Lifting Hold on Public Charge Rule Evokes Antebellum Slave Codes

January 28, 2020

Shawn Fremstad

In a 5-4 decision yesterday, the Supreme Court temporarily lifted a nationwide preliminary injunction that had kept the Trump administration from implementing its rule that vastly expands the reach of the public charge provision in federal immigration law. Immigration officials will now be able to deny lawful permanent resident status (“green cards”) to immigrant spouses and otherwise eligible immigrant family members of US citizens based on their prediction that the immigrant will “become a public charge at any time in the future.” The rule also allows immigration officials to permit entry to someone found likely to become a public charge if the person provides a “public charge bond” of $8,100 or more.

Immigration historians have written extensively about how the archaic provision Trump is relying on had antecedents in state laws regulating Atlantic immigration in the 1800s. But little, if anything, has been said in the media about how Trump’s rule is also rooted in a different set of state laws, specifically, state slave codes and other antebellum-era laws designed to preserve slavery and limit the movement of freed slaves. Slaveowners had a right under the common law to free their slaves. But slave states typically put conditions on the authority of slaveowners to liberate their slaves. Eleven states had laws that conditioned manumission on the slaveowner posting a bond to ensure that the slave would not become a public charge.

From the early 1800s until the end of the Civil War, it took a special act of the legislature for an owner to free a slave in Georgia, Mississippi, and South Carolina. Alabama required similar legislative approval until 1834. In these states, the legislature expressly conditioned each individual grant of manumission on the slaveowner providing a bond, and the freed slave not becoming a public charge. For an example, see this act passed by the Alabama Legislature in 1824 that “emancipated the mulatto girl Margaret, a slave of James Johnson” while requiring Johnson to “enter into bond with security in the penal sum of $1,000” and “Conditioned, that the said girl Margaret shall not become a public charge.” [italics in original].

In other states, manumission was conditioned on the freed slave leaving the state within 90 days or some other period of time. Part of the official justification was to ensure freed slaves did not become a public charge. Tennessee required owners to post bonds to ensure that the freed slave would leave the state immediately, while in North Carolina, a bond was required to ensure the freed slave left in 90 days. The border state of Kentucky also required slave owners to post bonds, but the state’s Supreme Court ruled that the slave had to be freed even if the slaveowner failed to comply.

In non-slave states, public-charge concerns were used to justify bonding requirements designed to prevent freed slaves from relocating in Northern states. Freed blacks entering Ohio were required to provide a bond, ensuring that they did not “become chargeable.” Although legal historian Paul Finkelman has noted that “there is little evidence that [non-slave states] enforced these kinds of laws.”

In short, there are striking parallels between early federal immigration law and state slave codes. (For more on these parallels, see the work of legal scholars like Gerard Neuman and immigration scholars like Anna Law). For most of the latter half of the 20th century and up until the Trump administration, the federal government interpreted the public charge provision in ways that minimized the parallels and limited the odious, discriminatory use and abuse of the provision. The Trump administration, by contrast, has leaned into the parallels.

Even if the courts eventually strike down the Trump rule, It’s time to ensure that no future president can weaponize it for punishing and discrimination. It’s time for Congress to do what it did with the Chinese Exclusion Act in 1943, repeal it for good.

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