Jonathan P. Baird

It is hard to keep up with all the attacks raining down on immigrants from the Trump Administration. I know I immediately think of children in cages and family separations at the border. These have garnered the most attention.

While these attacks are directed against undocumented immigrants, less well known are the attacks coming down on legal immigrants. Central to the Trump Administration’s effort to restrict legal immigration is their new expanded public charge rule.

When non-citizens apply to enter the United States or when they seek to adjust their status to lawful permanent resident, they are subject to public charge rules. Such rules have been in effect since the 1880’s. The government has considered financial resources in determining whether an individual can obtain a green card. Green cards allow foreign nationals the right to live and work permanently in the United States.

Up until now, the rules have been narrowly tailored. The government has defined public charge based on whether the applicant is primarily dependent on monthly government cash assistance or long-term institutional care.

What the Trump Administration proposes to do in their new rule is change green card criteria to greatly expand who could be considered a public charge. Under the rule, if you receive public benefits like food stamps, Medicaid or Section 8 housing vouchers, you could be considered likely to become a public charge and you could be denied a green card.

The public charge rule is slated to go into effect on October 15. After the rule was promulgated by the Department of Homeland Security last fall, the agency received over 266,000 public comments, with the overwhelming majority opposed to the rule change.

It is hard to overstate what a radical departure the new public charge rule is from its current incarnation. The rule broadly discriminates against low-income people. It basically says if you do not have significant wealth, do not bother to come here. You are not welcome.

New public charge would touch many more people than the old rule, potentially millions. It already has had and will have a chilling effect on the willingness of those seeking a green card to access public benefits. People who are legally entitled to public benefits will not apply or they will disenroll if they believe, no doubt correctly, that the receipt of such benefits will negatively affect their chance to obtain permanent residence here.

I think the rule is very consistent with President Trump’s January 2018 utterance:

“Why are we having all these people from shithole countries come here?”

Trump famously said that he wants to take in immigrants from great European countries like Norway.

Instead of Emma Lazarus’s “give me your tired, your poor, your huddled masses” we now have “give me your hedge fund managers, your techies and your rich white professionals hungering to get over”. The new rule hits directly at people coming from poorer countries, which certainly includes green card seekers from Latin America, Africa, and South Asia.

While the new rule speaks of looking at the totality of circumstances, it delineates positive and negative factors which would be weighed. For example, the rule heavily weighs against people with disabilities who require treatment and who lack private insurance. A low credit score, absence of a college degree and lack of English language skills also hurt. On the other hand, if you have income over $63,000 for a family of four, you are golden.

The rule flies in the face of the historical experience of America as a nation of immigrants. For generations, foreign nationals have come to America, penniless, with nothing but the clothes on their back. They may have needed a helping hand at first but many became upwardly mobile. Their children have then obtained more education, gotten higher earnings and ended up in higher-paying jobs than their parents.

This whole experience is now being actively disregarded. Public charge is a perfect distillation of racial and class bias.The message is we only want wealthy white people to come to America. The new green card criteria would have a racially disparate effect as people from countries with low incomes are disproportionately people of color.

It is likely public charge will also have a detrimental effect on families’ health. For example, people seeking a green card may well forego essential medical care like chemotherapy or needed insulin. Or newborns will not obtain nutritional assistance they need to thrive.

Whether the new public charge is legal remains to be seen. It is certain to be challenged in court. It is another example of the Trump Administration enacting policy without legislative input. It also is a way to shrink the safety net, part of their effort to deconstruct the administrative state.

Trump supporters always defend his immigration policies on the basis that undocumented people are trying to jump ahead in the line. But with public charge, the attack is on people who are in the line.

Behind this rule is an utterly irrational fear and hatred of immigrants, including those classified legal. Creating fear of immigrants has been a central objective of this Administration. That is tragic because America is so much better than this.