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The Prospect has reported on numerous regulatory changes that the Trump administration has made in order to enact policy without legislative input, and the new DHS policy is no different.
President Trump's attacks on the safety net continue, and all the better for him if he can disenfranchise multiple marginalized populations in one fell swoop. Today the Department of Homeland Security (DHS) finalized its “public charge” rule, which targets both welfare recipients and immigrants. The rule will both limit immigration and discourage current immigrants—even those who shouldn't have anything to fear from the rule—from using public-assistance programs.
Current policy allows the government to consider whether an immigrant is at risk of being “dependent” on the government when determining their eligibility for a visa or green card. Under the current “public charge” test, officials may consider the use of cash assistance, such as Temporary Assistance for Needy Families (which very few families use) or the use of long-term institutional care, when weighing an immigrant's eligibility for legal status. The Trump administration's new rule will expand this definition to factor in a plethora of much more widely used public-assistance programs, including Medicaid, the Supplemental Nutrition Assistance Program (SNAP), and public-housing programs. In short, accessing almost any part of the social safety net—or simply being deemed likely to—would become grounds for denial of permanent legal status, or of admission to, the United States.
To be sure, immigrants are already kept from receiving many government benefits. Welfare reform in 1996 instituted a five-year waiting period for almost all noncitizen permanent residents, and contrary to many GOP political ads, undocumented immigrants have never been able to receive welfare benefits.
Under the new rule, even when immigrants are eligible for programs, they may decide not to use them or disenroll for fear that the government may invoke such benefit use as grounds for denying them legal permanent residency, or for fear of the government taking their current status away. Household members of affected individuals can keep using their benefits—but they may decide to forgo them anyway due to these fears. Programs that are not included in the new definition—like free and reduced-price school lunch for children—may also face decreasing enrollment.
The policy is not retroactive and does not apply to immigrants who currently have green cards (i.e., permanent residents) and other protected groups, including refugees, asylees, and, as the regulation specifies, members of the military. But it is complex policy, and any Trump administration policy can be subject to alteration by tweet. Which is to say, the new rule is not retroactive now.
Researchers at the Manatt law and consulting firm have estimated that 22.2 million noncitizen immigrants—and about 20 million of their family members—could be affected by the rule, whether directly by the policy or through the chilling effect. That comes to 12.7 percent of the U.S. population.
Reports have already shown that immigrants (even naturalized citizens) are dropping out of benefit programs due to fears. Indeed, this started happening in 2017, when a draft executive order similar to this public charge rule was leaked to the press (perhaps intentionally). Anecdotal reports from advocacy groups (“[T]he [immigrant] applications [for SNAP] we handled plummeted to zero,” a director of a local anti-hunger nonprofit told me in 2017) have been confirmed by a recent paper from the Urban Institute, which found that one in seven immigrants reported not participating in a government benefit program due to the fear that they would risk future green-card status. The rate was one in five for low-income immigrants. It is likely that the nonparticipation rates will balloon once a rule is implemented, as the Department of Homeland Security has acknowledged.
The drop-off would be history repeating itself. After the 1996 enactment of welfare reform, which instituted the five-year federal waiting period for public benefits for legal permanent residents, benefit use sharply dropped among immigrants and refugees, even those who were not impacted by the changes and who were receiving benefits from programs then excluded from the public charge definition. The environment of confusion and fear surrounding the new policy led to this decline.
But reducing the number of beneficiaries is just the secondary goal of the new rule. Its main purpose is to limit family-based immigration.
“It is a dramatic change from current policy,” says Tanya Broder, senior staff attorney at the National Immigration Law Center (NILC). Most of those affected by the rule are already here, living with their families and trying to gain legal status through their family members. The Trump administration has sanctioned separating families at the border, but the new public charge rule could yield another form of family separation. “We will have new rules that will reduce the ability for families to stay together,” Broder says. Judged too poor to take care of themselves, immigrants would be denied legal residency or the opportunity to immigrate to the U.S.—rulings that in many instances could break or keep families apart.
The rule will have dire consequences for immigrants in poverty, who are disproportionately people of color. By keeping immigrants (who are typically already here lawfully) from becoming permanent residents andby keeping them from using public-assistance programs, expect the country’s already wide racial disparities, across health, income, and housing, to intensify.
As newly expanded, the rule exemplifies core right-wing beliefs about both poverty and immigrants. The central idea behind public charge—within the very name of the rule—is the idea that immigrants become charges of the public, dependent on governmental assistance. Where progressives often describe Medicaid or the Supplemental Nutrition Assistance Program as “work supports” in that they enable low-wage workers to better take care of themselves and their families in an environment that expects little of employers, conservatives view the use of such programs as proof that a person cannot take care of themselves. In recent decades, as wages have increasingly lagged the cost of living, about half of U.S.-born citizens have used these assistance programs at one point.
Homeland Security isn't the only Trump Cabinet department turning public charge into an anti-immigrant weapon. The Department of Justice recently made progress on its own, entirely unprecedented proposed rule regarding public charge, which expands on the DHS rule and would make it easier for those ruled to be a “public charge” to be deported. That rule has not been finalized and is currently in the hands of the Office of Management and Budget for review.
The Prospect has reported on numerous regulatory changes that the Trump administration has made in order to enact policy without legislative input, and the new DHS policy is no different. Congress has not always viewed such reforms enthusiastically. The Reforming American Immigration for Strong Employment (RAISE) Act of 2017, for instance, strongly limited family-based immigration, and that bill ultimately failed. So, as it did by promulgating new rules for SNAP categorical eligibility and SNAP work requirement waivers, the administration has turned to the regulatory process. The White House is remaking our welfare system with little oversight, said to be guided by public comments that are little more than a façade, a way for the administration to claim it respects public opinion. (The new public charge rule received more than 260,000 public comments, the majority in opposition.)
Pro-immigrant and anti-poverty organizations are advising the public not to overreact to the implementation of the new rule. “It's important that we're not doing the administration's job for them by making people more afraid than they have to be,” says Elizabeth Lower-Basch, director of income and work supports at the Center for Law and Social Policy. There is a 60-day window before the rule is enacted, so immigrants need not disenroll in programs immediately. Instead, says Lower-Basch, they should look to community resources, such as immigration lawyers at legal-aid groups, to answer their questions as to whether they're affected by the rule.
Moreover, the rule won't be implemented without a fight. The NILC plans to bring a lawsuit against the Trump administration, and other groups across the country have committed to do so as well. According to Lower-Basch, there's a “strong case that they've rushed this through and not taken the [public comment] requirement” seriously. The force behind the rushing was Trump senior adviser Stephen Miller. “I don't care what you need to do to finish it on time,” Miller wrote in an email to an immigration official, according to reporting by Politico, which also noted that a Trump official called Miller’s preoccupation with the rule “a singular obsession.”
Nor is Congress powerless to stop the new regulation; it can pass legislation to block the enactment of the rule. The No Federal Funds for Public Charge Act in the House would block funds to implement the rule, and the House Appropriations Committee has passed an amendment to the appropriations bill funding DHS to exclude funds for implementation of public charge. Barring some sort of appropriations deal with the current Senate, passage of such legislation would likely require the Senate to turn blue. However, if the White House turns blue in the 2020 election, a new Democratic administration could reverse the rule. (And if lawsuits are drawn out, it’s possible that the rule will not even have been implemented by then.)
State attorneys general have also spoken out against the policy; a coalition of 24 of them submitted public comments in opposition. The City of Baltimore filed suit against the State Department in late 2018 for implementing policy similar to what's detailed in the DHS rule, and other municipalities may well follow by suing DHS. After all, public benefits like SNAP don’t just help the people who receive direct benefits—these programs also stimulate state and local economies. Small grocery stores, especially those in low-income areas, rely on SNAP shoppers. Small community clinics and big hospitals rely on Medicaid and Medicare recipients. “You can’t isolate and target one small group without affecting all of us,” says Broder. “The lines blur all the time [regarding] who is the target of a particular proposal.”
I've reported on numerous changes to poverty policy under the Trump administration; all are worrying and represent an unraveling of a safety net that was already dismally small. But the potential consequences of this change are both sweeping and staggering: effectively closing off public-assistance programs to immigrants and vastly overhauling the immigration system to prioritize the wealthy.
This article has been updated.
