The Immigration-Welfare Nexus in a New Era?, 22 Lewis & Clark L. Rev. 501, 519 (2018)Google Scholar.

124 See Parmet, supra note 111. See also Annie Lowrey, Trump's Anti-Immigrant Policies Are Scaring Eligible Families Away From the Safety Net, The Atl. (Mar. 24, 2017), https://www.theatlantic.com/business/archive/2017/03/trump-safety-net-latino-families/520779/ [https://perma.cc/66VB-QDSY].

125 Nat'l Immigration Law Ctr., Changes to “Public Charge” Instructions in the U.S. State Department's Manual 1 (2018), https://www.nilc.org/wp-content/uploads/2018/02/NILC-FAM-Summary-2018.pdf [https://perma.cc/PK3P-4SSJ].

126 Wendy E. Parmet & Elisabeth Ryan, New Dangers for Immigrants and the Health Care System, Health Aff. Blog (Apr. 20, 2018), https://www.healthaffairs.org/do/10.1377/hblog20180419.892713/full/ [https://perma.cc/77ZC-4PR9].

127 Inadmissibility on Public Charge Grounds, 83 Fed. Reg. 51,114 (proposed Oct. 10, 2018) (to be codified at 8 C.F.R. pts. 103, 212-214, 245, 248).

128 Although the regulations did not include CHIP in the definition of public charge, DHS asked for comments about whether CHIP should be added. See id. at 51,173-74.

129 Id. at 51,175.

130 See id. at 51, 291.

131 Id. at 51,289-91.

132 Id. at 51,292. The present discussion only focuses on the regulation's impact on health and state health policy. The regulations also treat income less than 125% of the Federal Poverty Guidelines as a negative factor and treat the use of other non-cash benefits, including housing support and SNAP, as heavily weighted negative factors (if currently received or received during 36 month window immediately preceding application for benefit for heavily weighted negative factor; otherwise only a negative factor). Id. at 51,291-92.

133 Id. at 51,292.

134 E.g., Samantha Artiga et al., Kaiser Family Found., Estimated Impacts of the Proposed Public Charge Rule on Immigrants and Medicaid 5-6 (2018), http://files.kff.org/attachment/Issue-Brief-Estimated-Impacts-of-the-Proposed-Public-Charge-Rule-on-Immigrants-and-Medicaid [https://perma.cc/M7KX-SSXR] (assuming disenrollment rate of 15-35% among enrollees, between 2.1 to 4.9 million individuals would disenroll from Medicaid and CHIP); Cindy Mann et al., manatt, Medicaid Payments at Risk for Hospitals Under the Public Charge Proposed Rule 11 (2018), https://www.manatt.com/Manatt/media/Media/PDF/White%20Papers/Medicaid-Payments-at-Risk-for-Hospitals.pdf [https://perma.cc/7SE6-NCJQ] (“approximately 324,000 people each year would likely disenroll or forego enrollment”); Kirsta M. Perreira et al., A New Threat to Immigrants' Health – The Public-Charge Rule, 379 New Eng. J. Med. 901, 902 (2018) (“the number of uninsured people could rise by more than 1 million”). In addition, because most states provide CHIP through their Medicaid programs, many parents are likely to be confused as to whether their children receive CHIP or Medicaid benefits, and may therefore disenroll their children from CHIP. See infra text accompanying notes 148-49.

135 E.g., Karina Wagnerman et al., Georgetown University Center for Children and Families, Medicaid is a Smart Investment in Children 3 (2017), https://ccf.georgetown.edu/wp-content/uploads/2017/03/MedicaidSmartInvestment.pdf [https://perma.cc/K75S-FRQK] (Medicaid expansion has been associated with reduced infant mortality and childhood mortality).

136 Housing, for example, is an especially important social determinant of health. See Butler, Stuart M., Housing as a Step to Better Health, 320 JAMA 21 (2018)CrossRefGoogle ScholarPubMed. Access to SNAP can also be “critical” for “reducing negative health outcomes.” Gunderson, Craig & Ziliak, James P., Food Insecurity and Health Outcomes, 34 Health Aff. 1830, 1830 (2015)CrossRefGoogle Scholar.

137 The impact of the public charge rule will necessarily be the greatest in the states that have chosen to expand Medicaid and be more inclusive of non-citizens. This raises the interesting point that a non-citizen in a blue state may be found to be a “public charge” by using a benefit that would not be available to the same non-citizen in a non-expansion state. In effect, the non-citizen's immigration status may be affected by the choices their state has made with respect to Medicaid or CHIP eligibility.

138 The impact of the rule will necessarily be less dramatic in states that have stricter eligibility requirements for Medicaid.

139 See Patel & McDonough, supra note 97, at 1106-07.

140 Katie Keith, Two New Federal Surveys Show Stable Uninsured Rate, Health Affairs Blog (Sept. 13, 2018), https://www.healthaffairs.org/do/10.1377/hblog20180913.896261/full/ [https://perma.cc/AM9NUPMF].

141 See Mass. Health Policy Comm'n, 2017 Annual Health Care Cost Trends Report 17 (2018) (Massachusetts has the lowest uninsured rate in the U.S.); Overall in Massachusetts in 2018, Am.'s Health Rankings, https://www.americashealthrankings.org/explore/annual/measure/Overall/state/MA (last visited Mar. 26, 2019) (showing that Massachusetts's overall health rank increased from seventh in 2006 to first in 2017 and second in 2018).

142 McDonough, John E. et al., Massachusetts Health Reform Implementation: Major Progress and Future Challenges, 27 Health Aff. 285, 295 (2008)CrossRefGoogle ScholarPubMed; Mechanic, Robert E. et al., The New Era of Payment Reform, Spending Targets, and Cost Containment in Massachusetts: Early Lessons for the Nation, 31 Health Aff. 2334, 2334 (2012)CrossRefGoogle ScholarPubMed.

143 John Moreschi, Blue Cross Blue Shield of Mass. Found., The Proposed Public Charge Rule: An Overview and Implications in Massachusetts 3 (2018), https://bluecrossmafoundation.org/sites/default/files/download/publication/BCBSF_PublicChargeReport_Dec2018_Final.pdf [https://perma.cc/DU8Z-4KUT].

144 The Commonwealth of Mass. Office of the Attorney Gen., Comment on Proposed Rule: Inadmissibility on Public Charge Grounds 4 (Dec. 10, 2018) (on file with author).

145 See The Commonwealth of Mass. Commonwealth Health Ins. Connector Auth., Comment on Proposed Rule: Inadmissibility on Public Charge Grounds 3-4 (Dec. 10, 2018), https://www.mass.gov/files/documents/2018/12/10/public-charge-Health%20Connector-public-comments.pdf [https://perma.cc/JJX3-6LSK].

146 See Murphy v. NCAA, 138 S. Ct. 1461, 1477 (2018) (“[T]he anticommandeering principle prevents Congress from shifting the costs of regulation to the States.”). The proposed rule may also lead to labor shortages among home-health care workers, thereby increasing state costs for long-term care. See State of Cal. Office of the Attorney Gen., Comment on Proposed Rule: Inadmissibility on Public Charge Grounds 12 (Dec. 10, 2018) (on file with author). For a further discussion of the anti-commandeering principle, see infra text accompanying notes 152 & 171.

147 States fear that the rule will increase the caseload of their departments for child services. See, e.g., State of Vt. Agency of Human Servs., Comment on Proposed Rule: Inadmissibility on Public Charge Grounds 3 (Dec. 10, 2018) (on file with author).

148 See, e.g., Commonwealth of Mass., supra note 144, at 4.

149 Currently, Massachusetts uses a single form for enrolling in Medicaid, CHIP, and the state's exchange. The State's Attorney General explains that as a result of the rule, the state may need to create new forms and procedures for all three programs. Id.

150 45 C.F.R. § 155.405 (2018).

151 Cty. Welfare Dirs. Ass'n of Cal., Comment on Proposed Rule: Inadmissibility on Public Charge Grounds 4 (Dec. 6, 2018), https://www.regulations.gov/document?D=USCIS-2010-0012-34861 [https://perma.cc/NCQ5-PUP6]; Commonwealth of Mass., supra note 144, at 4.

152 See New York v. United States, 505 U.S. 144, 166, 173-83 (1992) (differentiating Congress' power under the spending clause from its power under the commerce clause). However, when Congress imposes conditions or burdens on the states using the spending power, “it must do so unambiguously.” Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). Some courts in the sanctuary state cases have found that the Executive Branch does not have authority to impose conditions on the states in the absence of Congressional action. E.g., City and County of San Francisco v. Trump, 897 F.3d 1225, 1234 (9th Cir. 2018).

153 Several courts have concluded that Sec. 1373 of the INA unconstitutionally commandeers states by prohibiting them from restricting the exchange of information related to immigration status with federal officials. See, e.g., New York v. U.S. Dep't of Justice, 343 F. Supp. 3d 213, 234-35 (S.D.N.Y. 2018); City and County of San Francisco v. Sessions, 349 F. Supp. 3d 924, 949-52 (N.D. Cal. 2018); City of Philadelphia v. Sessions, 280 F. Supp. 3d 579, 651 (E.D. Pa. 2017). The Northern District of Illinois held that Sec. 1373 did not unconstitutionally commandeer the states in City of Chicago v. Sessions, 264 F. Supp. 3d 933, 948-50 (N.D. Ill. 2017). This decision, however, relied on the view that the anti-commandeering rule only applied to federal laws that required state action, rather than those that prohibited state action. This distinction was significantly eroded by the Supreme Court's subsequent decision in Murphy v. NCAA, 138 S. Ct. 1461, 1478 (2018). See New York v. U.S. Dep't of Justice, 343 F. Supp. 3d at 234. See also Galarza v. Szalczyk, 745 F.3d 634, 644 (3d. Cir. 2014) (interpretation of immigration law to require states to detain suspected aliens “would violate the anti-commandeering doctrine of the Tenth Amendment.”).

154 Commonwealth of Va. Office of the Attorney Gen. et al., Comment on Proposed Rule: Inadmissibility on Public Charge Grounds 5-6 (Dec. 10, 2018) (on file with author).

155 Mass. Dep't of Public Health, Comment on Proposed Rule: Inadmissibility on Public Charge Grounds 2-3 (Dec. 10, 2018), https://www.mass.gov/files/documents/2018/12/10/public-charge-DPH-public-comments.PDF [https://perma.cc/LUX2-EAYD].

156 Id. at 3.

157 For a discussion of Medicaid's role in combatting the crisis, see Emma Sandoe et al., Policy Levers that States Can Use to Improve Opioid Addiction Treatment and Address the Opioid Epidemic, Health Affairs Blog (Oct. 2, 2018), https://www.healthaffairs.org/do/10.1377/hblog20180927.51221/full/ [https://perma.cc/63NS-TNKG].

158 Inadmissibility on Public Charge Grounds, 83 Fed. Reg. 51,114, 51,270 (proposed Oct. 10, 2018) (to be codified at 8 C.F.R. pts. 103, 212-214, 245, 248).

159 New York v. United States, 505 U.S. 144, 181 (1992) (“[T]he Constitution divides authority between federal and state governments for the protection of individuals. State sovereignty is not just an end in itself: ‘Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.’”) (citing Coleman v. Thompson, 501 U.S. 722, 759 (1991) (Blackmun, J., dissenting)).

160 Congress, through the INA, established the public charge determination. 8 U.S.C. § 1182(a)(4) (2018). However, Congress did not require DHS to issue any regulations, and Congress has taken no action in recent years to authorize or encourage the dramatic change of interpretation that the proposed rule would institute.

161 Gerken, supra note 42, at 1698.

162 See Bruce Jennings, Public Health and Civic Republicanism: Toward an Alternative Framework for Public Health Ethics, in Ethics, Prevention, and Public Health 30, 31-34 (Angus Dawson & Marcel Verweij eds., 2007); Parmet, Wendy E., Paternalism, Self-Governance, and Public Health: The Case of E-Cigarettes, 70 U. Miami L. Rev. 879, 907-918 (2016)Google Scholar.

163 See Rose, Geoffrey, Sick Individuals and Sick Populations, 30 Int'l J. Epidemiology 427, 428-29 (2001)CrossRefGoogle ScholarPubMed.

164 See Vaccines Protect Your Community, vaccines.gov, https://www.vaccines.gov/basics/work/protection [https://perma.cc/W33G-URQV].

165 Lawrence O. Gostin and Lindsay Wiley argue persuasively that this understanding of the social compact is reflected in the Supreme Court's opinion in Jacobson v. Massachusetts. Gostin & Wiley, supra note 45, at 122-24 (discussing Jacobson v. Massachusetts, 197 U.S. 11 (1905).

166 See Jacobson, 197 U.S. at 27.

167 See Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519, 536 (2012) (“The Framers thus ensured that powers which ‘in the ordinary course of affairs, concern the lives, liberties, and properties of the people’ were held by governments more local and more accountable than a distant federal bureaucracy.”) (citing The Federalist No. 45 (J. Madison)).

168 I have developed this argument more fully in Parmet, supra note 8, at 92-97; Parmet, supra note 162, at 914-15. Cities, in particular, have often been leaders in public health innovation. See, e.g., Diller, Paul A., Why Do Cities Innovate in Public Health? Implications of Scale and Structure, 91 Wash. U. L. Rev. 1219 (2014)Google Scholar.

169 New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) (referring to states as “laboratories” for “novel social and economic [policy] experiments”).

170 New York v. United States, 505 U.S. 144, 168 (1992). See also Murphy v. NCAA, 138 S. Ct. 1461, 1476-77 (2018).

171 For a fuller discussion of the problem of accountability with respect to health regulation, see Gluck & Huberfeld, supra note 33, at 1785-87.

172 See cases cited supra note 153.

173 To be sure, the proposed public charge rule differs from other federal laws that have been held to violate the anti-commandeering rule in that the text of the rule does not issue a directive to states. However, as noted above, the rule, if promulgated as proposed, would impose significant costs on the states, and would effectively require them to revise numerous policies and procedures without providing any financial support. See supra text accompanying notes 143-54. Perhaps more importantly, by undermining the state's ability to implement their health policies successfully, the regulations would undermine accountability in the same manner as do laws that violate the anti-commandeering rule.

174 Gluck and Huberfeld describe a similar pragmatism in their review of state responses to the ACA. As they note, officials in many red states that proclaimed opposition to the ACA still worked, often stealthily, to make the statute function in their state. Gluck & Huberfeld, supra note 33, at 1759-62.

175 New York v. United States, 505 U.S. at 181 (quoting Coleman v. Thompson, 501 U.S. 722, 759 (1991) (Blackmun, J., dissenting)).

176 Bulman-Pozen, Jessica, Federalism as a Safeguard of the Separation of Powers, 112 Colum. L. Rev. 459, 460 (2012)Google Scholar [hereinafter Safeguard]. In contrast, other scholars argue that federalism can also serve presidential interests, and that the Trump Administration has effectively relied on states to further some of the policy initiatives it has been unable to achieve through Congressional action. See Jacobs, Nicholas F. & Ewing, Connor M., The Promises and Pathologies of Presidential Federalism, 48 Presidential Stud. Q. 552, 558, 561-66 (2018)CrossRefGoogle Scholar.

177 See Safeguard, supra note 176, at 502.

178 See Galbraith, Jean, Cooperative and Uncooperative Foreign Affairs Federalism, 130 Harv. L. Rev. 2131, 2147-48 (2017)Google Scholar.

179 Bulman-Pozen, Jessica, Preemption and Commandeering Without Congress, 70 Stan. L. Rev. 2029, 2042 (2018)Google Scholar [hereinafter Without Congress].

180 Spiro, Peter J., Learning to Live with Immigration Federalism, 29 Conn. L. Rev. 1627, 1628-39 (1997)Google Scholar.

181 Without Congress, supra note 179, at 2036-40.

182 Safeguard, supra note 176, at 489.

183 City and County of San Francisco v. Trump, 897 F.3d 1225, 1231 (9th Cir. 2018). See also supra text accompanying note 69.

184 Jessica Bulman-Pozen argues that concern about executive preemption is especially warranted when the Executive acts without the formality of notice-and-comment rulemaking. Without Congress, supra note 179, at 2042.

185 See supra text accompanying notes 161-84.

186 See supra text accompanying notes 175-84.

187 See, e.g., New York v. U.S. Dep't of Justice, 343 F. Supp. 3d 213, 238 (S.D.N.Y. 2018); City & County of San Francisco v. Sessions, 349 F. Supp. 3d 924, 934 (N.D. Cal. 2018); City of Philadelphia v. Sessions, 309 F. Supp. 3d 289, 321 (E.D. Pa. 2017). The court in City of Chicago v. Sessions noted that “Congress has plenary power to regulate on the subject of aliens,” but nevertheless reviewed the merits of the City's constitutional and statutory claims. 264 F. Supp. 3d 933, 946-49 (N.D. Ill. 2017).

188 See cases cited supra note 153.

189 Id.