The U.S. Supreme Court’s conservative majority will allow the Trump Administration to move forward with a wealth test that would deny green cards to immigrants who the government believes might make use of public benefits, such as food stamps and Section 8 housing.
The high court’s 5-4 decision is temporary (and doesn’t apply to the state of Illinois) as litigation over the “public charge” rule continues in many courts across the country. Justice Neil Gorsuch, who was nominated by President Donald Trump, wrote the opinion granting the government’s request to stay a nationwide injunction out of New York, but he didn’t weigh in on the merits of the case.
He did, however, take the opportunity to complain about the judicial patchwork of rulings out of trial courts around the nation, and noted that none really mattered much “at this point.”
“Today the Court (rightly) grants a stay, allowing the government to pursue (for now) its policy everywhere save Illinois. But, in light of all that’s come before, it would be delusional to think that one stay today suffices to remedy the problem,” Gorsuch wrote. “The real problem here is the increasingly common practice of trial courts ordering relief that transcends the cases before them. Whether framed as injunctions of ‘nationwide,’ ‘universal,’ or ‘cosmic’ scope, these orders share the same basic flaw – they direct how the defendant must act toward persons who are not parties to the case.”
The public charge rule was set to go into effect Oct. 15, 2019, before five trial judges entered injunctions blocking it. “Public charge” is a term that refers to immigrants who the government believes will rely on public assistance. The new rule expands the definition of who would be considered a public charge so that the Department of Homeland Security (DHS) can “ensure applicants [for lawful admission to the country] are self-sufficient,” according to the 837-page document.
It changes “green card” criteria to allow harsh scrutiny of an immigrant’s financial resources when deciding whether to allow them to obtain legal status in the U.S. One of the factors that will be considered (and make it more difficult for legal immigrants to obtain permanent resident status) is whether they use or are likely to use public benefits, like non-emergency Medicaid, SNAP food assistance or Section 8 housing.
The new rule will consider a number of factors, including age, health, family status, education, and skills in determining whether a green card applicant is more likely than not to become a public charge at any time in the future.
“Nearly every sector of society has gone on record in opposition to this morally repugnant and legally dubious regulation, and for good reason: its implementation will hurt countless of immigrant and citizen families, and we’re all worse off as a result,” said Marielena Hincapié, Executive Director of the National Immigration Law Center. “This move by the Supreme Court is deeply disheartening and harmful for our low-income communities of color and our democracy. But it only strengthens our resolve to continue to fight — both in the courtroom and along with our communities — for a future in which every family can thrive.”
Attorneys, advocates and experts have emphasized that the new rule will only apply to a small group of immigrants, and does not affect children of immigrants who are using public benefits.
There are three specific benefits the new public charge rule applies to: non-emergency Medicaid, the Supplemental Nutrition Assistance Program (SNAP) and public housing. Under old guidance, and also included in the new rule, the government will also scrutinize the use of Supplemental Security Income (SSI) and Temporary Assistance for Needy Families (TANF). The rule does not apply to U.S. citizen children, pregnant women and children who use Medicaid or humanitarian categories of immigrants, including asylees, refugees, victims of trafficking and others.
“There should be virtually nobody dropping out of benefits because of this rule,” said Kate Woomer-Deters, senior attorney for the Immigration and Refugee Rights Project at the North Carolina Justice Center (the parent organization of NC Policy Watch).
She said programs that are not considered negatively by DHS are critical ones that individuals should continue using, like the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC), the Affordable Care Act, FEMA aid, free school lunches and emergency Medicaid.
Undocumented immigrants are not eligible for any of the benefits included in the rule, so they already do not use them. The rule also does not apply to green card holders because they’ve already passed the public charge test. The rule also will not be retroactive, so anyone who used those benefits before October of this year will not be penalized.
Numerous organizations are working to keep immigrant communities educated about the new public charge rule to prevent individuals from dropping out of needed programs preemptively.
“The regulation itself directly affects only a small number of people, but the Trump administration is counting on fear to amplify the harm,” said Olivia Golden, Executive Director of the Center for Law and Social Policy. “The administration disregarded the law, the facts, and the voice of the American people to advance a brutal attack on millions of children and their families. Don’t let them win — fight fear with facts and make the best decision to protect your family. This regulation has already fueled fears that could cost millions their food, medical care, and homes.”
Those same organizations are also reminding everyone that the fight isn’t over – they’ve vowed to fight as far as they can in the courts. There are a number of resources about the public charge rule and who it applies to. Both the NC Justice Center and the National Immigration Law Center have entire web pages devoted to the subject.
Justice Clarence Thomas concurred with Gorsuch’s written opinion, which reads more like a case against nationwide injunctions altogether than an opinion about the veracity of the public charge rule in question.
“This is not normal,” he wrote. “Universal injunctions have little basis in traditional equitable practice. Their use has proliferated only in very recent years. And they hardly seem an innovation we should rush to embrace. By their nature, universal injunctions tend to force judges into making rushed, high-stakes, low-information decisions.”
Gorsuch added later that he hopes the court gets to an appropriate juncture to “take up some of the underlying equitable and constitutional questions raised by the rise of nationwide injunctions.”