A flurry of lawsuits have already been filed challenging the Trump administration’s new “public charge rule.” The rule, which goes into effect in October, allows immigration officials to deny green cards to immigrants because they utilize government public assistance programs like food stamps, housing vouchers, or Medicaid—or simply because they are poor.
The rule is essentially Donald Trump’s latest attempt to stick it to nonwhite immigrants from “shithole countries,” as he likes to call them.
If the term “public charge” conjures up old-timey images of sooty-faced children wearing newsboy caps, that’s because it is a legal term that dates back more than 100 years. Congress first used it in the Immigration Act of 1882, a law that barred “any person unable to take care of himself or herself without becoming a public charge” from immigrating into this country.
Public charge tests have been included in various federal laws over the past century. In 1999, the Immigration and Naturalization Service proposed a definition that would become the standard: a public charge means “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.”
But Trump has broadly expanded what it means to be a “public charge” beyond recognition.
In one of the lawsuits, State of California v. U.S. Department of Homeland Security, plaintiffs California, Oregon, Maine, Pennsylvania, and the District of Columbia argue that the public charge rule stacks the deck against children, students, people with disabilities, the elderly, and low-income working families. Plaintiffs also claim that the expansion of the law violates the Administrative Procedures Act (APA) and the due process clause of the Fifth Amendment, which the Supreme Court has interpreted to include a guarantee of equal protection.
Under the APA, an agency like the U.S. Department of Homeland Security is permitted to create and implement its own rules as long as it has a valid reason for creating and implementing a particular rule. It can’t just pull a reason out of thin air. The agency also cannot use an innocuous reason to hide a true nefarious motive.
But, according to plaintiffs, that’s exactly what the Trump administration has done here.
The Trump administration has claimed that the rationale for the public charge rule is “encouraging self-sufficiency.”
But the lawsuit argues that the rule was motivated by race- and national origin-based animus “against individuals from what President Trump has referred to as ‘shithole countries.'”
“The Rule will disproportionately impact non-White, non-European immigrants from Asia, Latin America, the Caribbean, and Africa, as well as prevent more immigrant of color from changing or becoming lawful permanent residents and, ultimately, citizens,” plaintiffs allege in the complaint.
The rule is a morass of regulations that will grievously harm immigrant communities. DHS itself admits that it could lead to worse health outcomes, especially for pregnant or breastfeeding people, infants, or children; increased use of emergency rooms and emergent care as a method of primary care; increased prevalence of communicable diseases, including among members of the U.S. citizen population who are not vaccinated; increased rates of poverty and housing instability; and reduced productivity and educational attainment. These admissions undercut the Trump’s administration claim that the new public charge rule is intended to encourage self-sufficiency.
“This cruel policy would force working parents and families across the nation to forgo basic necessities like food, housing, and health care out of fear,” California Attorney General Xavier Becerra said in a statement.
The new rule will also have a chilling effect: Immigrants who are eligible for federal health care and food and housing assistance will be more likely to forgo this assistance out of a fear that the Trump administration will deport them. And even individuals who aren’t subject to the public charge test will avoid benefits out of fear.
“With the public charge rule, defendants have expanded the law to block vast swaths of our nation’s foreign-born residents from making critical changes in their immigration status, just because they are not wealthy,” Becerra said.
The public charge designation is based on a number of factors weighted by immigration officials in various ways as negative or positive. Now, the use of public benefits, including federally funded Medicaid health-care coverage, food assistance through SNAP, and certain forms of housing assistance may count as negative factors. (Notably, immigrants pay taxes and are therefore entitled, both morally and legally, to take advantage of these public benefits.)
If a green card applicant has received any of the listed public benefits for more than 12 months within a three-year period, that constitutes a “heavily weighted” negative factor. What’s worse, if an applicant receives two benefits in one month, that counts as two months. So, for any applicant who uses two types of benefits, the 12-month period is, in reality, six months.
It gets even worse.
For the first time in history, an immigrant can be designated a public charge simply due to low wages. So even if an immigrant meets the Trump administration’s claimed goal of “self-sufficiency” because they do not claim any public assistance (to which, again, they are legally entitled), an immigration official can still designate them a public charge and deny them citizenship, all because they don’t meet an income level that DHS has pulled out of thin air.
This rule unmistakably targets Black and brown immigrants, since the poverty rates for Black and Latino people are two or three times the poverty rate for white people, depending upon the state in question. DHS even admits that the rule “may impact in greater numbers communities of color … and therefore may impact the overall composition of immigration with respect to these groups.”
The rule will also have a disproportionate effect on people with disabilities because, in addition to the already existing health criteria, it now requires immigration officials to consider whether the green card applicant “has any physical or mental condition … significant enough to interfere with the person’s ability to care for himself or herself.” If a green card applicant uses Medicaid-funded home services, for example, that will count as a negative factor. DHS concedes that the rule will have, in its own words, a “potentially outsized impact … on individuals with disabilities.”
According to the lawsuit, the Trump administration has broadened what “public charge” means to such an absurd extent that a substantial portion of U.S. citizens would be deemed public charges under the expanded definition were they subjected to the rule. As Tina Vasquez has reported for Rewire.News, the rule could affect 382,000 people a year.
None of this seems to bother the administration in its quest to demonize immigrants and make it more difficult for them to find a pathway to citizenship. It certainly doesn’t bother Ken Cuccinelli, director of the U.S. Citizenship and Immigration Services office, whose background includes trying to eliminate birthright citizenship, questioning whether Barack Obama was born in the United States, and proposing to make speaking Spanish on the job a fireable offense, according to the Atlantic. And just last week, Cuccinelli rewrote Emma Lazarus’ famed poem on the Statue of Liberty to read, “Give me your tired and your poor who can stand on their own two feet and who will not become a public charge.” Not quite as poetic as the original, “Give me your tired, your poor, your huddled masses yearning to breathe free.”
He may as well have rewritten it to say, “No broke bitches allowed.”
To a casual observer, this public charge rule is yet another display of Trump’s disdain for certain nonwhite immigrants. The DHS has straight-up admitted that the policy will disfavor members of those groups.
While that seems like a relatively damning admission and should bolster the plaintiffs’ Fifth Amendment equal protection claims, an admission of disparate impact is not enough to win an equal protection claim. Plaintiffs have to prove an intent to discriminate.
But surely Trump’s comments about nonwhite immigrants hailing from shithole countries, or his comments regarding favoring immigrants from primarily white countries like Norway, evince a specific intent to discriminate. Plaintiffs have made that argument again here. History has demonstrated, however, that the U.S. Supreme Court does not find such arguments convincing.
In 2018, the Roberts Court upheld Trump’s travel ban in Trump v. Hawaii, ruling that it did not violate the Fifth Amendment despite Trump’s many anti-Muslim comments in the lead-up to that decision. And in Department of Commerce v. New York, even though the Court rejected the Trump administration’s claim that it wanted to add a citizenship question to the Census to enforce the Voting Rights Act, Roberts still left the door open for the Trump administration to provide a better explanation—as if a better explanation would erase Trump’s relentless racist attacks regarding nonwhite immigrants.
It seems that when it comes to a specific intent to discriminate, the angry and frequently incoherent tweets and statements won’t be part of the Court’s calculus. I expect the same will be true when any of the number of public charge cases that states have filed in the last week reach the Supreme Court.