The Ignoble Career of the Public Charge Rule, Part 1
Restricting the Public Charge Rule Hurts the People Congress Says It Wants to Help
Hi, I’m Alison Peck and this is How We Got Here, a journey through the history of United States immigration law with bulletins from the front lines of today, by a law professor and immigration lawyer.
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On May 17, the Senate passed a resolution disapproving the Biden administration’s rule regarding when a noncitizen will be denied admission on the grounds that they are “likely to become a public charge.” The House is scheduled to vote on the resolution soon. If passed by Congress, President Biden has already said that he would veto it.
Senate Republicans (and two Democrats, Manchin and Tester) voted to disapprove the rule. Those senators appear to prefer a version of the rule promulgated (and then enjoined) during the Trump administration, denying immigration relief to a noncitizen if they have accessed benefits, or if their circumstances suggest they might need any benefits, even for a short time. The Biden rule would deny eligibility only if a noncitizen’s circumstances suggest they would be primarily dependent on the government for support.
What does this really mean? I’ll offer two answers: one from today and, next week, one from the past.
Should Noncitizens Be Discouraged from Receiving Benefits They’re Eligible for By Law?
The public charge resolution essentially boils down to a dispute over whether noncitizens should be penalized for receiving public benefits that federal and state laws say they are eligible for.
It’s important to note that this debate isn’t about what benefits should be offered to noncitizens. Those questions are set by federal and state welfare law, not immigration law or the Biden rule.
Under those welfare laws, eligibility already depends a lot on immigration status, and the more secure your status, the greater your eligibility. For example, a permanent resident is eligible for SNAP (food stamps), but an undocumented person is not. And when it comes to Medicare, even permanent residents aren’t eligible for five years, regardless of age or need.
The Rule Mostly Hurts People Who Are Here Lawfully
But people who are here lawfully don’t need the kind of immigration relief that could be denied by the public charge rule, right? Wrong, because even people who are here lawfully – meaning 77 percent of the noncitizens in the U.S. – may later seek another form of status (such as a green card or citizenship). At that time the public charge rule will be applied to decide if their application should be granted.
And the few federal benefits programs that do extend to undocumented people, like the federal school lunch program and the Supplemental Nutrition Program for Women, Infants, and Children (WIC) are often geared to protect vulnerable kids, like DREAMERS. Those kids may someday have a potential pathway to a visa, but a restrictive public charge rule could mean that they’ll get rejected because they got lunch at school. Tough choice.
Even if You’re Worried about Scarce Resources, the Public Charge Rule Is Shooting at the Wrong Target
What concerns Senate Republicans is the idea of noncitizens coming to the United States for the purpose of consuming public benefits, or of the government spending scarce resources to help noncitizens instead of citizens.
Some of these concerns are misplaced, since undocumented people mostly aren’t eligible for benefits anyway. For those who are still concerned about conserving federal welfare dollars, however, Congress could change federal benefit eligibility rules to define and exclude the people whom it truly does not want to help, rather than using the public charge rule to punish those (like permanent residents and undocumented kids) whom it has said by law it does want to help. As Alex Nowrasteh of the CATO Institute has said, “It is far easier and cheaper to build a higher wall around the welfare state, instead of around the country.” The public charge rule doesn’t do that; it only scares away people from using benefits they’re legally eligible for.
Looking Ahead: A Look Back
Next week, I’ll take a look at the origins and history of the public charge rule, which has been part of federal law for 141 years (after an earlier career as a state provision). After all this time you’d think we would know what it means. We don’t, which is why it continues to be kicked around like a political football. Stay tuned.