Donald Trump’s efforts to shake up U.S. immigration policy are just beginning. As Dara Lind of Vox reports, leaked draft executive orders reveal that the Trump administration is considering new measures that would dramatically change the rules governing which immigrants are allowed to settle in the country, and all without passing any new federal legislation.
Before we turn to the details of Trump’s draft executive orders which, to be clear, are only drafts at this point, let’s zoom out to consider a more abstract question. Should America serve as a haven for the world’s most desperate people who will undoubtedly need a helping hand once they arrive in their new country? Or should we welcome newcomers in the expectation that they’ll be able to earn enough to support themselves and their families without public assistance? As it stands, U.S. immigration law tries to do a bit of both. Different rules apply to refugee immigrants—who are fleeing persecution of various kinds—and nonrefugee immigrants, who come to America by choice and not because their only alternatives are death or some other hellish torment. For simplicity’s sake, let’s refer to these two groups as refugees and immigrants.
Refugees aren’t expected to prove they won’t become dependent on public assistance for the simple reason that they are assumed to be in need. The flipside is that the federal government makes a concerted effort to ensure that refugees face genuine threats. Those seeking to settle in America as immigrants are held to a different standard. Although immigrants are not subject to anywhere near the same level of vetting as refugees, they do have to pass the “public charge” test.
According to a long-standing federal policy, potential immigrants will be barred from the United States if they are likely to become dependent on public assistance. If an immigrant does become a “public charge” within five years of arriving in the country for reasons that can’t be attributed to, say, a disability she developed after settling in the U.S., she can be deported. The idea is that immigrants choose to settle in America, and U.S. taxpayers can reasonably expect that such voluntary entrants can provide for themselves.
The effects of this policy hinge on the definition of a public charge. What the term means in practice is almost entirely up to the executive branch. Back in 1999, the Clinton administration put in place guidelines that defined a public charge very narrowly as someone who is “primarily dependent on the government for subsistence, as demonstrated by either: (i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense.” Are you dependent on public assistance if, say, you receive Medicaid, SNAP benefits, or public housing? Not according to the Clinton guidelines, which put those social service programs in a different category than cash assistance—a standard that remained intact under Presidents George W. Bush and Barack Obama. In practice, relatively few aspiring immigrants are turned away on the grounds that they might become a public charge, and almost no one has been deported on that basis in years.
Why did the Clinton guidelines define public charges so narrowly? Since 1965, a large majority of immigrants have been admitted to the U.S. on the grounds that they are related to a U.S. citizen. When you impose a stringent public charge definition, then, you’re not just keeping immigrants out of the country: You are potentially infuriating their U.S. citizen relatives. Over the course of his presidency, Bill Clinton shifted from a more restrictionist stance to an expansionist one. This was partly because the late 1990s economic boom put the country in a more generous mood. But it also reflected a political calculation. President Clinton and his allies sensed that naturalized citizens, and especially low-income naturalized citizens, might be turned into a reliable Democratic voting bloc, which could help make up for the party’s losses among working-class whites. They weren’t wrong. President George W. Bush hoped to win back immigrant voters from the Democrats, which is why he took a similarly permissive approach. And President Obama was, if anything, even more mindful of the importance of immigrant voters than his predecessors.
Not surprisingly, President Trump seems inclined to take a drastically different approach. According to the draft executive orders, the Trump administration is looking to revise the public charge standard to take into account all means-tested benefits, including Medicaid and SNAP, both of which are currently used by millions of immigrant-headed households. The new Trump guidelines would bar large numbers of immigrants who would have been admitted under the Clinton guidelines. Excluding immigrants with limited earning potential would inevitably frustrate the U.S. citizens hoping to sponsor them. But unlike Obama and Bush, Trump is deeply unpopular among immigrant voters, and he’s shown little interest in winning them over. He does enjoy substantial support among working-class whites, who tend to be more restrictionist than the public at large. By defining public charges more broadly than Clinton, he’d deliver a major victory to his base.
But that’s not all these executive orders would accomplish. There’s another idea in the drafts that could antagonize immigrant voters even more, and that has its roots in the intra-Republican immigration battles of the 1990s.
In the 1996 welfare reform legislation, Congress included a number of provisions aimed at curbing immigrant use of public assistance. Though widely condemned as draconian at the time, these provisions were in fact a successful attempt on the part of pro-immigration Republicans—led by libertarians and Christian conservatives—to head off efforts by the GOP’s restrictionist wing to reduce immigration levels.
The centerpiece of this “immigration yes, welfare no” agenda was a five-year ban on means-tested benefits for new legal immigrants. In addition, lawful permanent residents sponsored by a family member were required not just to report their own income, but to report the income of their sponsors as well. It was the combined income of immigrants and their sponsors that would determine the immigrants’ eligibility for means-tested programs, a concept known as “sponsor deeming.” To further deter immigrants from making use of public assistance, government agencies were authorized to seek repayment from sponsors for benefits paid to sponsored immigrants, a concept known as “sponsor recovery.” Nevertheless, in the years that followed, limits on means-tested benefits were softened while sponsor recovery was hardly ever tried, not least out of fear of political blowback. “Immigration yes, welfare no” was a wildly successful slogan but it hasn’t amounted to much in practice.
If the draft executive orders are to be believed, the Trump administration intends to take sponsor recovery seriously. What would happen if U.S. citizens were required to reimburse government agencies for the means-tested benefits used by the immigrants they’ve sponsored? In theory, it would mean that Americans would take sponsorship a lot more seriously than they do now. The more immediate result is that millions of first-generation Americans would suddenly be responsible for their siblings’ Medicaid bills. It’s not hard to imagine those first-generation Americans becoming very, very angry with Donald Trump and the Republican Party.
Will Trump actually follow through? Politically speaking, we’re in uncharted territory. With the possible exception of Ted Cruz, my guess is that none of the other Republican presidential candidates who ran in 2016 would have even considered pursuing such a far-reaching immigration agenda. They’d be too afraid of provoking immigrant voters and for good reason. It’s certainly possible that Trump’s base will love his immigration efforts more than pro-immigration voters will hate them, but I wouldn’t count on it.
The president would be wise to tread lightly. First of all, he’d do well to keep in mind the distinction between refugees and immigrants, and the draft executive orders are not encouraging on that front. There’s a decent case that immigrants hoping to reunite with their families or earn more money in America should fend for themselves. But that case will be greatly undermined if Trump fails to show more compassion to refugees than he’s shown to-date. To win a political fight over immigration, he needs to deprive his opponents of sympathetic plaintiffs.
And then there is the all-important matter of setting expectations. It’s one thing to set a higher bar for immigration going forward. It’s quite another to threaten to deport low-income immigrants who are already in the country. The same goes for sponsor recovery. If you tell Americans they will be on the hook for means-tested benefits accessed by the immigrants they sponsor in the future, they’ll get the message that they should think harder about their sponsees’ earning potential. Present them with a bill for reimbursement they never dreamed they’d receive, and you just might have a revolt on your hands.