November 01, 2020
November 1, 2020
Comments of Shawn Fremstad, Senior Fellow, Center for Economic and Policy Research, Washington, DC. Submitted on Regulations.gov on November 1, 2020
My comments focus solely on the failure of the Department of Homeland Security and the Office of Management and Budget to complete a Family Policymaking Assessment of the proposed rule, as required by federal law, and how the proposed rule would undermine family relationships, including marriage, domestic partnerships, and parent-child relationships. Given the fundamental importance of these relationships, DHS should withdraw its proposed rule.
Under section 654 of the Treasury General Appropriations Act, 1999, Public Law 105–277, DHS must assess whether this proposed rule:
- “strengthens or erodes the stability or safety of the family and, particularly, the marital commitment”;
- “strengthens or erodes the authority and rights of parents in the education, nurture, and supervision of their children”;
- “helps the family perform its functions, or substitutes governmental authority for the function”;
- “increases or decreases disposable income or poverty of families and children”;
- has “proposed benefits [that] justify the financial impact on the family”;
- “may be carried out by state or local government or by the family”;
- “establishes an implicit or explicit policy concerning the relationship between the behavior and personal responsibility or youth, and the norms of society.”
In Section IV. I. (Family Assessment) of the proposed rule, DHS claims that:
DHS has reviewed this proposed rule in line with the requirements of section 654 of the Treasury General Appropriations Act, 1999, Public Law 105–277. With respect to the criteria specified in section 654(c)(1), DHS has determined that the proposed rule may decrease disposable income and increase the poverty of certain families and children, including U.S. citizen children. For the reasons stated elsewhere in this preamble, however, DHS has determined that the benefits of the action justify the financial impact on the family. Further, the proposed action modifies the sponsorship requirement of demonstration of means to maintain income. As a result, the proposed regulatory action, if finalized, may increase the number of aliens found inadmissible under section 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4).
Based on this, it appears that DHS has considered only one of the six factors that it is required to consider under the Family Assessment requirement. Specifically, it has considered whether the rule will have a financial impact on families, but has failed to consider or acknowledge the rule’s non-financial impacts on families.
Of particular relevance to this proposed rule, DHS has ignored its statutory duty to assess the first three factors of the Family Assessment requirement, specifically whether its proposed rule:
- “strengthens or erodes the stability or safety of the family and, particularly, the marital commitment”;
- “strengthens or erodes the authority and rights of parents in the education, nurture, and supervision of their children”;
- “helps the family perform its functions, or substitutes governmental authority for the function”;
Alternatively, DHS has assessed these factors, but withheld the results of the assessment for political reasons.
Regardless, DHS must assess all of these factors and disclose its conclusions for each of the factors, something that it has utterly failed to do.
An objective assessment of these these factors would conclude that the proposed rule: 1) erodes the stability of the family and, particularly, the marital commitment; 2) erodes the authority and rights of parents in the education, nurture, and supervision of their children; and 3) impedes the family in the performance of its function.
The proposed rule will erode family stability, the marital commitment, the authority and rights of parents—and impede the family in the performance of its function—by increasing the number of U.S.-citizens who are barred by U.S. law from living with their spouses.
Similarly, the proposed rule will erode family stability, the marital commitment, and the authority and rights of parents—and impede the family in the performance of its function—by increasing the number of U.S.-citizen children who are legally barred by U.S. law from living with one or both of their parents.
Of course, this administration’s single-minded commitment to reducing lawful immigration to the United States—regardless of the cost to U.S. citizens who are married to, or children of, people who are not U.S. citizens—will mean that it gives no meaningful weight to how the rule will erode family stability, the marital commitment, and the authority and rights of parents. Still, federal law requires that the administration assess and acknowledge the harm this proposed rule will do to the marriages, families, and childhoods of millions of U.S. citizens.
The family rights and relationships at stake in this rulemaking action have been recognized in both statutory and constitutional law. Most recently, in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), the Supreme Court acknowledged the dignity inherent in choosing a life partner and in making autonomous decisions about family life. In this and other constitutional family law cases, the opportunity for co-residence, mutual care and companionship, and the nurturing of children, have supported recognition of a constitutional interest in family relationships and living arrangements. In a different context (regulation of housing occupancy), the Supreme Court held that the government should not regulate “by slicing deeply into the family itself.” Moore v. City of East Cleveland, 431 U.S. 494 (1977).
If family is generally “a keystone of our social order,” Obergefell at 2601, it is especially so for immigrants, who often rely on family for their integration into American society. Moreover, the possibility of long-term or even permanent separation poses a very real threat to family life, particularly in times of hardship and adversity. According to the Supreme Court, the co-residence of parents and children not only facilitates Americans’ exercise of their “rights of childrearing, procreation, and education,” but also “safeguards children and families” who are especially vulnerable. Id. at 2590.
By contrast, DHS has failed to give any weight to family rights and relationships in this rulemaking action. If it did, it could only conclude that its long-standing regulation strikes a reasonable balance between the government’s interests and the interests and rights of U.S. citizens to live with their spouses, children, and other family members.
