{"id":3841,"date":"2021-12-08T01:35:04","date_gmt":"2021-12-08T01:35:04","guid":{"rendered":"https:\/\/live-journal-of-law-and-public-policy.pantheonsite.io\/?p=3841"},"modified":"2021-12-08T01:35:04","modified_gmt":"2021-12-08T01:35:04","slug":"free-from-charge-revamping-the-public-charge-rule","status":"publish","type":"post","link":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/2021\/12\/08\/free-from-charge-revamping-the-public-charge-rule\/","title":{"rendered":"Free From Charge: Revamping the Public Charge Rule"},"content":{"rendered":"\n

(Source<\/a><\/em>)<\/p>\n

The Biden administration <\/span>must confront<\/span><\/a> a <\/span>plethora of immigration issues<\/span><\/a> following the <\/span>immense number of restrictions<\/span><\/a> the Trump administration placed on immigrant applicants. These <\/span>\u201cland mines\u201d<\/span><\/a> of Trump-era anti-immigrant policies are rooted deep- “buried under layer after layer of bureaucratic actions and then [can] essentially devastate the system in untold ways that aren\u2019t discovered until policies are applied in particular cases.” One land mine worth addressing is the controversial \u201c<\/span>Public Charge<\/span><\/a>” Rule. <\/span><\/p>\n

In 1882, Congress first implemented the “Public Charge” Rule as a relatively vague statute that allowed the U.S. government to deny a visa to anyone who \u201c<\/span>is likely at any time to become a public charge<\/span><\/a>.\u201d The Public Charge Rule was <\/span>designed to prevent<\/span><\/a> noncitizens from entering and remaining in the country if they are likely to require some undesignated degree of public assistance. Laws frequently identify <\/span>self-sufficiency of noncitizen applicants<\/span><\/a> as a compelling government interest and cite it as justification for this exclusion rule. This Rule is also meant <\/span>to remove the incentive for illegal immigration provided by the availability of public benefits<\/span><\/a>. However, the 1882 federal law did not provide a <\/span>set definition of what a \u201cpublic charge\u201d is, nor did it provide any specific guidelines to use in identifying a \u201cpublic charge.\u201d<\/span><\/a> After the <\/span>Immigration and Nationality Act<\/span><\/a> was implemented in 1952, the only change to the statutory language was a new provision underscoring the <\/span>discretionary authority of administrative officers<\/span><\/a> in the Department of State and the Immigration Service to determine the definition of a public charge. The current <\/span>controversy<\/span><\/a> over the Public Charge Rule stems from the lack of defined standards specified within the federal law.<\/span><\/p>\n

The Trump administration implemented <\/span>an unprecedentedly harsh interpretation<\/span><\/a> of the <\/span>Public Charge Rule<\/span><\/a> in October of 2019. Under the 2019 Rule, government officials could deny green cards to noncitizens if the officials believed the recipients would receive, or were likely to receive, <\/span>public benefits like food stamps, Medicaid, or housing vouchers<\/span><\/a>. Prior to the 2019 Rule, the <\/span>1999 Field Guidance Rule on Deportability and Inadmissibility on Public Charge Grounds <\/span><\/a> helped define \u201cpublic charges.\u201d The 1999 guidance narrowly interpreted \u201cpublic charges\u201d and only focused on two potential factors: <\/span>\u2018\u2018either (i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense<\/span><\/a>.\u201d The 2019 Rule <\/span>redefined<\/span><\/a> a \u201cpublic charge\u201d as a non-citizen who receives one or more public benefits for more than 12 months in the aggregate within any 36-month period. Furthermore, the 2019 Rule <\/span>expanded the list of public assistance programs<\/span><\/a> that may be considered dispositive factors for a “public charge” determination, such as <\/span>Medicaid, Supplemental Nutrition Assistance Program (SNAP) benefits, and subsidized housing, among other previously unconsidered benefits<\/span><\/a>. In justifying the 2019 Rule, the Trump administration cited its desire to <\/span>\u201cprotect benefits for American citizens\u201d<\/span><\/a> and stated that \u201c<\/span>immigrants must be financially self-sufficient<\/span><\/a>\u201d in order to do so. Proponents of the Public Charge Rule also believed that it provided <\/span>formal regulation<\/span><\/a> to a Rule that was previously only interpreted by an informal Clinton-era guidance that lacked statutory support. Supporters further believed that the 1999 guidance was counteractive to the <\/span>government’s compelling state-interest<\/span><\/a> in the self-reliance of immigrant applicants. In their eyes, the 2019 Rule addresses the issue of immigrants’ public welfare usage, where immigrants <\/span>“are creating a significant burden on public coffers.”<\/span><\/a> Despite these beliefs, the evidence suggests strongly that – even with usage of public benefits – <\/span>immigrants tend to grow the US economy<\/span><\/a> by nearly every measure. On the other hand, opponents condemned the 2019 Rule as a<\/span> race-based<\/span><\/a> \u201cwealth test\u201d<\/span><\/a> that targets poor immigrants. Indeed, the implementation of the 2019 Rule caused immigrants to face devastating consequences. <\/span><\/p>\n

Despite the fact that the Public Charge Rule only <\/span>applies to some programs and some immigrant applicants<\/span><\/a>, there was still a <\/span>visible chilling effect<\/span><\/a> on access to public benefits across the nation. Eligible immigrant families\u2014including those not actually subject to the rule\u2014avoided enrolling in public benefit programs for fear of jeopardizing their immigration standing. The 2019 Well-Being and Basic Needs Survey (WBNS) found that<\/span> more than one in seven adults in immigrant families<\/span><\/a> reported that they or a family member avoided a noncash government benefit program from this fear. The same study also found that more than one in four adults in low-income immigrant families experienced this <\/span>chilling effect<\/span><\/a>. The Coronavirus pandemic only exasperated this disturbing phenomenon. Immigrants felt discouraged from lawfully accessing medical care and public benefits, \u201c<\/span>hindering nationwide efforts to contain the highly contagious virus<\/span><\/a>.\u201d The damage already set in even after a <\/span>temporary injunction<\/span><\/a> blocked the use of the new Public Charge Rule due to the pandemic. Immigrant families were already <\/span>disproportionately at risk of economic hardships<\/span><\/a> from the pandemic, and their hesitation to access public resources only worsened their risk of medical hardships. <\/span><\/p>\n

The eradication of Trump-era immigration policies was a central aspect of President Biden\u2019s campaign platform. An Illinois District Court officially <\/span>deemed the 2019 Rule unlawful<\/span><\/a> and vacated the Rule in March of 2021. The Biden administration declared that <\/span>it would no longer defend the regulation<\/span><\/a> in court. The Biden administration has instead <\/span>reverted back to the 1999 Field Guidance Rule<\/span><\/a>. This means that government officials will<\/span> no longer consider<\/span><\/a> a person’s receipt of Medicaid (except for long-term institutionalization), public housing, or SNAP benefits as part of the public charge inadmissibility test. However, the Supreme Court recently <\/span>agreed to hear a lawsuit<\/span><\/a> brought by over a dozen states <\/span>challenging the Biden administration\u2019s vacating the policy<\/span><\/a>. Led by <\/span>Arizona Attorney General Mark Brnovich<\/span><\/a>, the lawsuit is spurred by the belief that the public charge rule is a \u201c<\/span>commonsense immigration policy that ensures people seeking green cards or American citizenship are able to work and financially support themselves<\/span><\/a>.\u201d While the court will solely be focusing on <\/span>the procedural question of whether states may even bring the challenge in the first place<\/span><\/a>, an affirmative decision by the court can spell even more trouble for immigrants as well as <\/span>further stain the Biden administration’s immigration policy<\/span><\/a>.<\/span><\/p>\n

A modern reinterpretation of the term “public charge” may help alleviate these issues. The Department of Homeland Security (DHS) <\/span>recently sought public input<\/span><\/a> through an <\/span>Advance Notice of Proposed Rulemaking (ANPRM)<\/span><\/a> as to how the DHS should define the term \u201cpublic charge,\u201d pinpoint which public benefits are applicable, and how to determine the mandatory statutory factors in assessing whether a noncitizen is likely to become a public charge. In some ways, the Biden administration has its hands tied when it comes to eliminating the Public Charge Rule- there is a <\/span>delineated requirement<\/span><\/a> that DHS consider certain factors when determining whether a noncitizen would be a public charge. As previously mentioned, however, there is no specific definition of a public charge in the law, and <\/span>there is no mention of public benefits within the law itself<\/span><\/a>. The Rule needs to be revamped so it no longer renders immigrants<\/span> fearful of accessing the resources they are legally entitled to use.<\/span><\/a> <\/span><\/p>\n

While the absence of a set definition is the <\/span>source of the current turmoil<\/span><\/a>, it also provides some leeway for the Biden administration to redefine the Rule. Courts have historically deferred to Congress in their determination of immigration issues, citing Congress\u2019s <\/span>plenary and sovereign power to set limits as to who may be admitted to the country<\/span><\/a>. Similarly, Congress adopted a <\/span>\u201chands-off\u201d position<\/span><\/a> by <\/span>allowing the executive branch to dictate immigration policies<\/span><\/a>. The Biden administration still has the power to alleviate immigrants\u2019 concerns by drawing a clear line in the sand. The revamped Public Charge Rule, so to speak, ought to exclude from consideration any public benefits that immigrants would have already been eligible for regardless of their immigration status. Such a change would end the confusion and concern faced by immigrant communities that have <\/span>needlessly risked their health <\/span><\/a>, especially in light of the <\/span>disproportionate impact of the pandemic on immigrants<\/span><\/a>. This way, the Public Charge Rule may still serve its intended purpose without furthering the harm already done. While the Biden administration has many battles ahead, this is one hill worth dying on- not only for the improvement of an already convoluted immigration process, but for the improvement of the nation’s post-pandemic public health as well.<\/span><\/p>\n\n\n\n

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About the Author:<\/strong> Nicole Belenitsky is a second-year student at Cornell Law School. Nicole graduated from the Macaulay Honors College at Baruch College where she studied Political Science as well as Communication Studies with a focus on rhetoric and public advocacy. She is an Online Associate for Cornell Law School’s Journal of Law and Public Policy’s The Issue Spotter. She currently serves as the Social Chair for If\/When\/\/How: Lawyering for Reproductive Justice as well as Social Chair for the Jewish Law Students Association.<\/p>\n<\/div><\/div>\n\n\n\n

Suggested Citation:<\/strong> Nicole Belenitsky, <\/span>Free From Charge: Revamping the Public Charge Rule<\/span><\/i>, <\/span>Cornell J.L.& Pub. Pol\u2019y, The Issue Spotter (<\/span>December 7, 2021), https:\/\/live-journal-of-law-and-public-policy.pantheonsite.io\/?p=3841.<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

About the Author: Nicole Belenitsky is a second-year student at Cornell Law School. Nicole graduated from the Macaulay Honors College at Baruch College where she studied Political Science as well as Communication Studies with a focus on rhetoric and public advocacy. She is an Online Associate for Cornell Law School’s Journal of Law and Public…<\/p>\n","protected":false},"author":1,"featured_media":3843,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[15,18,21,28],"tags":[197,811,1199,1257,1260,1564],"class_list":["post-3841","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-authors","category-feature","category-spotters","category-student-blogs","tag-biden","tag-immigration","tag-policy","tag-public-charge","tag-public-health","tag-trump"],"acf":[],"_links":{"self":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts\/3841","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/comments?post=3841"}],"version-history":[{"count":0,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts\/3841\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/media\/3843"}],"wp:attachment":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/media?parent=3841"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/categories?post=3841"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/tags?post=3841"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}