The Problem with Public Charge.

• Author: Daval, Joseph

INTRODUCTION

When a noncitizen applies for a green card, or seeks to enter the United States, they must show that they are not "likely at any time to become a public charge." (2) This, the public charge exclusion, aims to stop noncitizens from entering and remaining in the country if they are likely to require some unspecified degree of public assistance. (3) It has remained virtually unchanged since the first general federal immigration statute was enacted in 1882. (4) In every immigration statute since, Congress has kept the "public charge" language in place with little indication of how that language ought to be understood by courts, officials, and the public. (5)

But while the language of the exclusion has remained the same for over a century, the country's commitments to those within its borders have changed. The United States transitioned from a welfare system of state-funded poor-houses and private charitable organizations to one characterized by federal grants of public benefits. (6) Since the 1930s, Congress has endeavored to improve public welfare by empowering agencies to administer benefits to eligible people. (7) By the end of the twentieth century, different agencies administered Medicaid and Medicare, (8) Social Security, (9) and the Food Stamp Program. (10)

For decades, no federal restrictions denied eligibility for benefits programs on the basis of citizenship. (11) But beginning in the 1970s, a noncitizen's eligibility for benefits became largely dependent on their immigration status. (12) Federal immigration law divides noncitizens into three categories: lawful permanent residents (LPRs), (13) who have been granted green cards and intend to live in the United States permanently; temporary residents, (14) such as students or business travelers; and undocumented people. (15) The scope of benefits available to each group has changed over time as Congress has adjusted eligibility requirements. (16)

The public charge determination--whether someone is "likely at any time to become a public charge" and therefore excludable--applies when a noncitizen is (1) applying for a visa to come to the United States; (17) (2) seeking physical admission to the United States; (18) or (3) seeking a green card through adjustment of status (AOS), the process by which temporary legal residents and some undocumented people already residing in the United States can apply for LPR status. (19) Despite already living in the United States when they apply, AOS applicants must demonstrate that they do not trigger any grounds of inadmissibility at the time of their adjustment of status, thereby becoming subject to the public charge ground once again. Thus, in practice, the public charge determination affects three groups of people: (1) people abroad applying for immigrant visas from U.S. consulates; (2) some LPRs returning from a trip outside the United States; (20) and (3) temporary residents and undocumented people applying for AOS, unless specifically exempted. (21)

Enforcement of the public charge exclusion today falls to two agencies. Consular officers in the Department of State (DOS), stationed abroad at U.S. embassies, apply the determination to prospective immigrants. (22) Immigration officers within the Department of Homeland Security (DHS) make the determination both at the border when admitting noncitizens and when adjudicating AOS applications. (23) Benefits-granting agencies (24) have no role in immigration enforcement and therefore take no part in the determination. Conversely, DOS and DHS, the immigration agencies enforcing the exclusion, (25) take no role in determining eligibility for benefits.

In making the determination, agency officers are instructed to consider the "totality of [the] circumstances" to decide whether a person is likely to become a public charge in the future. (26) As part of the totality-of-the-circumstances test, officers look at the noncitizen's history of receiving public benefits. (27) They are also statutorily required to consider, at a minimum, "age; health; family status; assets, resources, and financial status; and education and skills." (28) Consular officers making the determination have near-complete discretion over the decision, (29) and there is no appeals process for a denial. (30) Similarly, it is very difficult to appeal a denial of AOS by an immigration officer. (31) Crucially, the officer does not consider benefits use to determine whether a person has become a public charge. Rather, the officer looks at past receipt of benefits, among other factors, to determine whether a noncitizen will later become a public charge. The question of which public benefits will factor into the public charge determination thus becomes centrally relevant for noncitizens seeking AOS or admission to the United States. (32)

In 2018, the Trump Administration DHS proposed a rule contemplating a drastic expansion of the grounds for public charge exclusion. (33) It proposed that officers making the public charge determination consider past receipt of Medicaid, Supplemental Nutrition Assistance Program benefits, and subsidized housing, among other previously ignored benefits. (34) The rule threatened to chill access to benefits for millions of people, causing immense harm. (35) Notably, few noncitizens were likely to be excluded on the basis of their benefits receipt under the rule, because most of those subject to the public charge determination lack access to most of the relevant benefits. (36) After the requisite notice-and-comment period, the rule was finalized in August 2019. (37) Litigation ensued; federal courts enjoined implementation of the rule, (38) those injunctions were lifted, (39) and the rule is currently in partial effect. (40)

President-elect Joe Biden has promised to "[r]everse Trump's public charge rule." (41) But the Trump rule did not come to occupy an empty space. It replaced a field-guidance document (42) published in 1999 by the INS, DHS's predecessor, (43) which governed the administration of the exclusion until the Trump rule took effect in February 2020. (44) Issued over a century after the exclusion was first enacted, the 1999 guidance provided the first comprehensive account of what "public charge" means, how to apply it, and which benefits would "count" against a noncitizen or instead be ignored by immigration officers. Previously, no uniform federal policy identified which public benefits would and would not "count" in the public charge determination. The guidance stated that while "cash" benefits would count against a noncitizen, "non-cash," or "supplemental," benefits like Medicaid, food stamps, and subsidized housing would not. (45)

Despite a robust literature on the public charge exclusion, little attention has been paid to its administrative history--especially the 1999 guidance. Recent work has highlighted the exclusion's discriminatory application, (46) criticized the Trump rule's inconsistency with historical practice, (47) and identified its devastating effects on public health. (48) But there is a less-known parallel story: how the regulatory state has attempted to reconcile public charge with evolving legal commitments to provide for those in need. (49)

In this Note, I argue that the public charge exclusion has always stood in tension with another government aim--to provide for those, including newcomers, in need of assistance. This tension has contributed to a public charge enforcement regime characterized by overreach and inconsistency, largely unguided by any coherent doctrine. The development of contemporary benefits programs has placed the regulatory priorities of exclusion and assistance in direct competition. As a result, any public charge determination that considers benefits receipt necessarily impedes the public-welfare aims of benefits regimes, by deterring noncitizens from receiving benefits for which they are lawfully eligible.

A reversal of the Trump rule should mean, at the very least, a return to the compromise of the 1999 guidance. But there is a better option short of congressional action: a rule that prohibits the consideration of all benefits receipt in the inadmissibility determination, carving public benefits out of the totality-of-the-circumstances test. Such a rule would be wise policy and consistent with immigration law.

Part I charts the limited and fraught efforts of Congress, courts, and agencies to define "public charge" in relation to evolving commitments to public welfare. I identify the one instance in which Congress considered a distinction that might guide the public charge determination, and contend that this distinction and its related regulations house the most coherent "doctrine" public charge has.

In Part II, I map the causes and development of the 1999 guidance using archival documents from the National Archives and Records Administration (NARA) website. (50) I analyze the interagency negotiations preceding the guidance, including how the Clinton Administration used Congress's distinction between cash and supplemental benefits to broker a compromise between sets of agencies with competing regulatory priorities.

In Part III, I theorize what I call "zero-sum asymmetry"--the interagency relationship characterizing the modern administration of public charge. In doing so, I build on and complicate existing theories of interagency relationships and conflict. I proceed by suggesting, as the Department of Health and Human Services (HHS) did in the guidance negotiations, that a rule prohibiting the consideration of all lawful benefits would be permissible and prudent. I conclude by observing that public charge may be fundamentally incompatible with firmer and more recent commitments to those in need.

1. THE HISTORICAL INTERPRETATION AND APPLICATION OF PUBLIC CHARGE

   In this Part, I consider public charge's interpretation and application from 1882 to the 1990s. Public charge's history reveals a provision in...