History of the “public charge”

Although the U.S. started as very welcoming to immigrants, the country hasn’t always extended open arms to everyone. For example, in the late 1800’s and early 1900’s Congress enacted laws that restricted immigration from certain countries (e.g. the Chinese Exclusion Act of 1882 and the Immigration Act of 1924). Those laws judged people based on national origin.

The “public charge” rule was a different type of judgment that appeared around the same time. The “public charge” rule judges people based on how much they’ll cost the government. And it was long ago that the government decided it wanted to reserve the right to block immigration of people who can’t take care of themselves. The current government is taking a harsher stance on what it means to be able to care for oneself.

According to the plaintiffs’ complaint, the phrasing “public charge” was originally used in immigration law in 1882. That rule was intended to keep out “any convict, lunatic, idiot, or any person unable to take care of himself or herself without becoming a public charge.” Since then, Congress has approved several components of immigration law aimed at excluding people based on poverty, mental or physical disability, or political or moral beliefs.

The Immigration and Nationality Act of 1952 includes the “Public Charge Rule” relevant in this case. Congress decided to allow the federal government a means to disqualify someone from immigration if he or she was likely to become primarily dependent on the government to live. The rule mostly picked out people who were likely to receive either an extensive amount of institutionalized care at the cost of the government or a large amount of cash assistance from government benefits programs.

Federal agency responsibility

In enacting the INA, Congress delegated the responsibility to administer the immigration laws to certain federal agencies. Today, the Department of Homeland Security clarifies rules and procedures of the INA, including the “public charge” grounds of inadmissibility, and US Citizenship and Immigration Services (a component of DHS) makes immigration determinations.

Congress gave DHS the power to clarify what factors will qualify someone as a “public charge,” and DHS must stay within the confines of the INA. That’s the first place the plaintiffs argue DHS went wrong. First, here’s what the new rule changes.

The new federal agency Public Charge Rule

On August 14, 2019 the Department of Homeland Security passed a set of guidelines changing the way the government will evaluate whether someone is a “public charge.” Now, individuals seeking to immigrate can be disqualified as a “public charge” based on a larger number of factors. Under the new rule, the following factors weigh heavily towards disqualifying someone from immigration:

• The applicant is not in school and authorized to work but doesn’t have a job and does not have a reasonable prospect of getting one.

• The applicant has received or has been approved to receive 12 months of public assistance over a period of 36 months. The types of public assistance factored include not just cash assistance like the earlier rule but also food stamps, Section 8 housing assistance and other federal housing subsidies.

• The applicant has been diagnosed with a medical condition that could require extensive medical treatment or institutionalization and the person doesn’t have health insurance or a good prospect to get insurance.

Additional factors that the government will consider and could disqualify someone include:

• Assets, income and credit score

• English speaking ability

• Education

The lawsuit

Four states (California, Pennsylvania, Oregon and Maine) and Washington D.C. sued the federal government, arguing the new Public Charge Rule violates the law. The complaint (filed in federal court in California) challenges the new rule based on a number of federal laws and also the 5th Amendment of the Constitution.

The Immigration and Nationality Act

Plaintiffs argue that when Congress passed the INA, it didn’t intend for the federal government to include such expanded factors to disqualify someone. The plaintiffs recount the history of the “public charge,” from where it came and how it has been used in the past, to say that it was supposed to be a rarely used exception for people who are primarily dependent on the government to live — like in an institution or by receiving public cash assistance.

The new rule, plaintiffs argue, can disqualify large numbers of people merely for being poor, or for having a disability. When Congress passed the INA, plaintiffs say, “public charge” had a different meaning and the federal government doesn’t have the authority to make such a large expansion.

The Administrative Procedure Act

The APA governs agency behavior generally. It has several pieces of text aimed to prevent federal agencies from behaving badly and the APA allows suits against federal agencies if any of the improper behavior prongs are satisfied. One of them is simply if the agency acts contrary to law. Thus, plaintiffs’ claim that the government is violating the INA falls technically as an APA claim. Furthermore, however, plaintiffs claim the government has acted “arbitrarily and capriciously” and “abused its discretion.” If the government decides to ignore a bunch of facts about the effects of the policies they are proposing, for example, that could be acting “arbitrarily and capriciously.” If the government is creating a polity because it is “out to get” certain types of people (like immigrants) that are politically unpopular, that’s an abuse of discretion. Plaintiffs make these claims too.

The Rehabilitation Act

The Rehabilitation Act can be a strong claim against the federal government in this case. The Rehabilitation Act prohibits government behavior that discriminates against individuals with disabilities. So even if the INA allows the federal government to expand the public charge grounds extensively, the government still can’t discriminate against people with disabilities. Plaintiffs claim the rule does. The rule clearly picks out people who have medical conditions and makes it harder for them to get public benefits, and in order to pass scrutiny under the Rehab Act, the government must have a good reason for it.

The Fifth Amendment

If the federal government passed the new rules because it dislikes immigrants of certain races, the Fifth Amendment won’t like it. The Fifth Amendment requires “equal protection” of the laws based on race, ethnicity and national origin. The government can’t use the laws to effectuate dislike towards certain races, ethnic groups, and people of certain foreign countries. Of course, the government’s justification for the rule is money (to save money), so this ground will be an evidentiary one. And it’s unclear to what extent the court will want to dive into the government’s rationale because it did not in the Travel Ban case.

Another Fifth Amendment ground the plaintiffs ask the court to consider is whether the government is discriminating based on just general dislike of immigrants (so not necessarily predicated on race or ethnicity but just an improper reason). The Fifth Amendment prevents the government from making laws just out of political dislike, so the plaintiffs will try to show, again, that the government’s justification of trying to save money is not the real reason it made the public charge rule.