When U.S. Citizenship and Immigration Services, a subordinate agency within the Department of Homeland Security (USCIS/DHS), proposed to issue new rules to limit the use of social welfare programs by immigrants intending to adjust status to lawful permanent residence, else risk being deemed ineligible and thus removable as a "public charge", one could be forgiven for thinking that the sky had fallen in.
There was the usual hue and cry from migrant advocates, despite the fact that the law on which the public-charge rule is based goes back decades beyond its current iteration in the Immigration and Nationality Act (INA), which itself was passed in 1952. In fact, public charge exclusions are among the first, and most consistent, immigration laws enacted by Congress. That is because one of the backbones of our nation's immigration policy has always been that migrants should be productive members of society, and not dependent upon nor beholden to the public fisc to survive. This makes good sense.
In point of fact, not many aliens will likely be affected, although the cumulative savings to the federal treasury are likely to be substantial. Understanding the regulatory change requires a knowledge of history. These rules alter a regulation issued during the Clinton administration, which, despite its tough talk about immigrants' social responsibilities, chose to interpret the public charge law to only encompass cash benefits, thus exempting a variety of non-cash forms of assistance and leaving them open to use by aliens. The Trump administration has closed that nonsensical loophole, or "sinkhole", given that it included such massive programs as Medicaid and many other programs used heavily by immigrants.
Think of it this way: When you as a taxpayer accrue non-cash benefits in the course of a year — things such as free use of a vehicle, or in-kind payments of stock in lieu of money, whatever — do the auditors at the Internal Revenue Service consider that the equivalent of "taxable income"? You bet they do. So in what orderly universe do use of non-cash social services and welfare benefits by aliens not constitute a "public charge", a burden on the taxpayer? Those programs aren't free; they eat up huge amounts of public funding.
The hue and cry from migrant advocates was reliably joined by open-borders-inclined political leaders, including many in Congress who called the new regulations cold-hearted. They apparently think of the U.S. Treasury as a garden filled with money trees from which one can simply pluck a crop of cash whenever need arises.
With last month's issuance of the final rule implementing the regulatory changes, the inevitable coalition of advocacy groups, plus various progressive state attorneys general, banded together to sue the administration over the new rules, as they always seem to do. So did some counties, such as the California sanctuary jurisdictions of Santa Clara and San Francisco. They are happy to share their largesse with aliens in the United States, legally or otherwise — provided of course that they are able to keep their hands in Uncle Sam's pocket to do so.
At some point, it would appear that a member of Congress turned to its research arm, the Congressional Research Service (CRS) and asked it to produce an analysis of the changes. It is a flawed and disappointing piece of scholarship written by a CRS legislative attorney. The very first paragraph reads as follows:
On August 14, 2019, the Department of Homeland Security (DHS) published a final rule that contains new regulations interpreting the public charge ground of inadmissibility in the Immigration and Nationality Act (INA). The rule would likely bar more non-U.S. nationals (aliens) from becoming lawful permanent residents (LPRs) due to their potential future use of public benefits. Specifically, the rule would render aliens inadmissible to the United States — and thus ineligible to obtain LPR status — if they are "more likely than not at any time in the future to receive one or more public benefits ... for more than 12 months within any 36-month period." Some non-cash federal benefits, including most forms of Medicaid and benefits received under the Supplemental Nutrition Assistance Program (SNAP), would count as "public benefits" under the final rule, in contrast to pre-existing law. [Emphasis added.]
The paragraph clearly suggests that the Trump administration is using a regulation to change the law. That is not only untrue, it would be illegal to do so.
As every first-year law student is taught, regulations may only be issued pursuant to statute; they cannot be issued in a vacuum, because to do so would be evidence of an executive agency usurping Congress's constitutional law-making function (one reason that many observers including me considered the Obama administration's DACA program to be illegal and unconstitutional).
The purpose of regulations is to clearly lay out the manner in which the responsible agency intends to implement and administer the statute on which it is based. A regulation may never exceed the boundaries of the statute on which it is based.
Another law, the Administrative Procedure Act (APA), defines the ways in which such rules must be publicly announced, including a mandatory 90-day period in which they are held in abeyance (absent exigent circumstances) pending receipt of public comments that may influence the shape and verbiage of the final promulgation of the rules.
While one may like or dislike, agree or disagree, with the Trump administration's decision to include non-cash public benefits in its interpretation of the public charge law embedded in Section 212(a)(4) of the INA (8 U.S.C. Sec. 1182(a)(4)), no one can reasonably say that it has changed the public charge statute. Perhaps the better question is why the Clinton administration so obviously undermined the intent of the public charge law in the first place by limiting its reach only to cash programs.
But to revert to the CRS report: Even if it was innocently phrased, but in error, by beginning the very first paragraph with a significant misstatement, the author has left readers with the impression that the administration has violated both the INA and the APA by going beyond the statute's boundaries. It's done nothing of the sort, and to suggest this is wrong.