Choosing Between Healthcare and a Green Card: the Cost of Public Charge

• Citation: Vol. 70 No. 1
• Publication year: 2020

Choosing Between Healthcare and a Green Card: The Cost of Public Charge

Shanzeh Daudi

CHOOSING BETWEEN HEALTHCARE AND A GREEN CARD: THE COST OF PUBLIC CHARGE

Abstract

Public charge policy has been part of the nation's infrastructure since its colonial beginnings. The policy originated as a barrier to protect taxpayers from individuals who posed a risk of becoming a charge on society, relying on public aid and governmental support. Congress last addressed the public charge statute in 1952 in the Immigration and Nationality Act, and it has been further developed at the will of the executive branch alongside the growth of immigration law and the welfare state. The Department of Homeland Security (DHS) proposed a rule change to the public charge policy to be implemented in October 2019, but the proposed rule change was temporarily halted by federal courts days before it went into effect, partially because it threatened public health and posed an extreme financial burden to healthcare centers. On January 27, 2020, the Supreme Court stayed the lower court's injunction in response to an emergency petition by the administration, effectively voiding the ban in forty-nine states and allowing the 2019 public charge policy to take effect while the issue is litigated in lower courts. The rule went into effect on February 24, 2020, a mere month prior to the onslaught of the COVID-19 outbreak in the United States. On July 29, 2020, DHS was enjoined from implementing the 2019 public charge policy for the duration of the national health emergency in response to the pandemic.

Public charge policy has fallen to the discretion of the executive branch in recent decades, and the last major policy guidance was issued in 1999. Congress did not overrule the executive agency in 1999, in a way signaling acceptance of the policy trend at the turn of the millennium; however, the 2019 rule change executed by DHS derails the agency's prior interpretation significantly. Public charge policy has historically been used by the federal government to discriminate, and it continues to be used as a political tool to exclude racial and ethnic minorities from accessing public health benefits. In burdening these minorities, the government in turn burdens the healthcare system. Without congressional action, the fate of public charge is decidedly unclear and the confusion and fear for noncitizens fueled by the 2019 rule will not abate. This Comment proposes that Congress revise the public charge statute to address concerns raised by the 2019 rule, at minimum ensuring that access to legally entitled health benefits are excluded from public charge consideration.

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Introduction.............................................................................................203

I. Background of Public Charge Policy......................................205

A. Roots of Public Charge Policy in Immigration Law................. 206
B. Inadmissibility Versus Deportation in Public Charge.............. 208
C. Battling Bias in Public Charge in the Twentieth Century ........ 210
D. National Expansion of Public Benefits Versus Public Charge . 213

1. Development of Federal Welfare Support.......................... 214
2. The Two Paths of State Welfare Support ............................ 216
3. Development of Public Charge Following PRWORA ........ 217
4. Federal Enactment of EMTALA ......................................... 218

II. The 2019 Public Charge Policy...................................................219

A. Expansion of Inadmissibility Under Public Charge in 2019 .... 220
B. Growing Public Health Concerns from Growing Public Charge Policy ........................................................................... 222
C. Damaging Effects of the 2019 Proposal and Upcoming Implementation ......................................................................... 225

III. The Political and Financial Strings Attached to Public Charge Policy................................................................................227

A. Political Weaponization of Public Charge ............................... 227
B. Public Charge is Changing, but at What Cost ......................... 233

IV. Necessary Congressional Action..............................................239

A. Long Overdue Public Charge Review ...................................... 239
B. Revisiting and Revising the Public Charge Statute .................. 242

Conclusion.................................................................................................247

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Introduction

The Statue of Liberty stands in welcome on the shores of the United States and declares, "[g]ive me your tired, your poor, [y]our huddled masses yearning to breathe free,"¹ as a promise from the United States to honor and support immigrants in their endeavors. The ebb and flow of immigration along with the skyrocketing cost of healthcare combine to create significant controversy. As a result, immigration, health care, and the economy are the crux of American politics² and are prominent items on the agenda for the Trump Administration.³ At the intersection of these three platforms is public charge policy: a practice which determines admission of noncitizens into the United States based on the noncitizen's likelihood of dependence on the federal government's public services.⁴ From the first mention of public charge in our earliest immigration laws to the welfare reform legislation passed in the late twentieth century, public charge policy consistently centered around a dual commitment to enabling entry to noncitizens contributing to the economy and "a commitment to assist members of the community who fall on hard times."⁵ In 2018, the Department of Homeland Security (DHS) reflected the Trump Administration's political interests, following leaks that DHS planned to change the public charge rule, by substantially expanding the application of public charge inadmissibility⁶ and departing from the dual commitment they had balanced for over a century.⁷ The 2019 changes include consideration of a noncitizen's previous use of public benefits that were excluded from the policy at the time, such as the subsidization of health care, and recognition of five distinct "heavily weighed" negative factors for the inadmissibility test, that will affect hundreds of thousands of immigrants in the country.⁸

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A mere four days before the new public charge rule was to take effect, three district courts halted the rule nationwide.⁹ The district courts granted motions to stay the effective date of the proposed rule.¹⁰ While the temporary delay of the proposed change was celebrated by healthcare institutions and immigration advocates, the fight drags on both in court and in the daily life of many immigrants concerned about their uncertain status.¹¹ on January 27, 2020, the supreme court granted a stay in response to an emergency petition by the Trump Administration, lifting the nationwide injunction and allowing the 2019 public charge policy to take effect while legal challenges continue in lower courts.¹² DHS implemented the 2019 final public charge policy nationwide on February 24, 2020,¹³ a mere month prior to the onslaught of the COVID-19 outbreak in the United States.¹⁴ On July 29, 2020, DHS was enjoined from implementing the 2019 public charge policy for the duration of the national health emergency

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in response to the pandemic.¹⁵ Although the new policy is temporarily halted, the public charge statute has gone unaddressed by Congress for decades, and the most marginalized in society are falling through the gap.

This Comment argues that public charge policy has systematically been weaponized to intimidate noncitizens by taking a policy intended to protect American citizens and instead using it as a cover to further political bias and discourage immigrants from accessing public benefits to which they are legally entitled. This weaponization will inevitably increase the burden on taxpayers and businesses, namely healthcare centers, to support noncitizens further down the line. This Comment assembles data provided by healthcare institutions in the underlying litigation over the public charge policy. It also calls upon Congress to address the inconsistency between the 1996 welfare reform and the 2019 public charge policy regarding public health programs, revisit the public charge statute, and consider a limited, yet significant revision of the legislation to exclude government-funded health benefits from public charge inadmissibility consideration. Although the administrative law issues of the 2019 public charge rule are being litigated, this Comment focuses on the systemic problem of conflating public charge policy with access to healthcare, urging Congress to rethink this connection between immigration and the provision of healthcare entirely. Part I uncovers the background of public charge policy, including the legislative history and legal context of its evolution. Part II addresses the feared implications of the 2019 rule as a prime example of the misuse of the public charge policy. Part III argues that the development of public charge has been weaponized as a political tool of the federal administration at the expense of taxpayers and healthcare systems. Part IV prescribes specific congressional action to revise the public charge statute to exclude consideration of legally entitled health benefits.

I. Background of Public Charge Policy

The public charge policy of today reflects centuries of evolving immigration law, political bias, and the rise and fall of the welfare state. Upon close analysis of the overall development of public charge policy from the early colonial period through the late twentieth century, the danger of an unrevised statute becomes undeniably clear. with unrelenting anti-immigrant propaganda and political fears of an ever-growing welfare agenda, current public charge policy has been warped...