On August 14, the Department of Homeland Security (DHS) published its final public charge rule. This policy would allow the U.S. government to deny permanent residency and visas to people who rely on or who are “likely to rely on” public benefits for food, housing and medical assistance. The Trump administration’s intent is to substantially reduce the number of people who are eligible for permanent residency and visas by drastically broadening the definition of what makes a person dependent on the government — or what makes them a “public charge.”
Some trace the public charge rule back to the late 19th and early 20th century anti-Chinese and other immigration laws. However, the first “public charge” laws emerged some 300 years earlier. Seventeenth century public charge laws established criteria for enslaved Black people to be denied or granted manumission, or freedom granted by one’s owner. Dozens of antebellum public charge laws required enslaved people to prove that if freed, they would “never become a public charge” or that they would “not be likely to become chargeable.”
The U.S. has a long history of targeting negatively racialized people based on contrived notions of disability, “delinquency” and “dependency.” U.S. public charge policies are yet another cruel embodiment of the country’s racist, ableist and classist history and present that must be told. These laws disproportionately harm people who already face compounded oppression, and many of these people are fleeing economic, political or environmental turmoil caused by the U.S. government.
A Racist, Ableist, Classist Attack
There are chilling similarities between Trump’s public charge rule and dozens of public charge laws that restricted freedom, and forced migration and family separation of thousands of Black enslaved and formerly enslaved people who were trafficked into, around and out of British colonies. Myths of “American exceptionalism” and claims that the United States is a “nation of immigrants” (ignoring Black enslaved people and Native people) erase the inextricable connections between U.S. past and present. Enslavement and its associated and continuing sins are the manifestation of a uniquely American anti-Black, ableist, capitalist venture. This grotesque enterprise liquidated humans — assigning valuations that reduced human beings down to their ability to produce, excel and comport themselves in ways that were deemed normatively acceptable by those in positions of power.
Following the publication of the proposed public charge rule in October 2018, immigration, disability, and racial and economic rights advocacy groups rallied during a two-month public comment period to garner hundreds of thousands of public comments objecting to the rule. Nevertheless, the final rule was published with minimal amendment. In its final rule, DHS catalogued hundreds of concerns raised by commenters often to expressly concede that the rule would have a disproportionately discriminatory and damaging effect on at least disabled people, women, domestic violence survivors, LGBTQ communities, elderly people, children, families, negatively racialized people, and low- and no-income people, among other “vulnerable populations.” One paragraph stated, for example:
… this rule is likely to result in negative consequences for some [people who depend on public benefits to meet their needs] … negative consequences are … an inevitable consequence of more rigorous application of a statutory ground of inadmissibility that is targeted towards people who receive public benefits to meet their basic needs…. DHS declines to modify the scope of the rule to accommodate all possible Federal and State policies supporting public benefits use by specific vulnerable populations.
On August 14, 13 states filed a federal lawsuit against the DHS, and another federal suit followed on August 16, filed by advocacy organizations that focus on racial, economic and health equity in service of migrant, children and farmworker communities. The organizations argued that the regulation was “motivated by racial bias against nonwhite immigrants” in violation of the Fifth Amendment’s Equal Protection Clause, and that the regulation is an “unlawful and unconstitutional attack … that threatens the life and health of families that are disproportionately [negatively racialized].” The rule is also in direct conflict with long-standing federal disability rights laws which prohibit disability-based discrimination in any program or activity of a federal executive branch agency.
Acting DHS Director Ken Cuccinelli, aware of the tragedies that will stem following the effectuation of this rule, regaled reporters with a particularly common revisionist version of the founding of this nation: “Throughout our history, self-sufficiency has been a core tenet of the American dream. Self-reliance, industriousness, and perseverance laid the foundation of our nation and have defined generations of hardworking immigrants seeking opportunity in the United States ever since.” Cuccinelli punctuated this take with a note about the history of the public charge rule stating, in part, “For over a century, the public charge ground of inadmissibility has been part of our nation’s immigration laws … we will promote these long-standing ideals and immigrant success.” Cuccinelli, like many, refuses to confront the disturbing truth about the blood-stained “founding” and macabre maintenance of this nation.
Public Charge Rules’ Roots in Slavery and Colonialism
U.S. “immigration” policy was not established to attend to a moral obligation to welcome diverse people to this land to pursue the “American Dream.” Quite the opposite: U.S. immigration policy is part of a protracted sociopolitical project steeped in settler-colonialism that has long sought to expand and protect the white population’s settlement and dominance. The Naturalization Act of 1790, the first federal law dealing with “naturalization” and national citizenship, held that the only “alien” who could apply for naturalization is a “free white person … of good character” who has occupied this stolen land for at least two years. It would take another 80 years for Congress to extend naturalization laws to “aliens of African nativity and descent” and 134 years for all Native Americans to be granted citizenship. Immigration laws that ostensibly prioritized family-based immigration, for example, have done so to “reassure lawmakers who feared the law’s other changes would dilute the distinctly European nature of immigration to the United States” and to “guarantee the continued dominance of European immigration.”
Majority Northern and Western Europeans secured immense wealth through genocide and generational commodification of millions of Black people through the maintenance of forced work camps (i.e., “plantations”). These institutions were sustained not through “self-reliance,” “industriousness” or “perseverance” of settler-colonialists, but through their systemic campaign of theft, trickery, trafficking and terror. Civil War and Reconstruction Professor David W. Blight points out, “… by 1860, there were more millionaires (slaveholders all) living in the lower Mississippi Valley than anywhere else in the United States. In the same year, the nearly 4 million American [enslaved people] were worth some $3.5 billion, making them the largest single financial asset in the entire U.S. economy, worth more than all manufacturing and railroads combined …”
Settler-colonialists who violently helped themselves to millions of acres of land and Black enslaved people’s bodies and labor are not [im]migrants; and people indigenous to the Americas and those kidnapped from the African continent also did not “immigrate” to the U.S. “Immigration” exists because white European settler-colonialists committed genocide, forcibly removed millions of Indigenous people, created borders, and drafted policies to legitimize, formalize and legalize this violent appropriation. These truths are central to understanding the origin of the public charge, but, more importantly, to understanding “citizenship,” “immigration,” and the “United States” as fabricated by white people for white economic, social and political gain.
Black people were kidnapped from Africa, trafficked into, around and out of American colonies and states, and shamelessly and ruthlessly owned by white Europeans as “chattel” (i.e., “personal property”) — sold with animals, furniture and other inanimate objects — for nearly 250 years. Black humans were wholly commodified, branded, beaten, bred, experimented upon and killed. Enslavers had no consideration of their humanity. Black enslaved people’s entire worth was tied up in their economic value to the person who “owned” them and to the colonial, state and global economic system of the day.
However, Black people resisted enslavement in myriad ways. In addition to organizing uprisings, engaging in work stoppages and slowdowns, and coordinating escapes, many attempted to obtain their freedom through legislative manumission, which included “self-purchase” as well as enslavers or their heirs unilaterally “abandoning title to their property.” The legal right to manumit enslaved people could be denied or restricted only through legislative action, and up until the abolition of slavery, colonies and states methodically restricted manumission by banning it outright, increasing requirements necessary to prove that they would not become a public charge, mandating public charge bonds and increasing required bond amounts, making additional demands on manumitted people (such as forcing manumitted people to leave the county, state or country), and developing other laws to control access to and use of manumission laws.
“Poor laws” held taxpayers responsible for supporting “needy” people in the free population, while property laws held enslavers responsible for paying for basic necessities for the people they enslaved. Many enslavers took advantage of these laws to exploit Black bodies and labor for an entire lifetime or up until the point of disablement, then to abandon title to their “property” once these Black people could no longer make profit for the enslaver. These Black people were considered disposable — no longer “worth their [up]keep.” The modern public charge rule was born out of antebellum American public charge laws that strictly limited the population and movement of Black people. These laws restricted white enslavers’ ability to manumit healthy and “self-sufficient” Black people, and elderly, sick or disabled Black people. Public charge laws also applied to Black people who sought to “self-purchase” their or their loved ones’ freedom. States required the enslaver or the enslaved to pay public charge bonds to “ensure that the freed person would not become a public charge” and to cover costs of transportation and removal of manumitted people. For instance, New Jersey, Pennsylvania and Delaware had laws that required security against public charge on account that “free Negroes are an idle, slothful people, and prove very often a charge to the place where they are.” States including North Carolina, Mississippi, Alabama limited emancipation to cases where meritorious service was cited, while Virginia made meritorious service the sole ground for manumission. Connecticut’s 1777 public charge law required that an enslaved person seeking manumission had to be “able to support himself and be of a good and peaceable Life and Conversation,” while South Carolina’s 1800 public charge law allowed five “impartial freeholders” (inevitably white men who unconditionally owned real estate and Black enslaved people) to “decide that the slave was of good character and able to support himself.” Later on, in 1846, new Jersey required that the “Negro be of sound mind and capable of earning a livelihood.”
Public charge bonds paid by the enslaver or the enslaved served as security in situations where government officials determined that, if freed, a Black person was “likely to become a public charge.” Many states also required immediate or exigent departure of manumitted people from the colony, state or country — forcing people to choose between freedom and family, or compelling forcibly manumitted people to separate from their loved ones. Enslavers and the state leveraged these and other laws against “industrious” and “self-reliant” Black people who hustled to earn money, because to pay for one family member’s freedom meant that family separation would likely result and earning enough money to purchase one person — much less multiple people — while enslaved was staggeringly difficult and required many years. Failure to leave within the specified time frame could lead to the revocation of manumission and return to enslavement. Enslavers who applied to manumit a healthy person within a specified age range (ages varied by state), who was determined to be able to support herself, could be provided a certificate exempting the enslaver from liability should the formerly enslaved person become chargeable. A similar certificate could be issued if the enslaved person was sought to be manumitted for “meritorious service” with a discretionary possibility of waiver of the deportation requirement of the law. Extensions of time or exemptions to deportation/removal were possible for “Negroes of “extraordinary good conduct and character,” “slaves freed for merit” and “well-behaved Negroes.” These laws were regularly tinkered with and used as population, movement and behavior control mechanisms (e.g., promises of manumission were made to compel more vigorous work and discourage rebellion). These laws would have had the effect of forcing Black people to deny disabilities and forgo necessary supports just to obtain liberation.
Will Migrants Be Forced to Forfeit Basic Necessities?
Since their inception, public charge mechanisms have been steeped in a distinct class of intersected racism, ableism and classism of the cruelest magnitude. Like Cuccinelli, government officials, regardless of the century, have advanced the idea that public charge policies are designed to help, protect, care for, or ensure the success of negatively racialized people. While these sound like admirable goals, public charge policies provide cover for other failed policies and practices that have been unjustly borne by those being labeled “public charges.” Those officials never reveal their complicity in producing the public charge (the actual cost to taxpayer) and the “public charge” (the actual human who is labeled a public charge).
Consider the Black enslaved elder, for example. The elder, their ancestors, children and grandchildren may all have endured backbreaking forced labor and other violence for hundreds of years between them. Now that the elder can no longer “keep pace,” the enslaver seeks to “write the elder off.” The state will classify the elder as a “public charge,” denigrating his “slothfulness” and criticizing his “pauper” status. But since the elder’s birth, property law created by these officials and their ancestors has branded the elder as not human, just property; and slave codes held that as property, the elder could possess nothing and make no contract. Thus, all of the elder’s time, work, production, life and family are possessed by the enslaver and his relatives and heirs. The enslaver’s brother sits on the legislative committee drafting public charge laws. The elder’s story, when narrated by white people, is decontextualized and used as evidence of racist-ableist ideas about Black people, poor people, elderly people and disabled people.
The similarities between antebellum public charge laws and this administration’s public charge rule and immigration policies are stark. Among other things, the current public charge rule modifies definitions and adds to the list of programs that can be considered to determine if a migrant will be considered a public charge. Under the previous definition, “likely to become a public charge” applied to those who were likely to become “primarily dependent” on a list of four designated state and federal programs for more than half of their income or support: Supplemental Security Income; Temporary Assistance to Needy Families; state general relief or general assistance; and Medicaid benefits that cover institutionalization for long-term care. Under the current final rule, the bar for being classified as a “public charge” would be considerably lowered in large part because the Trump administration added five additional programs that are essential for health, nutrition or housing needs: non-emergency Medicaid; Supplemental Nutrition and Assistance Program; Section 8 Housing Choice Voucher Program; Section 8 Project-Based Rental Assistance; and Public Housing. Recipients of support from any of these programs are now eligible to be considered a “public charge.”
After markedly expanding the list of programs that can be considered by U.S. Citizenship and Immigration Services (USCIS) officers, the rule also changes the definition of public charge to “an alien who receives one or more public benefits for more than 12 months in the aggregate within any 36-month period” (where the receipt of two benefits in one month counts as two months). USCIS officers would also apply the public charge “totality of the circumstances” test to evaluate an applicant’s age, health, assets, education and financial status — with English-speaking ability being used as evaluation criteria. The regulation allows the posting of a public charge bond where an applicant needs to assure USCIS that they will not become a public charge, with the minimum possible bond amount being $8,100. In brief, new public charge rule determinations would hinge on past, current and future potential use of public benefits — all of which would be determined by factors that, on their face, are at least ableist, classist and racist. The consequences of this rule will be dire. Communities that already experience compounded oppression will be forced to choose between having access to necessary health, nutrition, housing and economic support or having an opportunity for a desirable outcome on immigration residency or status applications.
Public charge legislation of the 1600-1800s kept Black people locked out of freedom and into enslavement, while this administration’s public charge rule uses the same mechanisms — and even the same language — to keep migrants locked out of security and into scarcity. At their heart, public charge strictures are a cruel reaffirmation of a seemingly everlasting violent insistence that is emblematic of the United States: Power and capital always trump humanity.
The U.S. Must Confront Its Past
The erasure of the origin story of the public charge rule despite hundreds of years of explicitly targeting Black/Indigenous, disabled, low-income and other marginalized communities is part of a long tradition of Americans refusing to look at the violent contradictions that hold this country together. This refusal is why so many people who are invited to sit with these contradictions instead claim that those who reveal these truths are trying to tear this country apart.
Immigration policy seeks to maintain an exploitable labor pool without running the risk of working-class, negatively racialized, disabled or incarcerated people gaining enough power to successfully challenge the status quo. The goal is to artfully obscure the true adversaries (authoritarianism, capitalism, imperialism, all forms of oppression) by enacting policies or engaging in practices that quell dissent and sow discord within and across communities. U.S. immigration policy legitimates dangerous eugenicist ideas about the inferiority of immigration exclusion-targeted groups and the superiority the drafters of these edicts and their ilk. Importantly, immigration policies inform legal and extrajudicial violence by white supremacists who claim to engage in violence “in service to the State/race,” compounding the discrimination and violence faced and the terror felt by those targeted by immigration policy.
The reincarnations and longevity of U.S. public charge regimes and the near-complete exclusion of their overtly anti-Black, ableist, classist configurations are disconcerting and instructive. They exemplify how buried histories will continue to haunt and wreak havoc on our present and future. They demonstrate the nimble, timeless and comprehensive nature of structural and systemic oppressions. Finally, they serve as proof that power holders appreciate how identities intersect, making intentionally intersectional responses to state violence all the more necessary.
In this era of authoritarianism, there are concessions we simply cannot make. Demonization of any group that is intentionally made politically, socially or economically marginalized fans eugenics flames, stokes genocidal tendencies and emboldens white supremacists. Therefore, advocacy that supports migrants because migrants “pay taxes,” are “important to the economy,” “do not have criminal records,” “work, long hours for low wages in jobs that Americans won’t accept,” etc. only serve to reify the systems that we should be seeking to dismantle. People everywhere must ardently contest messaging that ties people’s value to their labor productivity or that establishes categories of inferiority and superiority of marginalized people. Migrant justice work must be intentionally rooted in anti-ableist, anti-racist, anti-capitalist and anti-imperialist frameworks.
The U.S. is implicated in the deprivation of security (housing, income, climate and more) to people around the globe — especially Indigenous peoples and descendants of the Americas and African continent, those in or around the sites of U.S. wars and conflicts, and those from the global South and U.S. “territories.” Migration and the provision of public benefits should be supported because migrants are human and deserving of freedom of movement, residence and security. Further, the United States’s colonial-imperial capitalist legacy divests it of moral and legal authority to deny entry to humans seeking security — especially Indigenous people. There is more than enough wealth in this nation to ensure that everyone is cared for. Impoverishment is a political choice.
In the face of a swiftly advancing global neo-Nazi resurgence, it is unwise and unsafe to cling to aspirational symbols of equality and hollow untruths. This nation must confront its past, which, in too many ways mirrors our present. To erase parts of American history that are difficult to confront is to acquiesce to white supremacy and invite its flood of injustice and terror to endlessly recur. Demands for migrant justice must uplift the inherent value of all people and be grounded in historical truths that center Black/Indigenous peoples’ experiences. Anything less increases opportunities for eugenics, plays into the boorish hands of a demonstrably authoritarian administration, and will result in yet more deaths.
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