The long, cruel history of the latest attack on immigrants

You may have heard that a coalition of 22 states, including New York, and six cities, including New York City, are suing to stop the implementation of a federal policy that’s become known as the “public charge rule,” though it’s really a redefinition of a long-established standard for denial of permanent resident status. What actually is this change, and why does it matter?

The idea of public charge evaluations is certainly nothing new. The concept dates back to before the United States existed as a country, when colonies set their own immigration rules, a power that carried over to the states after independence, before there were any federal immigration restrictions. The language used in public charge rules back then covered people deemed “infirm” or “vagrants” in addition to other broad categories like “idiots.” A federal version came in 1882, shortly after the enactment of the Chinese Exclusion Act. That year’s Immigration Act law formalized categories of exclusions, including “any convict, lunatic, idiot, or any person unable to take care of him or herself without becoming a public charge.”

The legislation did not specifically define what would lead someone to be deemed a likely public charge, leaving it up to regulation. For most of the history of public charge evaluations since then, it was understood to denote someone who was likely to become wholly dependent on the state, e.g. a person who might have a debilitating and degenerative condition who could not establish that they would have the resources to secure care for themself if and when they were no longer able to work. The rule did not generally cover the use of noncash programs like Medicaid that the recipient was otherwise entitled to receive. Denials under the public charge rule have always been relatively rare, typically only coming in cases where it was clear that someone was going to lose their ability to be self-sufficient. 

That was the understanding until 2019, when Stephen Miller, the White House aide who was the architect of the first Trump administration’s anti-immigration policy, was looking for any federal powers that could be used to restrict immigration and ramp up both enforcement and fear for immigrants and would-be immigrants. Among many other things he threw at the wall, Miller put in motion an update to the public charge rule that revamped what immigration evaluators could take into account. Applicants could now be barred for using or having used or even being deemed likely to use things like SNAP, federal housing assistance or even state-funded cash assistance programs, based on an inevitably subjective evaluation of their age, education, income, assets and assorted other characteristics.

Little on paper, real damage in practice

In the end, the rule appears to have had almost no actual impact on immigration benefits processing. It was initially blocked by federal judges before it could go into effect. The Supreme Court let it move forward in January 2020, only for the rule to be blocked again once the pandemic hit. President Joe Biden quickly rescinded the rule after he took office in 2021, returning public charge evaluations to their previous standards. As far as I know, from having spoken to a number of immigration practitioners and researchers during the entire fiasco, not a single person was denied residency solely on the basis of the expanded public charge definition in the time that it was in effect. Still, just because it did not have the impact intended doesn’t mean that it had no concrete or measurable effect.

Like much else in the Trump administrations, I think this effort should be understood partly as narrative-building one, with the narrative being that use of public programs, even local ones, would put a target on their backs if they ever tried to get permanent legal status in the future. Advocates and public officials worried that this narrative even without the rule change would be potent enough to shift behavior, and they were right. Some research and plenty of reporting have established that a significant number of immigrants dropped out of programs or refused to use services to which they were entitled out of fear that it would cause problems, even when the expanded rule would not apply. For example, there are widespread accounts of immigrant parents of children who are U.S. citizens pulling their kids out of programs like Medicaid out of concern that their children’s use of the program would splash back onto their own ability to get permanent legal status, despite this not being part of even the expanded analysis.

Who the rule actually reaches

It’s important to understand that the actual pool of people who both have access to federal benefits but could also be subject to a public charge denial is comparatively small. The Migration Policy Institute estimated in 2020 that the total number of people to whom the new rule might apply was about 167,000 nationwide out of its count of 22 million noncitizens in the country. That’s because most federal benefits are not generally available for people without permanent resident status – the group subject to the public charge test. (The public charge question does not apply to those with green cards seeking to become citizens.) That means that it would apply mainly to people who had some legal status — not residency, refugee or asylum status, or various other types of humanitarian visas — that still allowed them to receive benefits, or a green card holder who suddenly began using certain benefits within six months of having become a permanent resident.

The new rule’s requirement that evaluators perform some vague assessment of possible future benefits use that would require an applicant to somehow prove that they would not be in a position to need benefits in perpetuity. Like many Trump second term policies, it’s awfully vague, insinuating that people might be punished for benefits used by their children but not laying out any specific parameters for that, among other uncertainties. That could theoretically capture some more people. Nonetheless, the purpose of that rule change in its current form seems less about denying applications and more about scaring immigrants into self-overcorrection. That is, the hope is to keep people away from services that could improve or stabilize their lives, thereby making life here untenable and thereby encouraging them to leave. That goal of harassing and frightening immigrants into self-deportation is the white whale of this white nationalist administration, which lacks the manpower and capability to actually detain and deport everyone in the country that it would like to see gone. As a side benefit, the new rule added mountains of paperwork to green card applications, making them more cumbersome and adding places where officers could find errors that could themselves be used as reasons for denials.

A door opened in 1996

Once more, the administration is building on legacies and using tools that had already been laid out for them. In 1996, laws signed by President Bill Clinton authorized consular agents abroad to also deny immigrant visas on public charge grounds, tightened up requirements for sponsors of immigration applicants — people who can commit to financially supporting an applicant in the event that they become unable to do so, themselves — and made large categories of immigrants explicitly ineligible for benefits that they may have been able to utilize prior. Crucially, Clinton also negotiated to actually strip away legislative language that would have specifically defined public charge in the law, paving the way for Trump to come up with this enormously expanded definition later.

The argument of the states and cities suing to block the new rule is pretty straightforward: they’ll have to deal with the fallout of the rule change, including increased homelessness, food insecurity, worse health outcomes and so on, as their residents pull back from using services once available to them. It is a reasonable enough argument, but the Supreme Court did allow a similar expanded definition of public charge to go into effect before.

Likely the only way for this issue to be definitively resolved in a fashion that allows the public to feel comfortable using the benefits  they are entitled to is for Congress to actually define the term in the law, and to take away the ability for presidents to redefine it as they please whenever they want. Add that to a lengthy docket of considerations for a post-midterm Congress after what is widely expected to be a Democratic wave year, driven in some large part by revulsion at Trump’s anti-immigration sadism and the ways that it is affecting us all.