February 14, 2017
According to Vox and the Washington Post, the Trump Administration is considering an Executive Order that would have a profound impact on the current system of lawful, family-based immigration. To understand what’s at stake, it’s helpful to first know some of the legal and historical background. Under current law, immigrants seeking a visa to become lawful permanent residents on family-based and certain other grounds can have their applications denied if they are found “likely to become a public charge.” In very rare cases, green card holders living in the United States may be deported if they become public charges during their first five years in the United States.
Who is a public charge? The term is an archaic one. It pre-dates federal immigration law and was typically used in the 1800s to refer to someone (regardless of their citizenship or immigration status) who was a “charge” of the state. In short, someone the government had taken charge of — typically in an almshouse — in a sense roughly akin to being a ward under the control and care of the government.
The power to deny entry to immigrants who were deemed likely to become public charges was first added to federal immigration law in 1882, a few months before the adoption of the Chinese Exclusion Act. As immigration historian Hidetaka Hirota documents in a timely new book, the origins of federal immigration law denying entry on public-charge grounds were in cultural and class prejudice, particularly against Irish immigrants.
Federal immigration law does not define public charge. However, federal agencies and courts have a long history of defining it as someone is likely to be institutionalized for long-term care, or to become primarily reliant on public cash assistance for subsistence.
The draft executive order would radically redefine “public charge” to include likely receipt of any “public benefit for which eligibility or amount is determined in any way on the basis of income, resources, or financial need.” Thus, someone could be denied a green card if an immigration officer concludes they are “likely” to participate in a long list of public programs that are targeted on the financial resources in any way, including Medicaid, SNAP, Head Start, child care assistance, school nutrition programs, Pell Grants, and arguably even benefits provided through the tax system that are means-tested in some way, like the EITC and the Premium Tax Credit.
In short, the draft order would redefine public charge in pretty much the same way as Rep. Paul Ryan defined “takers” in 2010, a group that, for him, included about 60 percent of Americans.
Proponents of restrictive immigration policy claim this radical expansion of the grounds for denying visas to otherwise eligible applicants — and deporting lawful permanent residents — is required by the plain meaning of the term public charge. Harvard economist George Borjas, for example, says the Trump Administration is simply putting forward a “common-sense definition of a public charge that we carry in our heads….”
Given the archaic nature of the term, it’s strange to suggest that more than a handful of people today carry a common-sense meaning of it around in their heads. But even if most people do, it seems unlikely that they would define it so expansively, for the same reasons that so many Americans rejected Ryan’s claim that most Americans are takers rather than makers.
Using longitudinal data, Mark Rank and Thomas Hirschl estimate that about half of American children will receive SNAP benefits at some point in their life. SNAP has a relatively strict means-test (net income must be below 100 percent of poverty) compared to certain other means-tested programs. Eligibility for the refundable Premium Tax Credit, for example, phases out at 400 percent of the poverty line. Would it be common sense to describe them all as public charges?
While cloaked in rhetoric about “protecting American taxpayers,” the likely real agenda here is drastically reducing the number of immigrants admitted on family-based grounds, and increasing the number admitted on “skills-based” ones. As Michael Fix and Randy Capps of the Migration Policy Institute argue, this is an agenda properly reserved for Congress, rather than determined through executive order.
