Senate Passes Resolution to Overturn Biden’s Public Charge Rule

FAIR Take | May 2023

Last week, the Senate passed S.J. Res. 18, a joint resolution introduced by Senator Roger Marshall (R-Kan.) that would overturn the Biden Administration’s Final Rule on Public Charge.  FAIR endorses this resolution and worked to encourage Senators to support it.

Public charge restrictions for immigrants have been part of U.S. immigration policy for more than a century, and self-sufficiency has been a basic principle of United States immigration law since this country’s earliest immigration statutes.  Under President Trump, the Department of Homeland Security (DHS) issued a rule that would have required immigrants seeking to enter the United States or adjust to permanent status to be self-sufficient.  The Trump rule clearly established what benefits would be considered in decisions and laid out the level of dependency at which an individual was deemed likely to be a public charge, and thus inadmissible.  Unfortunately, however, the Trump Administration’s rule was challenged in the courts and vacated.

After failing to defend the Trump public charge rule, the Biden Administration published its own regulation.  It defines public charge as one that is likely “to become primarily dependent on the government for subsistence.”  It only allows officers to consider cash benefits and long-term institutionalization rather than taking into consideration other public benefits, such as Medicaid, Supplemental Nutrition Assistance Program (SNAP), and various housing vouchers.  As written, the Biden public charge rule undermines the intent of the law. 

FAIR strongly believes that DHS should strengthen – not weaken – public charge requirements by limiting welfare programs used by immigrants, considering the receipt of public benefits by an alien’s dependents, and placing additional weight on factors such as skills, education, and financial resources that are proven to be reliable indicators of an alien’s likelihood of becoming a public charge.

But our immigration system today is broken, and the Biden Administration has found ways to ignore or abuse our laws to create unlawful programs that help illegal immigrants to enter the country.  Many know they can take advantage of the services and benefits we provide, creating an incentive for illegal immigration.  People around the world leave their homes and migrate to places where they know they can find financial assistance and economic stability, as has been proven by sanctuary cities. 

In a statement after the resolution passed, Senator Marshall said, “As I saw in Brownsville last week, the United States of America does not have the capacity or resources to care for the thousands of migrants clamoring to be here. This is nothing new.  Our country has dealt with huge crowds of migrants at the southern border since the earliest days of the Biden Administration. But these crowds are coming because the Biden Administration keeps making promises to both legal and illegal immigrants about what they are entitled to in America.”

“The public charge rules we just struck down in the Senate represent one of those promises,” Marshall continued. “Our actions today deliver a resounding statement of truth to Joe Biden and anybody who wants to try and call our country home: we only reward the best and brightest and there is no room for freeloaders.”

The Biden Administration meanwhile has said that the President will veto the resolution, arguing that the public charge rule “is an important step towards undoing the damage that resulted from the chilling effect of the 2019 [Trump] public charge rule and provides a clear, comprehensive, and fair standard for assessing whether a noncitizen is likely to become a public charge.”

S.J. Res. 18 now moves to the House of Representatives, where Congressman Troy Nehls (R-Texas) has introduced a companion resolution.

In the coming weeks, FAIR will continue to support this effort to overturn the weak and ineffective Biden rule and encourage the Administration to instead craft a rule that protects American taxpayers and ensures the self-sufficiency of intending immigrants.