On Monday, the Supreme Court’s conservative majority allowed the Trump administration’s “public charge” rule to take effect. The government may now begin to deny visas and green cards to anyone it decides may rely on public aid.
Monday’s order will force countless immigrants to forgo health care, food stamps, and housing assistance; it will drive families to illness, starvation, and homelessness; and it is impossible to square with federal law.
The 5–4 decision is both a humanitarian catastrophe and an act of rank hypocrisy: The same conservative justices who rail against executive lawmaking by federal bureaucrats approved a policy written by bureaucrats that radically alters the laws passed by Congress. The “public charge” rule furthers Trump’s effort to limit legal immigration by any means necessary. Congress has failed to pass any legislation furthering this agenda, so the Department of Homeland Security simply rewrote the law in 2018 to reduce the number of individuals who can legally enter and remain in the United States. DHS zeroed in on a federal law that denies visas and green cards (or “lawful permanent residence”) to individuals deemed likely to become a “public charge.”
Such statutes have a long, sordid history in the United States: They were first passed in the late 19th century as part of a xenophobic backlash against immigrants from countries whose residents were deemed non-white or incapable of assimilation, including Ireland, Italy, and China. The current statute directs the government to consider five factors when determining whether an immigrant will become a public charge: age, health, family status, financial status (including assets and resources), and education and skills. Immigrants deemed a public charge are denied visas or lawful permanent residence.
In crafting this law, Congress rejected any bright line rule that would prevent immigrants from getting or keeping legal status because they might need some government benefit. Interpreting the statute, the government directed consular officers to ask whether an immigrant would become “primarily dependent” on cash benefits like welfare, or undergo long-term hospitalization. But officers could not focus on any one “particular factor,” instead examining the “totality of the circumstances.”
The Trump administration’s new rule changes all that. It dramatically broadens the categories of suspect assistance to include food stamps, housing vouchers, and Medicaid. An immigrant who uses cash or non-cash benefits in any 12 months of a 36-month period will be deemed a public charge. Using two kinds of benefits in one month counts as two months of use. So an immigrant who relies upon Medicaid and food stamps for half a year will automatically be deemed a public charge.
Because these guidelines are utterly unmoored from the actual law, three different courts blocked the new rule. On Monday, the Supreme Court lifted a nationwide injunction, allowing the rule to take effect in every state except Illinois, where a different court kept it on ice. The majority did not even hint at its reasoning for lifting the injunction. All four liberals dissented.
SCOTUS’s ruling will devastate immigrant communities in the United States who rely upon even modest public benefits to survive. Many immigrants currently hold temporary visas and wish to become lawful permanent residents in the future. They may unenroll from Medicaid, abandon food stamps, and lose their homes to preserve their ability to gain green cards. Attorneys fighting the rule estimate that “hundreds of thousands” of people will be affected. These individuals, including children, will suffer malnutrition, poverty, homelessness, and preventable disease. Moreover, immigrants who are denied a green card may lose their legal status altogether, forcing them to leave the country or risk deportation. The rule will also exclude a large number of immigrants seeking entry from abroad, who face the daunting task of proving total self-sufficiency, not just now but indefinitely.
This extraordinary burden might be legally tolerable if Congress had demanded it. But Congress did no such thing. Instead, the Senate refused to implement a version of the new rule as recently as 2013. But Trump’s Department of Homeland Security would not let a little thing like congressional inaction stand in the way of its nativist goals. So the agency converted Congress’ limited definition of a public charge into a sweeping category that will subject as many as 94 percent of legal immigrants to extra scrutiny.
The Supreme Court’s conservatives have warned against this kind of lawmaking by executive fiat. Justice Neil Gorsuch has railed against “the administrative state,” castigating the delegation of legislative power to federal agencies. Chief Justice John Roberts, as well as Justices Clarence Thomas, Samuel Alito, and Brett Kavanaugh, have all endorsed Gorsuch’s crusade against agencies’ efforts to rewrite or expand the law beyond Congress’ intent. These justices rail against “the flight of power from the legislative to the executive branch.” And they claim to vigorously oppose any judicial deference to federal bureaucrats’ interpretation of the laws passed by Congress.
Except when those bureaucrats are appointed by Donald Trump. The court’s conservatives have repeatedly intervened to let Trump bypass the law and executive immigration policies that are plainly unauthorized by federal law. They have also blessed the Trump administration’s strategy of short-circuiting the appeals process to get relief from the Supreme Court. That’s precisely what happened here: The Justice Department leapfrogged over the court of appeals to get their case before the justices. Gorsuch even attached an acerbic concurrence to the order, joined by Thomas, scolding lower court judges for blocking Trump’s policies nationwide. The message from the conservative bloc is clear: Trump gets to crack down on immigration to his satisfaction, and any lower court that stands in his way will incur SCOTUS’s wrath.