It is no controversy why objectivity in law is so critical: with so much at stake for constituents, clarity and precision in what governs the lives of the public is paramount. However, in a field as large and complex as enforcing the law, some ambiguity is inevitable. It is interpreting this ambiguity that often bears the most significant ramifications to those, especially the most marginalized, living under the law. A prominent example of this phenomenon lies in over a century of redefining the term “public charge” under law. First introduced under the Immigration Act of 1882, “public charges” were vaguely described as immigrants who were likely to become dependent on government support and were thus allowed to be excluded from moving to the United States. It wasn’t until 1999 that the Immigration and Naturalization Service (INS), the precursor of today’s Department of Homeland Security, formally defined them as those who were “primarily dependent on the Government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at Government expense.” [1] Since then, the definition has continued to morph, expand and shrink, leaving immigrants caught in a chaotic game of adaptation or deportation at the hands of the president and Department of Homeland Security, culminating into the pivotal court case of New York v. Department of Homeland Security.
In 2019, the Trump administration's Department of Homeland Security expanded the definition of public charge to include users of non-cash benefits and essential services like Medicaid, SNAP, and housing assistance, deeming that millions more “may [be] denied application for lawful permanent residence or their entry into the U.S.” [2] This controversial change formed the basis of New York v. DHS, when numerous nonprofit organizations and states, including the state of New York, challenged the expanded definition as violating the Administrative Procedure Act, a 1946 key U.S. federal law governing the procedures and practices of federal agencies such as the Department of Homeland Security. A key feature of the APA was this mandate: when adding or changing its rules and definitions, federal agencies must publish a Notice of Proposed Rulemaking (NPRM) in the Federal Register and allow a public comment period, usually at least 30 days, for the public to submit feedback and voice concerns [3]. New York argued that the public was not given the opportunity to provide input and feedback before these changes were made, a principle so paramount because the public would likely not have responded well to the new rule. According to the Center on Budget and Policy Priorities, more than half of all U.S.-born citizens could have been deemed a public charge under this change [4]. It would also disproportionately affect low-income and minority migrants from Africa, Latin America, and South America that rely on government services. Thus, under this change, immigrants, particularly black and brown, would be penalized for accessing essential services and were incentivized to avoid them.
How such an easy change to what was once legal jargon gave way to such grave consequences for the lives of immigrants speaks to how powerful mere interpretation of law can be. Those affected, of course, have no say in the matter– with only the word of the president, the lives of millions can be completely changed forever. It is for this reason that the US judicial system exists: to check the power of a potentially overbearing executive or legislature. But even still, as demonstrated by New York vs. DHS’s final ruling, the judiciary’s limited scope often deems it impossible to truly represent the interests of all when subordinate to an ever-growing executive power.
Recognizing the DHS’s oversight in not adhering to the rules of the APA, the Southern District of New York granted New York a preliminary order that prohibited the new “public charge” rule’s implementation first in the state, then on a national level. The U.S. Court of Appeals for the Second Circuit upheld the preliminary order but, as to not overstep its authority and impose too broad of a change, narrowed its scope to cover only the states of New York, Connecticut, and Vermont. Therefore, the case’s final ruling deemed that president Trump’s “public charge” definition could be applicable in 47 states– re-affirming the notion that the judiciary cannot always serve as an effective check on policies or defend the interests of the most vulnerable Americans.
In 2022, however, the broad “public charge” definition ruled by president Trump and affirmed by the courts was overturned by the Biden administration, redefining the term to once again only include those using cash assistance for income maintenance or institutionalization for long-term care. “This action ensures fair and humane treatment of legal immigrants and their U.S. citizen family members,” said Secretary of Homeland Security Alejandro N. Mayorkas. “Consistent with America’s bedrock values, we will not penalize individuals for choosing to access the health benefits and other supplemental government services available to them.” [7]
The Biden administration’s ruling succeeded in its attempt to restore confidence among immigrants, allowing them to access essential resources without fear of penalization, but once again set a precedent for the scope of executive power in immigration policy. For decades the term “public charge” has been so malleable that it could be changed essentially on a whim by presidential administrations, despite how crucial the term can be to the lives of millions of immigrants. In New York v. DHS, the Second Circuit Court’s judicial restraint left the judiciary branch subordinate to the executive. When such important matters of interpretation can thus be largely determined by the administration of one leader, especially one unaffected by or inconsiderate of their ramifications, interpreting the law becomes a dangerous game. Is the United State’s separation of powers tipping in favor of the executive branch?
Now that president Trump is set to return to office in 2025, it’s hard to say what the future of the “public charge” definition, immigration law, and the power of the executive branch will look like. Since his last presidency, the US has welcomed roughly 2.8 million migrants, even seeing the “biggest yearly surge in immigrant population for twenty years” in 2023 [8]. Political and social instability in regions like the Carribean, Central America, and South America will likely continue to drive this influx in people, particularly black and brown, seeking shelter and government services in the US in the coming years. As we enter this new era, it is vital that we consider the interests of what the judiciary often cannot– the most vulnerable Americans: the poor, the marginalized, and the newly settled. To combat the ever-growing reshaping of the Constitution’s balance of power, we must elect representatives that aim to serve the whole of their constituents and uphold the principles of checks and balances, holding our heads of state accountable and forever preserving democracy.
[1] Boundless. “Public Charge Rule Explained.” n.d.
[2] Kaiser Family Foundation (KFF). “Public Charge Policies for Immigrants: Implications for Health Coverage.” n.d.
[3] Federal Communications Commission (FCC). “The FCC Rulemaking Process.” n.d.
[4] Center on Budget and Policy Priorities (CBPP). “Trump Administration’s Overbroad Public Charge Definition Could Deny Essential Services.” n.d.
[5] Food Research & Action Center (FRAC). “New USDA Report Provides Picture of Who Participates in SNAP.” n.d.
[6] Oyez. “Case Summary: 20-449.” n.d.
[7] Department of Homeland Security (DHS). “DHS Publishes Fair and Humane Public Charge Rule.” 2022.
[8] Newsweek. “U.S. Sees Biggest Yearly Surge in Immigrant Population in 20 Years.” 2023.
Works Cited
"Department of Homeland Security v. New York." Oyez, www.oyez.org/cases/2021/20-449.
Accessed 2 Dec. 2024.
Admin, Wp. “What Was the Public Charge Rule for Immigrants?” Boundless, 21 Nov. 2023, www.boundless.com/blog/public-charge-rule-explained/.
“Changes to ‘Public Charge’ Inadmissibility Rule: Implications for Health and Health Coverage.” KFF, 13 Aug. 2019, www.kff.org/racial-equity-and-health-policy/fact-sheet/public-charge-policies-for-immigrants-implications-for-health-coverage/.
“DHS Publishes Fair and Humane Public Charge Rule: Homeland Security.” U.S. Department of Homeland Security, 8 Sept. 2022, www.dhs.gov/news/2022/09/08/dhs-publishes-fair-and-humane-public-charge-rule.
Hartline-Grafton, Heather. “New USDA Report Provides Picture of Who Participates in Snap.” Food Research & Action Center, 25 Jan. 2023, frac.org/blog/new-usda-report-provides-picture-of-who-participates-in-snap#:~:text=In%20addition%2C%20about%2092%20percent,Native%20American%3A%20about%202%20percent.
Rahman, Billal. “U.S. Sees Biggest Yearly Surge in Immigrant Population for 20 Years.” Newsweek, Newsweek, 1 Oct. 2024, www.newsweek.com/us-sees-biggest-yearly-surge-immigrant-population-20-years-1961371.
“Rulemaking Process.” Federal Communications Commission, www.fcc.gov/about-fcc/rulemaking-process#:~:text=The%20APA%20notice%2Dand%2Dcomment,logical%20outgrowth%20of%20the%20proposal. Accessed 2 Dec. 2024.
Trisi, Danilo. “Trump Administration’s Overbroad Public Charge Definition ...” Center on Budget and Policy Priorities, 30 May 2019, www.cbpp.org/research/poverty-and-inequality/trump-administrations-overbroad-public-charge-definition-could-deny.
