On immigration, Supreme Court wrong to allow ‘public charge’ rule
Last week, with the nation transfixed by the spectacle of Donald Trump‘s impeachment trial, the Supreme Court handed the president a win on immigration. In a 5-4 ruling, the high court allowed the administration to implement its revised “public charge” rule while legal challenges against it continue. The new rule makes some immigrants ineligible for permanent legal status if they use certain public benefits, like Medicaid, food stamps, and housing vouchers. Acting Homeland Security Deputy Secretary Ken Cuccinelli hailed the ruling, saying, “We’re happy to see the Supreme Court step in the way they did here.”
But the new public charge rule amounts to a wealth test for immigrants and should not have been approved — even on a temporary basis.
It limits the ability of working-class and low-income people to obtain lawful permanent residency. Not only will the rule will have harmful consequences for families in need, it represents another instance of the Supreme Court’s conservative majority enabling Trump’s xenophobic policies.
To be clear, this is an assault on lawful immigration. The public charge rule has nothing to do with illegal immigration or undocumented migrants. It does not affect DACA recipients or asylum-seekers. This rule only applies to legal immigrants seeking green cards.
The so-called public charge rule has existed for over a hundred years. Under the most recent regulations, from 1996, only someone who was primarily dependent on financial assistance from the government was considered a public charge. The rule was applied to people who were receiving sustained monetary aid. In the past, the New York Times notes, fewer than one percent of applicants were denied on public charge grounds.
Now the Trump administration has broadened the definition of public charge to include people who temporarily use non-cash benefits. In addition, the new rule allows immigration officials to deny a green card to anyone they think is likely to become a public charge. Of the roughly 544,000 people who apply for a green card each year, the Associated Press reports, about 382,000 could be potentially flagged for review under the new standard.
This rule change has led to confusion and uncertainty in immigrant communities, with people forgoing their health and housing needs rather than taking a chance at being rejected for a green card. The irony is that the government is being inconsistent: on one hand, some immigrants are eligible for government assistance — yet if they access this aid, they could be punished for doing so. Even if the Court were to ultimately strike down the revised rule, the damage has been done — many immigrants will likely avoid federal assistance out of fear, leading to unhealthy outcomes and economic instability.
On a broader level, it is troubling that the Supreme Court is functioning as the judicial arm of the Trump administration. The conservative majority has shown no qualms about breaking with precedent and settled law to enable Trump’s restrictive immigration policies. In September 2019, the court let the administration bar most Central Americans from seeking asylum in the U.S. In July 2019, it permitted the administration to divert $2.5 billion in Pentagon funding for construction of a border wall. In 2018, the Court upheld Trump’s travel ban on people from several Muslim-majority countries.
By aiding and abetting Trump, the Supreme Court undercuts its own legitimacy. Consider that the Court allowed the administration to rush the public charge case before them although it was still being heard by the lower courts. This kind of “judicial shortcut” is highly irregular — except in the Trump era. However, this Supreme Court has repeatedly allowed Trump’s policies to go into effect while they are still being litigated. The conservative majority seems especially comfortable with the Trump administration bypassing Congress and making radical changes to existing immigration law.
Sure, no one wants prospective immigrants who cannot provide for themselves to obtain a green card. Yet solid research shows that non-citizens are less likely to use federal public benefits than the native-born. When non-citizens do make use of available public programs, it is often for their citizen children. Most importantly, Congress has carved out exceptions for when they believe immigrant households can access government benefits. It is a violation of the principles of separation of powers for Trump to make this end-run around the legislative branch.
The Trump administration’s revision of the public charge rule is improper and heartless. Worse, the Supreme Court’s blessing of such action reveals its fundamentally partisan nature.
Raul A. Reyes is an immigration attorney and member of the USA Today Board of Contributors. A graduate of Harvard University and Columbia Law School, he is also a contributor to NBCNews.com and CNN Opinion. You can follow him on Twitter at @RaulAReyes, Instagram: raulareyes1.
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