DOJ Asks SCOTUS to Permit Public Charge Rule

By Heather Ham-Warren | FAIR Take | January 2020

Last year, the Trump Administration finally published its highly anticipated proposed rule on public charge exclusions— reiterating the common sense notion that no immigrant should become a burden to the United States. In October, three federal judges blocked the administration’s efforts by issuing nationwide injunctions prohibiting the rule’s implementation. Although two of the injunctions were ultimately lifted on appeal, the U.S. Court of Appeals for the 2nd Circuit decided to reiterate the injunction, thus keeping it in place. On Monday, in response to the appellate courts’ mixed decisions, Solicitor General Noel Francisco urged the Supreme Court of the United States (SCOTUS) to lift the lower court’ injunctions while the appeals process continues.  

Public charge exclusions are nothing new. In fact, the first references to public charges appear in Massachusetts colonial statutes. Additionally, the very first comprehensive federal immigration law—enacted on August 3, 1882— included a bar against the admission of “any person unable to take care of himself or herself without becoming a public charge.” For over a century, admissibility determinations were based on the alien’s prospective ability to earn a living in the United States.

In 1996, during sweeping reforms to both welfare and immigration policies, Congress reiterated the clear objective that aliens should be self-sufficient and not dependent on taxpayer assistance. Indeed, Congress felt so strongly about this principle of self-sufficiency that it even called it “a compelling government interest to enact new rules for eligibility and sponsorship agreements in order to assure that aliens be self-reliant in accordance with national immigration policy.”

A few short years later, the Clinton Administration eviscerated the original congressional intent and administratively redefined public charge in very narrow terms. In subverting the legislative branch, this 1999 guidance allowed both legal and illegal aliens to obtain eligibility for most types of welfare benefits— a burden American taxpayers still shoulder to this day.

Finally, nearly ten years later, the administrative branch is once again redefining what it means to be a public charge. This time, however, the rule merely restores the definition and implementation of the public charge exclusions by conforming it to the underlying federal statute and rule of law.

Please stay tuned to FAIR as we monitor these cases and the Court’s response to the government’s request.