Heather Alarcon is Senior Director of Legal Services at the Association of American Medical Colleges, which joined an amicus brief in support of the respondents in Department of Homeland Security v. Regents of the University of California.

The Supreme Court’s 5-4 decision vacating the rescission of the Deferred Action for Childhood Arrivals program is a victory for health care workers and their patients across the country. Every day that DACA recipients are here is to our mutual benefit. The enthusiasm that greeted the court’s ruling is of course tempered by the understanding that this victory could still be cut short by the Trump Administration, and the real work of pursuing a path to citizenship for DACA workers is ongoing. As the administration, and ultimately Congress, consider their next steps with regard to the DACA program, we urge them to carefully assess the nation’s strong reliance interest on DACA health care workers during the COVID-19 pandemic and beyond.

In October 2019, the Association of American Medical Colleges submitted an amicus brief on behalf of 33 health professional organizations, including the American Medical Association, the American Nurses Association and the Federation of American Hospitals, in support of the respondents in Department of Homeland Security v. Regents of the University of California. There were, at the time, 27,000 DACA health care workers in the U.S. (a number now estimated at 29,000), including nurses, physician assistants, technologists, home health aides and physicians, who together provide needed health services to millions of patients each year. The U.S. has faced a shortage of health care professionals across the country for years: The demand for health care workers has continued to outstrip the rate at which new workers can be trained and enter the workforce. At the heart of our brief was the threat to public health posed by the loss of tens of thousands of qualified health care workers in the context of a health care worker shortage. We warned:

The risk of a pandemic … continues to grow, since infectious diseases can spread around the globe in a matter of days due to increased urbanization and international travel. These conditions pose a threat to America’s health security – its preparedness for and ability to withstand incidents with public health consequences. To ensure health security, the country needs a robust health workforce.

Within months, this threat became a sudden reality in the form of the COVID-19 pandemic. In the areas hit hardest in the first wave, COVID-19 exacerbated the risks presented by a health care worker shortage, arriving in some cities not over the course of years, but within days. In addition to an inadequate supply of ventilators, PPE and rapid testing, the shortage of critical-care health care workers itself presented an acute crisis over the past few months in some parts of the country. This crisis arose not simply from the increased demand presented by unprecedented numbers of critically ill patients, but also because of health care providers themselves becoming sick. Despite deployment of safety precautions, front-line health care workers caring for COVID-19 positive patients are still far more likely to be infected and become seriously ill than other patients.

The need for more health care workers — both to care for an overwhelming number of patients and to backfill staff absent due to recovery or quarantine — led states with “hot spots” to seek every qualified professional, summoning physicians out of retirement and encouraging medical schools to approve the early graduation of fourth-year medical students. However, unlike ventilators or N-95 masks, new health care workers cannot be quickly manufactured to meet a pressing need: It takes at least eight months to become a paramedic, four years to earn a B.S. in nursing and up to 10 years to train a physician.

In April, the Supreme Court granted the respondents’ motion to file a supplemental brief highlighting the contributions of DACA recipients during the pandemic. The brief provided examples of individual health care workers already in evidence before the court: an emergency physician resident in San Francisco, a physician in Boston, a paramedic in Houston, a medical intern in St. Louis, an intensive care nurse in Arkansas, a registered nurse in New Jersey, a homecare worker for the elderly in California and a surgical technician in El Paso. There are also DACA recipients working in non-health care professions around the country that contribute meaningfully to the response to the pandemic, such as a DACA recipient scientist from Berkeley who helped develop a device for rapid coronavirus testing to facilitate free coronavirus testing in California. These examples are but of a few of the currently estimated 10,000 DACA recipients working in hospitals, 6,000 diagnosing and treating patients, 7,000 working as health aids and support workers and 5,500 working as health technologists and technicians.

DACA workers also exemplify the benefits of a diverse workforce, as they apply their unique perspectives to expand their impact. For example, a DACA recipient neurologist in Chicago, in addition to assessing and caring for patients whose COVID-19 cases resulted in strokes or other neurological symptoms, has comforted patients in their native language, and has been able to communicate with the patients’ families about their conditions and how the family can protect themselves.

COVID-19, having already claimed roughly 118,000 American lives at the time the Supreme Court issued its holding, is believed to still be in its early stages. Even now, after months of social distancing and numbers low enough for governors to lift stay-at-home orders, the national case count has remained stubbornly steady at about 20,000 new confirmed infections each day for weeks. Scientists have laid out various projections for the pandemic, couching their predictions with the watchful tentativeness of a meteorologist monitoring a hurricane just off the coast. We simply do not know with absolute certainty how badly the next surge will hit, or when. What we do know is that it is still going strong and will be with us for the foreseeable future.

Moving forward, should the administration elect to revive its plan to rescind DACA, an average of 1,000 DACA recipients will lose their work authorization every day, about 25,000 each month. Some number of these will be health care workers, and although they may be able to petition for delayed deportation, they would not be authorized to work. Each week that a DACA emergency room physician goes without a license represents hundreds of patients that physician might have seen, diagnosed, monitored for signs of crashing or resuscitated. It also represents an ER team that has lost a teammate and may need to compensate with additional shifts or longer hours to meet patient demand.

There is, at present, a limit to the number of variables in this crisis that we are able to control. Avoiding voluntary depletion of our health care workforce, however, is entirely within the administration’s discretionary authority. On the day of the Regents oral argument, President Donald Trump tweeted: “If Supreme Court remedies with overturn, a deal will be made with Dems for them to stay!” As part of our response to the ongoing pandemic, and to avoid unnecessary harm to patients across the country, we urge the administration to allow DACA recipients to stay, to continue their education and to contribute to our society, while working with Congress on a permanent legislative path to citizenship for Dreamers, a bipartisan resolution that is supported by a large majority of Americans.

Posted in Department of Homeland Security v. Regents of the University of California, Trump v. NAACP, Wolf v. Vidal, Featured, Symposium on the court's ruling in DHS v. Regents of the University of California, Trump v. NAACP and Wolf v. Vidal

Recommended Citation: Heather Alarcon, Symposium: As administration weighs next steps, it must consider that millions of American patients rely on DACA health care workers, SCOTUSblog (Jun. 19, 2020, 2:16 PM), https://www.scotusblog.com/2020/06/symposium-as-administration-weighs-next-steps-it-must-consider-that-millions-of-american-patients-rely-on-daca-health-care-workers/