In November 2018, as the Trump administration ramped up plans to radically change public charge rules—which deem whether an immigrant or would-be immigrant is likely to end up a cash-burden to the state and thus be ineligible for permanent residency—the city of Baltimore sued the administration to prevent the change and protect its immigrant population. Three months later, the administration sought to get the lawsuit dismissed. It wasn’t dismissed. Instead, in March of this year, 19 states as well as 17 counties and cities, 10 national civil rights organizations and five Maryland-based immigrant-advocacy groups filed amicus briefs explaining exactly how much damage the proposed new regulations would do.
That lawsuit is still pending, and no judgement has been issued. But over the past few weeks, the urgency of the case has only grown; for what was only a possible threat when Baltimore first filed its lawsuit is now on the verge of becoming a devastating reality.
Last week, after months of public comments – 266,000 were filed, the vast majority in opposition to the new public charge rules – the Department of Homeland Security published the new regulations—all 837 pages of them—in the Federal Register. On October 15, barring court intervention, they will become the law of the land. As I wrote in The Nation magazine, by a bureaucratic sleight of hand, the rule change turns any legal immigrant who uses any public services into a potential deportation target of Immigration and Customs Enforcement and Customs and Border Protection, and it overrides decades of immigration policy set by Congress to establish the economic and racial immigration priorities of Trumpism. Of all the power grabs this extra-legal administration has embarked upon over the past three years, this is by far the most brazen and the most far-reaching in its implications.
The rule change effectively bypasses Congress, which is constitutionally charged with setting immigration policy, to rewrite more than half a century of U.S. immigration law. If it stands, come October 15, immigration officers will effectively be empowered to ignore family unification priorities in the granting or denial of visas, and to close the U.S. off to low-income would-be-immigrants; and domestic bureaucracies will be encouraged to effectively exclude millions of existing immigrants already in the country from any access to temporary nutritional, health care or housing assistance. It sets up a cascading series of public health and economic calamities that will take decades to undo.
Even before they formally kick in, the new regulations have already had a tremendous “chilling effect,” according to advocacy groups such as the National Immigration Law Center, which has documented numerous instances of panicked individuals and families dis-enrolling from vital safety net programs.
In response, a tremendous legal battle, at least as large as that surrounding the administration’s efforts to end Deferred Action for Childhood Arrivals, is now underway.
In the days following the publication of the new rules, San Francisco and the county of Santa Clara filed a joint lawsuit aimed at blocking implementation of the new public charge rules. Shortly afterwards, a large coalition of states – Washington, Virginia, Colorado, Delaware, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico and Rhode Island — filed another lawsuit against the Department of Homeland Security (DHS) and also the Citizenship and Immigration Services (CIS).
In another development, the National Immigration Law Center and a huge coalition of non-profits and immigrants-rights groups has gone to court to seek redress as well.
It is likely that at least one of these lawsuits will succeed in temporarily blocking implementation of the new public charge rules. After all, the Administrative Procedures Act, which governs the development of regulations, mandates that public comments are read carefully and taken seriously when regulations are significantly altered. In the case of the public charge rule change, they clearly weren’t. More generally, it’s evident that the rule change is a huge regulatory overreach. The new rules, the coalition of states suing DHS and CIS argue, embody a “radical overhaul of federal immigration law.” The text continues that, “It expansively redefines the term ‘public charge’ in a manner that is contrary to congressional intent and agency interpretation.”
In other words, a rule that for more than a century has been interpreted as only applying to use of cash benefits is now being turned into a catch-all designed to drive immigrant families away from any-and-all assistance programs and also to allow immigration officers to decide that a visa applicant might at some point become a burden. That’s not simply re-stating an existing rule; it’s using that rule as cover for a much broader, more pernicious anti-immigrant agenda.
Parallel to the legal battle, a political struggle is also now underway. Democrats in Congress are pushing a bill that would defund implementation of the new public charge rules. It might pass in the House, but it’s hard to see how it could secure anything like a veto-proof majority in the Republican-controlled Senate.
Either way, the battle lines have now been drawn. This isn’t about tinkering with a regulatory matrix; it’s about the future of the United States in relation to immigrants.
Trump is clearly betting that he can gin up his base in the run-up to the election through ever more extreme anti-immigrant measures. They will be coming fast and furious over the next months, particularly if the economy heads into recession, thus robbing Trump of one of his signature talking points in favor of re-election. For Trump to win in 2020, given how toxic he is to so many independents, he has to ensure not just that affluent Republican suburban voters stay with him, but also that there is extraordinarily high turnout amongst the most nativist, xenophobic part of the Republican Party’s base. Given this, we may expect to see more and more restrictions on services legal immigrants can access over the coming months. We may see more increases in immigrant incarceration and more bans on refugees. We’ll likely see the appropriation of more money for the building of more miles of border wall.
Trump is likely betting that if the courts block implementation of the rule changes, or if Congress starts flexing its muscle to rein in this power grab, he can use all of that resistance to fuel the animus of his voters and to divide-and-conquer his political opponents.
Yet progressives must not be pushed onto the defensive on this issue. Democrats in Congress must not be tempted to triangulate public charge, to “compromise” with Trump or to seek some middle-ground understanding by chipping away at immigrants’ rights in the hope of securing GOP support in the Senate. Instead, those who see the horror of the Trumpian strategy must go on the offensive on every front in this war for basic human rights. We must explain to voters exactly how discriminatory, cruel and counter-productive these policies and regulations are. We must craft an alternative, inclusive vision of the U.S. that doesn’t give an inch to the Stephen Millers, the Ken Cuccinellis and the Donald Trumps of this land; to those who would dare to rewrite Emma Lazarus’s poem that has, for more than a century, stood for the best of the American ideals.
We must call them out, again and again and again, for who and what they are: racist, nativist and Orwellian. They are people who are scared of demographic and cultural change, using all the propaganda and bureaucratic tools in the authoritarian’s trick bag to shore up their narrow, nasty vision of the world. They are bullies who feel they are big only when they beat up on vulnerable people, only when they humiliate, humble and terrify young children or mothers trying to protect their kids.
One doesn’t defeat bullies by accommodating them; one defeats them by absolutely refusing to cooperate with their foul methods.