August 15, 2019
This week the Department of Homeland Security (DHS) officially published regulations that radically expand the definition of an archaic immigration law term, public charge, to include various non-cash benefits that supplement earnings and other income, but are impossible to live on in the absence of other income. The people most impacted include millions of working-class and middle-class US citizens who plan to marry or are married to foreign nationals.
Under the longstanding law and policy that existed before the new regulations, US citizens who marry foreign nationals had to show that their spouse was not likely to be institutionalized or end up wholly dependent on income-tested cash assistance (like SSI or TANF) in the future. Under the new rule, they will not be able to obtain visas, known as green cards, for their spouses if a front-line immigration official decides that their spouse is “likely at any time in the future” to receive even small amounts of Medicaid, SNAP, and certain other benefits.
The rule’s expansiveness can be demonstrated by estimating how many US-born citizens receive benefits that would make their immigrant spouse or other immigrant family a public charge. Let’s consider receipt of just one of the programs. Receiving Medicaid would suffice to make someone a public charge under this expanded definition. In 2017, 53.9 million US-born citizens, about 1-in-6 people in the United States, were enrolled in Medicaid.
Yet, very few of them have anything in common with the supposedly “undesirable” people living in almshouses and asylums that the public charge restriction originally targeted. Among all people covered by Medicaid today:
• Forty-one percent lived in households with annual incomes of more than $50,000.
• Some 41 percent, 14.2 million, had post-secondary education beyond a high school degree (among enrollees age 18 and older).
• Some 8 million worked full-time, year-round, another 7.8 million also worked, but less than full-time, year-round (among enrollees age 18 to 64).
In short, the new rule is so broad that tens of millions of US-born citizens, including perhaps most working-class, fall within the rule’s definition of public charges.
It is unimaginable that Congress would classify so many working-class and middle-class Americans as undesirable public charges. To be sure, some conservative intellectuals have provocatively characterized the United States as a “nation of takers” and most working-class America’s as “takers.” But Congress did not adopt such an expansive view when it added the public charge restriction to federal immigration law, and the Trump administration has no authority to do so now.