On August 12, 2019, the Department of Homeland Security (DHS) announced a change to the interpretation of a statute known as the public charge rule. The statute under consideration, Section 212(a)(4) of the Immigration and Nationality Act (INA) states:

Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible[…] In determining whether an alien is excludable under this paragraph, the consular officer or the Attorney General shall at a minimum consider the alien’s-(I) age;  (II) health; (III) family status; (IV) assets, resources, and financial status; and (V) education and skills . . .

Under the new rule, officers would consider the totality of the circumstances, weighing the positive and negative factors listed above, when determining whether an alien is likely to become a public charge. In announcing the new rule, Acting Director Cuccinelli stated, “[F]or over a century, the public charge ground of inadmissibility has been part of our nation’s immigration laws…Throughout our history, self-sufficiency has been a core tenet of the American dream.”

While Acting Director Cuccinelli is correct that a public charge ground has been on the books for over a century, he fails to mention that from 1776 to 1882 immigration to the United States was unrestricted at the federal level. More critically, he fails to recall the controversy of this clause from its inception. Now, as it was a century ago, the majority of Americans do not support highly restrictive immigration. President Wilson, citing America’s reputation as a land of opportunity and refuge, twice vetoed the bill that laid the foundation for the modern public charge rule. Congress had to override Wilson’s second veto for it to become law.

It is no coincidence that the Trump administration and the nativist lawmakers of the early 20th century rely on this clause to target specific populations. The clause is inherently prejudiced. It requires the consular or immigration officer to prejudge the likelihood of a future event using a definition created by those seeking to exclude specific groups. The reason the Trump administration needs a new rule to strengthen enforcement of this clause is because over time legal challenges have limited the discretion available to consular and immigration officers, weakening enforcement. 

The administration, seeking to further restrict legal immigration, relies on the model created by nativist lawmakers at the turn of the 20th century. The 1882 Immigration Act authorized the inspection of migrants before ships could land in order to deny entry to “any convict, lunatic, idiot or any such person unable to take care of him or herself without becoming a public charge.” For the first time, government officials would inspect immigrants to ensure they would not pose a long-term danger or burden to the United States. The initial version of the public charge rule was a response to the increasing political power of Irish immigrants, whom nativist politicians believed were changing American demographics for the worse. 

In the aftermath of the First World War, restrictions tightened in an effort to prevent an influx of “undesirable Europeans,” specifically the Armenians, Jews, Persians and Russians displaced by war. The 1917 Immigration Act restricted immigration for the first time by banning most immigration from a designated geographic zone and by creating categories of inadmissibility– illiteracy, mental deficiency, physical deficiency, poverty, and certain political beliefs. The geographic restriction was explicitly designed to exclude Asians while the categories of inadmissibility targeted undesirable European populations. The following year a controversial Emergency War Measures Act mandated passports and visas for the first time in American history. This temporary war measure was made permanent with the 1924 law commonly referred to as the Quota Act, which made the likelihood to become a public charge a ground of inadmissibility. 

The public charge clause is a very effective means of restricting targeted populations. In September 1930, President Hoover issued an order to American Consular Officers to stringently enforce the public charge clause and the impact was felt immediately. Public records show that in the two months after the order, the State Department only issued 22% and 15% of the immigration quota visas. In January 2018, the Trump administration revived this strategy by updating the Foreign Affairs Manual to widen the range of public benefits that consular officers can consider when determining whether visa applicants can be denied on the public charge ground.  

Politico reports preliminary data showing that 12,179 visa applicants were rejected on this ground in the first half of 2019. Comparatively, in the last fiscal year of Obama’s presidency, only 1,033 visa applications were denied on this ground. The Migration Policy Institute, analyzed US Census Bureau data and found that 69% of those admitted to legal permanent residence in the last five years had at least one negative factor. Unsurprisingly, given the administration’s rhetoric, immigrants from Mexico and Central America appear most vulnerable to these denials because 60%  had two or more negative factors and only 23% had the heavily weighted positive factor of median income of at least 250% of the Federal Poverty Level. 

In a 1915 speech, President Wilson warned that limiting immigration through “arbitrary tests” would “reverse the policy of generations of Americans that have gone before.” The tests, according to Wilson, were tests of opportunity not of character. Wilson believed in America as the land of opportunity and argued that prior access to opportunity should not be a requirement for admission. For President Wilson, and most Americans, the US stands as a land of opportunity and refuge. As President Wilson rightly assessed,  “[T]he object of such provisions is restriction, not selection.” The public charge rule is legislated prejudice and, as history shows, it is sure to be challenged in the courts but until then damage will be done, just as it was a century ago. 

Anne Bloomberg is the First Place winner of the first JURIST Student Commentary Contest. She is also a 1L at the University of Pittsburgh School of Law. 

Suggested citation: Anne Bloomberg, The Public Charge Rule—How to Legislate Prejudice, JURIST – Student Commentary, September 20, 2019, : https://www.jurist.org/commentary/2019/09/anne-bloomberg-public-charge/

This article was prepared for publication by Brittney Zeller, Deputy Managing Editor for JURIST Commentary. Please direct any questions or comments to her at commentary@jurist.org