On Oct. 29, the Supreme Court agreed to rule on whether 14 states have standing to challenge President BidenJoe BidenManchin to vote to nix Biden's vaccine mandate for larger businesses Congress averts shutdown after vaccine mandate fight Senate cuts deal to clear government funding bill MORE's decision to rescind President TrumpDonald TrumpBaldwin calls Trump criticism following 'Rust' shooting 'surreal' Haley hits the stump in South Carolina Mary Trump files to dismiss Trump's lawsuit over NYT tax story MORE's regulation barring immigration to anyone who might end up on the public assistance rolls, known as the “public charge” rule.
The California-based U.S. Court of Appeals for the 9th Circuit ruled the states did not have standing, but that decision was appealed, and the high court decided to weigh in. They probably will hear oral arguments late this month.
When the Biden administration announced that it would no longer enforce the Trump administration’s public charge regulations on March 9, 2021, it stated that the regulations were unfair to individuals who “access health benefits and other government services available to them” and “was not in keeping with our nation’s values.”
It may be unfair to immigrants who rely on public benefits, but I don’t think it violates our nation’s values. To the contrary, the history of the public charge provision indicates that our country has never wanted to admit immigrants who are likely to need financial assistance.
The public charge provision states that, “Any alien who … at the time of application for a visa, or … at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible.”
The provision states further that in determining whether an alien is inadmissible because he is likely to become a public charge, consideration should be given to his (I) age; (II) health; (III) family status; (IV) assets, resources, and financial status; (V) education and skills; and any affidavit of support — a contract that someone, usually a relative, signs agreeing to support the prospective immigrant if he becomes unable to support himself.
Making the determination
Under the prior DHS regulations, which had been in effect since 1999, only cash government benefits that the alien has or will receive were considered in determining whether he is likely to become a public charge. Consideration wasn’t given to non-cash benefits such as the Supplemental Nutrition Assistance Program (SNAP), or food stamps; Medicaid; or housing subsidies. Emphasis was placed on whether he would be “primarily dependent on the government for subsistence.”
On Aug. 4, 2019, the Trump administration published regulations that added consideration of non-cash benefits to “better ensure that aliens subject to the public charge inadmissibility ground are self-sufficient, i.e., do not depend on public resources to meet their needs, but rather rely on their own capabilities, as well as the resources of family members, sponsors, and private organizations.”
The regulations say that the term ‘‘public charge’’ means a person who receives one or more designated public benefits for more than 12 months in the aggregate within any 36-month period.
The determination must be based on the totality of the circumstances in an applicant’s case.
History of the public charge provision
Public charge provisions go back as far as America’s colonial period when several colonies enacted protective measures to prohibit the immigration of individuals who might become a drain on public resources.
In the nineteenth century, eastern seaboard states such as New York and Massachusetts enacted state laws that prohibited the immigration of an alien deemed to be a “person unable to take care of himself or herself without becoming a public charge.”
The Immigration Act of 1882 made the public charge provision a federal law, using the same language that was used in the state statutes. The Immigration Act of 1891 created a federal Immigration Service to inspect aliens seeking admission to the United States. It made “all idiots, insane persons, paupers or persons likely to become a public charge” inadmissible. The Immigration Act of 1903 made “beggars” inadmissible as well. The Immigration Act of 1907 added language to exclude potential immigrants who are “mentally or physically defective being of a nature which may affect the ability … to earn a living."
Public charge determinations
Because the law does not provide a specific definition of “public charge,” judicial and administrative decisions have played important roles in defining the provision. But these decisions have left it primarily up to the discretion of the enforcing agencies and their officers. It seems likely therefore that the courts will view the Trump administration’s regulations as a legitimate, permissible interpretation of the provision.
On the other hand, I don’t expect the courts to hold that a new president lacks authority to establish his own guidelines.
The main change is adding consideration of non-cash benefits — and this is consistent with the history and development of the public charge provision, which reflect an aversion to paying for the services immigrants need if they can’t support themselves. And American taxpayers have to pay for benefits that support such immigrants whether the benefits are cash or non-cash.
This is why an affidavit of support will be considered in making the public charge determination. It shifts the burden of supporting an immigrant who becomes a public charge from the American taxpayers to the immigrant’s family — or whoever else is willing to assume that responsibility.
The aversion to covering such expenses is reflected also in the lawsuit that Texas and 13 other states filed to prevent Biden from rescinding the regulations. In it, Texas Attorney General Ken Paxton said:
“Without the public-charge rule, our Medicaid budget and other vital services will explode and be spread too thin, costing taxpayers millions more and reducing the quality of service we can provide.”
To what extent should American taxpayers be required to bear such expenses? Presidents answer that question.
The Biden administration’s refusal to enforce Trump’s regulations makes it appear that Biden is more concerned about the needs of the immigrants than about the financial consequences for taxpayers.
I think it would be better if Congress revised the provision to provide more guidance on how it should be implemented instead of leaving it up to whoever happens to be in the White House — or to unelected judges in our federal courts.
Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow his blog at https://nolanrappaport.blogspot.com.