Public Charge and Political Posturing
America is a nation of immigrants. The United States is also a country of contradictions. Nowhere is that more apparent than the immigration law principle of public charge.
The concept of public charge entered U.S. immigration through the Immigration Act of 1882 as part of our early federal immigration laws. From its inception, public charge allowed the U.S. government to refuse certain immigrants if they might need certain types of government assistance. And yet a year later, Emma Lazarus wrote the famous lines in “The New Colossus,” (‘Give me your tired, your poor, Your huddled masses yearning to breathe free…”), later to be enshrined at the Statue of Liberty.
This duality continues to manifest itself today in our fractured political environment. It was extremely disheartening when the Democrat-controlled Senate on May 17, 2023 passed Senate Joint Resolution 18: A joint resolution disapproving of the rule submitted by the Department of Homeland Security relating to “Public Charge Ground of Inadmissibility.” The Biden Administration quickly announced its intention to veto the Resolution if passed by the House of Representatives, which at this point seems likely to happen. Hopefully, President Biden will follow through on his word.
The 2022 Public Charge Rule, which restores and clarifies over 20 years of relatively settled public charge guidance, allows qualified immigrants and their families to access benefits like healthcare, housing, and nutritional assistance that they are legally eligible for under the law without fear of collateral immigration consequences. Its critically important for immigrants and their families to know the 2022 Public Charge Rule remains in full effect despite the Senate vote (as well as the looming House vote) and that no one should be dissuaded from accessing benefits to which they are currently entitled. Unfortunately, because this effort to void an existing regulation is a nuanced political procedure, it will undoubtedly stoke unnecessary fear and potentially effect access to benefits for both U.S. citizen children and their immigrant parents.
In the fraught circumstances of the current stressed immigration system and the backdrop of a debt ceiling crisis and the end of Title 42, this Resolution seems timed to stoke fear. A sponsor of the Resolution, Senator Roger Marshall of Kansas, effectively admitted as much. We saw similar tactics used by the Trump Administration with the 2019 Public Charge Rule, which was struck down by the courts and withdrawn by the Biden Administration. For all its bluster, the 2019 Rule, during its effective period, resulted in zero public charge findings of inadmissibility.
The Kaiser Family Foundation has outlined in detail how fear mongering policies like the 2019 Trump Public Charge Rule significantly and negatively impacted the lawful use of benefits, resulting in immigrants and their families forgoing needed assistance for which they were legally eligible. In particular, U.S. citizen relatives of lawfully admitted individuals, especially children, were scared out of using benefits that they were eligible for, including food and health care benefits. In finalizing the 2022 Public Charge Rule, the Department of Homeland Security carefully crafted a rule that was designed to avoid the widespread “chilling effects” on lawful benefit use from the outset.
The type of grandstanding exemplified by this Senate Resolution is a cheap parlor trick intended to mask the United State’s deeper and more complex economic, political, and social issues. Perhaps it is time that Congress embraced Emma Lazarus’s view of America by taking fair, sensible, and frankly, more thoughtful steps to fix the immigration system without injecting fear into our nation’s immigrants and their families who, like their predecessors from over a century ago, arrive at our country yearning to breathe free.
