The public charge rule change is nefarious in both intent and impact and it has already created fear among families that they will be separated or that they will never reunite, writes Sara Shapiro. 

On the base of the Statue of Liberty, the following words, written in 1883 by poet Emma Lazarus, are engraved:  

“Give me your tired, your poor,

Your huddled masses yearning to breathe free,

The wretched refuse of your teeming shore.

Send these, the homeless, tempest-tost to me, 

I lift my lamp beside the golden door!” 

The United States has never quite lived up to Lazarus’ words.

This is the same America that passed the Chinese Exclusion Act in 1882, which banned Chinese laborers from immigrating to the United States and making it so that those immigrants from China already present in the U.S. could not become citizens. The Act led to mob violence against Chinese Americans and many ended up emigrating from the U.S. because of the hostile environment they faced in the American towns and cities they considered home. 

And, of course, this is the same America that refused to lift its immigration quota for Jews seeking refuge from the violence they faced in Central and Eastern Europe, leading Hitler to proclaim that, “Nobody wants these criminals,” and eventually helping him to justify genocide. 

Harsh immigration restrictions are not just emblematic of American xenophobia and isolationism, they lead to real and preventable deaths. Today, we face a similar resurfacing of outwardly anti-immigrant, racist, and xenophobic language, embedded in the policies of those with immense power. 

America has time-after-time failed to uphold its promise of morality, but nonetheless Lazarus’ words have remained engraved, a symbol that the U.S. continues to project the image of being a safe haven for those seeking such safety. And for some years and for some people, America did serve as that haven, with Ellis Island processing millions of people fleeing persecution and poverty, including my own great-grandparents. 

And, for some people, America continues to be that haven. 

But, on Tuesday, top Trump immigration official Ken Cuccinelli told NPR that last lines of the engraved poem should be changed to:

“Give me your tired and your poor 

who can stand on their own two feet 

and who will not become a public charge.” 

During an interview with journalist Erin Burnett (CNN), Cuccinelli, defending his word choice, said: “Well, of course that poem was referring back to people coming from Europe, where they had class-based societies where people were considered wretched if they weren’t in the right class.” What Cuccinelli is actually saying here, of course, is that while twentieth century white European immigrants were alright, modern immigrants of color are a public burden. While definitions of whiteness have changed considerably since the twentieth century, Cuccinelli’s racist intent is clear to all who wish to see it. 

Lazarus, herself, was a fourth-generation American Jew. According to Esther Schor, a biographer of Lazarus, “Ms. Lazarus not only insisted that American Jews come to the aid of Jewish refugees…She wrote ‘The New Colossus’ to argue that aiding the poor and oppressed of all lands was the mission of all Americans, the mission of America itself.” 

It is easy to infer what she would have thought about Cuccinelli’s assertion that her words were meant only for some, and not for all. 

The “Public Charge” Rule

Cuccinelli’s disturbing comments come off the recent announcement that the Trump administration is changing the “public charge” rule. The text of the rule states that the Department of Homeland Security (DHS) “is revising its interpretation of ‘public charge’ … to better ensure that aliens subject to the public charge inadmissibility ground are self-sufficient, i.e.,do not depend on public resources to meet their needs, but rather rely on their own capabilities, as well as the resources of family members, sponsors, and private organizations.” 

Fundamentally, the rule change puts into jeopardy the immigration status of immigrants who are low-income and who rely on public benefits, including “cash benefits for income maintenance, Supplemental Security Income, Temporary Assistance to Needy Families (TANF), Supplemental Nutritional Assistance Program (SNAP), most forms of Medicaid, and certain housing programs,” according to the Presidents’ Alliance on Higher Education and Immigration. If immigrants are deemed “public charges” because of enrolling in one or more of these programs, it hurts their chances of becoming legal permanent residents by receiving green cards.

The rule does not just count enrolling in one of these public services against one’s immigraiton status; merely being at risk to become a “public charge” can be detrimental. Low education level, low English proficiency, having previously received public benefits, lacking private health insurance, not being of working age, and having a three-person family income below 125% of the federal poverty level ($26,663) are all also considered negative factors under the revised rule.

While “public charge” is not a new policy, in that it has been around since the Immigration Act of 1882, prior the definition of a public charge was someone “primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense.” Enrolling in Medicaid, for example, would not have counted against one’s green card application.

All people who are applying to enter the U.S. or who are looking to achieve permanent resident status must pass the public charge test unless they are: applying for refugee or asylum status (or have already achieved that status and are then applying for a green card); Amerasian immigrants; those who fall under the Cuban Adjustment Act, the Nicaraguan and Central American Relief Act, or the Haitain Refugee Immigraiton Fairness Act; those applying for T or U Visas (or who have already achieved T or U Visa status and are applying for a green card); special immigrant juveniles; VAWA self-petitioners; applicants for Temporary Protected Status; or applying to renew their DACA status. Those who are exempted from the original public charge rule continue to be exempt under the rule change. 

Nonetheless, there remain many folks waiting abroad to be united with family members in the U.S. who will be pushed aside because of their lack of wealth. And, there remain many folks outside of the aforementioned categories who are legally present in the U.S. and are awaiting legal permanent resident (LPR) status who will be denied such status on the basis of their enrollment in public benefits.

An issue brief on the proposed rule change published in 2018 found that “nearly all (94%) noncitizens who originally entered the U.S. without LPR status have at least one characteristic that DHS could potentially weigh negatively in a public charge determination” including having an income below 125% of the federal poverty line. This is not an insignificant population who will be affected by the rule change; the new rule will affect the vast majority of noncitizens subject to public charge determinations. 

This will, in turn, vastly affect the American landscape of public benefits. The same researchers estimated that “there were over 14 million Medicaid/CHIP enrollees living in a household with at least one noncitizen” and “if the proposed rule leads to Medicaid disenrollment rates ranging from 15% to 35%, between 2.1 million and 4.9 million Medicaid/CHIP enrollees living in a family with at least one noncitizen would disenroll.” CHIP refers to the Children’s Health Insurance Plan and provides coverage to children from low-income families, often through Medicaid. 

According to the Kaiser Family Foundation, “lawfully present immigrants are more likely than citizens to live in low-income families and often work in jobs and industries that do not offer health coverage,” thus relying on Medicaid and CHIP for coverage. Over seven million children who rely on CHIP for health insurance either live with a noncitizen or are themselves a noncitizen and are therefore at risk for disenrolling from their health insurance plans so as not to compromise the immigration statuses of their family members.

In other words, this is an issue of public health, just as it is an issue of immigration and just as it is a moral issue; like all facets of American politics, many planes of oppression and policy intersect to impact those communities that are already marginalized by the federal government. 

This is an immoral executive action that holds immigration status contingent on wealth. This is a rule that considers people only in terms of their economic contribution (even though noncitizens do pay taxes that contribute to their receiving public benefits) and denigrates the importance of reuniting families and creating an American institutional framework that values empathy and compassion over fear-mongering and hateful rhetoric.

This is just one more step in a coordinated conservative effort to create fear in immigrant communities and further the xenophobic agenda of Trump and his dangerous lackeyes. 

Right now, the healthcare.gov website still assures noncitizens that “applying for Medicaid or CHIP, or getting savings for health insurance costs in the Marketplace, doesn’t make someone a ‘public charge.’ This means it won’t affect their chances of becoming a Lawful Permanent Resident or U.S. citizen.” 

But soon, unless a lawsuit prevails, this will not be true anymore. Let’s say you are hoping to obtain a green card and you have a young child who should be enrolled in CHIP. However, you are worried that if you enroll your child in the public service, you will be denied permanent residence status on the basis of being a public charge. You are placed in the impossible bind of on the one hand wanting to do what every parent wants to do and should be able to do – ensure their child can access primary health care – and on the other, being denied a green card because the government deems you a “public charge” and being separated from your family.  

“Public Charge” is a Racialized Policy

Trump and Cuccinelli and all those working toward their goals have decided that it is not enough to run a country that separates children from families, detains those seeking asylum for far too long in unsafe and unsanitary conditions that have led to death, and profits off of the detention of those seeking safety in the U.S. 

This is not just a rule that holds citizenship contingent on not being poor, it also, subsequently, holds citizenship contingent on not being a person of color from a country that our president has determined is a “shithole,” to use his own words. 

According to the Migration Policy Institute, “the potential rule would effectively create the potential for a major back-door overhaul of the legal immigration system by imposing new standards that would fall most heavily on would-be immigrants from Asia, Latin America, and Africa. Family-based immigration…would be most affected, with significant regional, national, and racial effects on future flows.” Noncitizens from the Carribean, Mexico & Central America,Africa, Asia, and South America are significantly more likely to live in a family unit with an annual income under 250% of the federal poverty line than those from Europe, Canada, and Oceania, also according to the Institute. 

Really, this rule change is about excluding people from certain countries and backgrounds. My assertion is not just based on inference, but is supported by Cuccinelli’s own insistence that Lazarus’ words should only apply to those from Europe.

The Economics

I have written about how we should center humanity rather than economics in the immigration debate, because otherwise we further the dehumanization of those seeking entry into the U.S. I wholly maintain my stance on this – we should not be framing any human being as being a public charge or burden. Using such language helps to “other” those who are different from us, and perpetuates the cycle of dehumanizing rhetoric. 

Nevertheless, I acknowledge that sometimes it is necessary to pull out economic facts to overturn policy and prove that certain rhetoric is false. So, if my arguments that this new rule is xenophobic, classist, and downright hateful are not convincing enough, keep reading. 

According to the Wall Street Journal: “the U.S. has about four million foreign-born workers with less than a high-school diploma who earn on average $27, 820 per year. They hold vital jobs across the economy that there aren’t enough citizens to fill.” And, “incomes of immigrants ages 26 to 40 arter a mere four year sin the U.S. rose to 300% form 239% of the poverty line – nearly the average of native-brn counterparts.” Hispanic immigrants are also more likely to work than high-school educated native-born white Americans.  

Immigrants pay taxes. Immigrants seek education for themselves and their children. Immigrants work and contribute to the American economy. And still the administration contends that they are public charges, denying both the real economic contributions they make to American capitalism, which relies on their labor, as well as their humanity.

As a bit of a digression, most undocumented immigrants (differentiated from noncitizens in that noncitizens are legally present in the U.S.), including Dreamers, are not able to access most public benefits according to the National Immigration Forum. This is especially concerning in regard to health care, in that undocumented immigrants cannot receive subsidies under the Affordable Care Act, rendering marketplace insurance financially unattainable for most. Yet, undocumented immigrants (as well as documented noncitizens) pay an enormous amount of money into public benefit programs through taxes, despite that fact that they are ineligble for most of the benefits their money is supporting. 

Now, the Trump administration is trying to make it so that even those taxpaying immigrants who are legally present in the U.S. do not utilize those same public benefits. If that is not unjust, I do not know what is. 

Challenging the Rule

The lawsuits against the public charge rule change have begun. 

San Francisco and Santa Clara County in California have taken the rule to court, suing the federal government. San Francisco City Attorney Dennis Herrera, in a statement on the matter, said: “It makes it easier to unfairly target hard-working, lawful immigrants while sowing fear and confusion in our communities. This rule forces people to make an impossible choice: their health or a better future for their family.” The lawsuit focuses on how the rule change represents a drastic shift away from how the public charge rule has historically been conceived and applied, as well as drawing in new factors that seem unrelated to the original public charge rule, like family size. 

Oregon (joined by California, Maine, Pennsylvania and the District of Columbia) also decided to sue the federal government over the rule change on the basis that it is in violation of the equal protection clause of the fifth amendment, in that the rule change will systematically and disproportionately keep out people of color. The state further argues that the rule change is “arbitrary and capricious” in that the function of public benefits programs is to reduce wealth inequality, so it is nonsensical to prevent people from enrolling in such services.

New York, Connecticut, and Vermont became the most recent states to issue lawsuits against the federal government over the rule. New York Attorney General Letitia James said, “Under this rule, children will go hungry; families will go without medical care. I am committed to defending all of New York’s communities, which is why I intend to sue the Trump Administration over this egregious rule.” 

The three states are arguing that the new rule violates equal protection guarantees and is a discriminatory part of the Trump administration’s desire “to reduce the population of permanent residents of color of the United States.” The suit contextualizes the rule change within a broader array of instances of the Trump administration seeking to restrict immigrants of color, such as the Muslim travel ban. 

In total, there are more than 60 lawsuits against the federal government regarding the new rule currently pending.

The Wall Street Journal editorial board argued that the rule is “vulnerable to legal challenges” because “while supposedly trying to flesh out a vague statute, DHS is essentially rewriting immigration law on its own. And wouldn’t you know, the rule bears a striking resemblance to the ‘merit-based’ system that restrictionists in the White House have proposed but can’t get Congress to pass. If this sounds like Barack Obama’s legislate-by-rule strategy on climate change, that’s because it is.”  

Meanwhile, according to the Immigrant Legal Resource Center, some attorneys “have been discouraging clients from accessing critically needed services because of uncertainty as to what service could jeopardize future immigration options for their clients.” Immigration reporter Nicole Narea wrote that the rule “could be struck down following imminent legal challenges,” but maintained that the rule “has already created a fearful environment that deters immigrants from accessing those benefits.” Stephen Yale-Loehr, professor of law at Cornell, told Law360 that “the fear factor alone may make this a ‘win’ for the administration in its war on immigrants.” 

Even if the rule gets struck down, the fear it will have mongered among American immigrant communities will have devastating consequences. 

We must come together as a nation and decide how we would like this era to be written about in textbooks. We must stop using language that implies that Trump’s immigration policies make the legal immigration system more “merit-based,” for that language assumes that merit is based on wealth and whiteness.

All presidential actions taken to make America a more hateful and less compassionate place should be met with the most rigorous scrutiny and the most potent forms of resistance; the public charge rule change is nefarious in both intent and impact, has already created fear among families that they will be separated or that they will never reunite, and, above all, it demands our full attention for it is an attempt to redefine the core values of these United States.

Sara Shapiro

Sara Shapiro is a Generation Z Voice at The Pavlovic Today. Her interests include congressional investigations, youth social activism, public interest law, environmental justice, and reproductive justice....