by Matina Smith
From the outset of his 2016 presidential campaign, President Donald Trump established himself as anti-immigration. On the campaign trail, he often used rhetoric that demeaned immigrants and blamed them for economic issues.[1] He has long insisted that our immigration system should be merit-based, allotting points for youth, skillset, employment, advanced education, higher wages, and job creation.[2] Additionally, he has publicly stated his distaste for immigrants from countries considered “less valuable,” such as Haiti and Africa, because they are more impoverished than wealthier nations, such as Norway.[3] His immigration policy has been consistently characterized by a desire for the United States to profit from human migration instead of offering humanitarian aid to those who are in need.[4] This has been further proven through his most recent attempt to transform the immigration system into one more focused on individual levels of wealth.
In August 2019, President Trump announced a new policy that would establish economic status as one of the most important factors in determining whether immigrants receive legal status.[5] The administration stated it would accomplish this goal through a wealth test, claiming the new policy would lessen the financial burden of American taxpayers. This strategy, according to the administration, seeks to eliminate immigration of impoverished migrants who depend on public services offered by the government, which will inevitably create a system of preferential treatment for middle- and upper-class immigrants who do not rely on such services.[6] As a result, some individuals and families will be put in extremely difficult situations of having to weigh the benefits of receiving potentially lifesaving aid or forgoing it in order to have an easier time receiving legal status. This policy will negatively affect immigrants who hail from impoverished countries, in which they likely did not already have access to these types of services. Many immigrants move to the United States for the opportunities available here, which include access to quality healthcare. Therefore, the government should not establish legal consequences that dissuade immigrants from receiving the same medical attention as natural born citizens.[6]
A provision of the Immigration and Nationality Act of 1965 prohibits admission of noncitizens who are “likely at any time to become a public charge.”[7] While this language is not new, the Department of Homeland Security recently issued a new definition of “public charge.” For the last 20 years, a public charge was defined as “a person primarily dependent on the government for subsistence.”[8] However, in August 2019, the definition changed to “an alien who receives one or more designated public benefits for more than 12 months in the aggregate within any 36-month period.”[9] The original rule supplied the law with a much broader definition of a public charge compared to the new rule. Under the new rule, the Trump Administration can label immigrants as public charges through specifically targeting those who have used at least one public resource for at least one year, thus making it easier to bar more immigrants from receiving green cards.
After the enactment of the updated public charge definition, five state judges issued injunctions blocking the implementation of Trump’s policy. Ultimately, two petitions were brought to the U.S. Supreme Court: Department of Homeland Security v. New York (2020)[10] and Wolf v. Cook County (2020).[11] In New York, the Court issued a 5–4 opinion in favor of lifting preliminary injunctions from states which restricted the new program.[12] In effect, this means the states have to follow the new policy, even though their individual governments do not agree with it. The Court reached a similar ruling in Wolf, with the conservative majority again ruling in favor of the Department of Homeland Security and lifting an injunction on the public charge definition. The dissent in Wolf, written by Justice Sotomayor, seems to be a direct response to the New York decision written by Justices Gorsuch and Thomas. According to Justice Sotomayor, the government’s claim that it is entitled to a stay based on the decision made in New York is inaccurate because the scope of the injunction in New York was nationwide, while the injunction in this case is limited to just one state and did not interfere with federal policy.[13] Furthermore, she stated that the government’s use of this argument is merely a manifestation of its “inability to enforce its immigration goals, possibly in only the immediate term, in one of the 50 states.”[14]
Due to the ongoing coronavirus pandemic, multiple states asked the Supreme Court to reconsider allowing the policy to go into effect. While it is unprecedented for the Supreme Court to directly reverse its rulings without a new case at hand dealing with the same issue, New York, Connecticut, and Vermont all urged the Court to make an exception until the emergency passes.[15] Their motion stressed the immense danger the current rule poses to immigrants and their communities, who have less access to health care.[16] This motion would protect immigrant communities from COVID-19 by reducing fear that they could be reported as undocumented by medical professionals. This is clearly a reasonable request, considering immigrants without any form of legal documentation are far less likely to seek emergency or medical help than those who lack documentation.[17] Nonetheless, the Supreme Court denied this request with no dissent, but suggested that the states look to district courts for further relief.[18]
The revised public charge rule that impacts the Immigration and Nationality Act, along with the two subsequent Supreme Court rulings upholding it, endangered individual’s lives prior to the pandemic. However, they now pose even more of a threat. Given the unprecedented reach and effect of the coronavirus pandemic, everyone who needs treatment should be able to receive it. This policy is preventing people from receiving vital medical attention and will result in even more infections and loss of life.
[1] For example, President Trump once said, “For decades, open borders have allowed drugs and gangs to pour into our most vulnerable communities. They have allowed millions of low-wage workers to compete for jobs and wages against the poorest Americans.” See Hal Singer, While Trump Blames Immigrants for Low Wages, an Alternative Theory Gains Traction Among Economists, Fᴏʀʙᴇs (Feb. 1, 2018), https://www.forbes.com/sites/washingtonbytes/2018/02/01/while-trump-blames-immigrants/.
[2] Muzaffar Chishti & Jessica Bolter, “Merit-Based” Immigration: Trump Proposal Would Dramatically Revamp Immigrant Selection Criteria, but with Modest Effects on Numbers, Mɪɢʀᴀᴛɪᴏɴ Pᴏʟɪᴄʏ Iɴsᴛɪᴛᴜᴛᴇ (May 30, 2019), https://www.migrationpolicy.org/article/merit-based-immigration-trump-proposal-immigrant-selection.
[3] Julie Hirschfeld Davis et al., Trump Alarms Lawmakers With Disparaging Words for Haiti and Africa, Tʜᴇ N.Y. Tɪᴍᴇs (Jan. 11, 2018), available at https://www.nytimes.com/2018/01/11/us/politics/trump-shithole-countries.html.
[4] Id.
[5] Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41292, 41508 (Oct. 15, 2019).
[6] Michael D. Shear & Eileen Sullivan, Trump Policy Favors Wealthier Immigrants for Green Cards,Tʜᴇ N.Y. Tɪᴍᴇs (Aug. 12, 2019), available at https://www.nytimes.com/2019/08/12/us/politics/trump-immigration-policy.html.
[7] The Immigration and Nationality Act of 1965, 8 U.S.C. § 1182(a)(4)(A) (1965).
[8] Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28689, 28693 (May 21, 1999).
[9] Inadmissibility on Public Charge Grounds, supra note 3 at 41295 (Oct. 15, 2019).
[10] Department of Homeland Security v. New York, No. 19A785 (U.S. filed Jan. 13, 2020) [hereinafter New York].
[11] Chad Wolf, Acting Secretary of Homeland Security, v. Cook County, Illinois, No. 19A905 (U.S. filed Feb. 13, 2020) [hereinafter Wolf].
[12] New York, No. 19A785 (U.S. filed Jan. 13, 2020).
[13] Id. at 2.
[14] Id.
[15] New York, No. 19A785 (U.S. filed Jan. 13, 2020).
[16] Adam Liptak, Supreme Court Asked to Suspend Wealth Test for Green Cards in Light of Virus, Tʜᴇ N.Y. Tɪᴍᴇs (April 20, 2020), available at https://www.nytimes.com/2020/04/13/us/coronavirus-wealth-test-supreme-court.html.
[17] Claudia Boyd-Barrett, Fear Pushes More Immigrants to Avoid Seeking Medical Care, CᴀʟɪғᴏʀɴɪᴀHᴇᴀʟᴛʜRᴇᴘᴏʀᴛ (Feb. 5, 2018), https://www.calhealthreport.org/2018/02/05/fear-pushes-immigrants-avoid-seeking-medical-care/.
[18] Wolf, No. 19A905 (U.S. filed Feb. 13, 2020) (order denying the request to suspend the public charge rule).