Can Biden Minimize the Cruelty of the Public Charge Rule?


When President Joe Biden took office, he immediately began using executive actions to unravel the worst of the Trump administration’s bureaucratic rulings. One of Biden’s first targets was the “public charge” rule, a policy of denying permanent residency or citizenship to people who are likely to rely on the state to meet their basic needs. But over the years, its enforcement has been variable and often limited.

Trump’s Department of Homeland Security shifted the rule from just considering cash benefits, which at the time only 3 percent of noncitizens used, to also looking at Medicaid, SNAP (food stamps), housing aid, and other programs. The formula for how accessing this help might affect a green card application was complicated, but the chilling effect was not. From the day the proposed changes were announced, immigrant families abandoned badly needed nutrition, health care, and other government programs.

Within a month of taking office, President Biden had rolled back the Trump regulation, but 14 Republican state attorneys general soon launched a suit claiming that Biden was sidestepping the rules around making new federal regulations. The Supreme Court is currently deciding whether those states’ attorneys have standing. The Biden administration isn’t assuming victory—wise, given the makeup of the Supreme Court—but the White House can render it largely irrelevant by publishing its own regulation to supersede the Trump one.

The wheels of federal bureaucracy move slowly, but last month the Department of Homeland Security released a “notice of proposed rulemaking” and call for comment by April 25 on a new policy regulating the adjudication of the public charge statute. If this is enacted, it will reshape the degree to which immigrants will be able—and, perhaps more importantly from a public health perspective, will feel able—to access public benefits. Some outside experts, however, remain concerned about the people who may continue to be excluded.

In North America, the public charge doctrine first became codified in the 1882 Immigration Act, which banned anyone “unable to take care of himself or herself without becoming a public charge” from entering the country, a principle reaffirmed by subsequent immigration laws in the 20th century. The current statute, from the 1952 Immigration and Nationality Act, says that a prospective immigrant who, “in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible.” In 1996, as part of Clinton-era “welfare reform,” Congress and the president required more stringent enforcement of the public charge rule. The government would take into account age, disability, family size, education, and other related criteria, though the 1999 guidance barred immigration officials from considering food aid (SNAP) and health insurance programs like Medicaid and CHIP.


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