The “Public Charge Clause” and the Role of Arbitrariness in Historic Immigration Policy
“Their presence is a disturbing element that tends only to evil and corruption.” “These are not people, these are animals.” When confronted on their position on immigrants, one of these comments was made by John H. Wise, infamous bigoted San Francisco collector of customs in the 1890s, and the other comment was made by former president Donald Trump.
Considering the immense contributions of immigrants to American society, it is disturbing to see government officials in the highest executive positions openly preach racist anti-immigrant rhetoric that closely mirrors sentiments of immigration officers from the 19th century. Needless to say, John H. Wise would have had no problem finding a job in America’s modern immigration enforcement agencies. In fact, Wise would have especially supported former president Trump’s efforts in Department of Homeland Security v New York (2020), where the Supreme Court allowed the Department of Homeland Security to expand the definition of the “public charge” clause in order to empower federal immigration officers to arbitrarily deny immigrants entry into the United States.
The public charge clause originated from the Immigration Act of 1882, in which immigration officers were given the power to bar immigrants from entering the country if they believed the migrant was “likely to become a public charge,” or become heavily dependent on government welfare programs. The historical context of this clause is critical as historical and modern anti-immigrant movements employ similar justifications and methods to disempower immigrant communities.
The public charge phrase was originally implemented in tandem with the Chinese Exclusion Act of 1882, which completely barred the entry of new Chinese immigrants. Immigration officers like Wise took enforcement of this act to the extreme and even denied entry to Chinese individuals simply returning to their legal residence in the U.S. According to Wise, The Chinese Bureau’s purpose was to “reduce the number of Chinese in this country [so that] this country has one less Chinaman.” Regardless of whether a Chinese resident had the proper paperwork, it was almost entirely up to the discretion of the immigration officer that would arbitrarily determine whether legal Chinese residents could enter the U.S. At the time, nativist sentiment was extremely strong, and immigrants, especially those of East Asian origin, were seen as an undesirable plague to society whose familial and economic values were incompatible with American society.
This once-dormant phrase reappeared in 2019 when The Department of Homeland Security (DHS) announced its intentions to expand the definition of “public charge” to encompass anyone who receives one or more public benefits from the government. This redefinition would allow immigration officers to deny entry to the U.S. solely based on the officer’s belief that the immigrant would be a long-term recipient of even one type of cash or noncash welfare program for over a year. Expanding public charge would allow immigration officers to weaponize personal anti-immigration biases and argue that they believed that the migrant would end up a financial burden for the state.
Unfortunately, the American public would not need much convincing that immigrants are a financial burden. Immigrants are often mischaracterized as exploiters of the American welfare system. According to The Cato Institute, however, poor native-born families consistently utilize welfare programs more than poor immigrant families. Non-citizen adults are around 25% less likely to be enrolled in Medicaid than poor native-born adults. On average, poor non-citizen adults also receive 825 dollars a year in food stamp benefits compared to an average of 1,091 dollars a year for native-born poor adults. In general, poor immigrants have lower rates of public welfare usage and, even when they are enrolled, they also receive less in total benefits than poor native citizens. In contradiction with popular belief, poor immigrant families are a lesser burden on taxpayers than poor natives.
It is also worth noting that Americans often have a very narrow view of the U.S.’s welfare state, evidenced by the wording of the potential expansion of public charge. Many Americans imagine recipients of the American welfare state as undeserving and belonging to poor communities of color that leech off the hard work of white, native-born taxpaying Americans. According to Christopher Howard, programs like Aid to Families with Dependent Children, Food Stamps, and Medicaid make up the largely visible part of the American welfare state, where, as discussed above, immigrants are characterized as being disproportionate beneficiaries. However, the welfare state is far more comprehensive than just public assistance programs. Despite nearly half of the US population living in households receiving public benefits, immigration officers would be able to deny entry to a migrant for seeking to be a part of the U.S. welfare state. The belief that enrollment in one public welfare program is automatically a state financial burden indicates much of the American public have an extremely limited perception of the beneficiaries of the American welfare state.
The characterization of immigrant communities as exploitative is not a new phenomenon. Similar economic exploitation claims were made against Chinese immigrants in the 1890s amidst the birth of the public charge clause. Claims that Chinese immigrants were taking jobs, resources, and opportunities away from native Americans was a completely false, yet very compelling narrative that was spread by anti-Chinese immigration movements and eventually led to the full exclusion of Chinese residents from the country. Just as 1890s government officials characterized Chinese immigrants as “a disturbing element that tends only to evil and corruption”, modern government officials like former Attorney General Jeff Sessions and former President Trump have said immigrants immediately “begin to depend on government welfare” and that Mexican immigrants are all “drug dealers, criminals, and rapists.” Both characterizations parallel the usage of racist rhetoric that was used in the 1890s to justify stripping Chinese residents of their rights.
Lastly, even if current immigrants wanted to prove that they would not be reliant on American welfare programs, they would likely have a tough time doing so. Immigrants often do not have access to records of whether they received public welfare from their home country before migrating to the U.S. and therefore have no way of disproving an officer’s claim that they will be a public charge. Furthermore, the lack of records further enable officers to arbitrarily predict the likelihood that an individual would become a welfare recipient based on very limited information. The lack of a formal process for defining who is likely to be a public charge or not empowers the immigration officer to easily discriminate against immigrants based on race with little to no scrutiny on their decision-making.
The push for expanding public charge by The Department of Homeland Security fielded outrage from several non-profit organizations and even the State of New York. In Department of Homeland Security v New York (2020), the State of New York argued that the new definition would violate The Administrative Procedures Act which “governs the process by which federal agencies develop and issue regulations.” The district court sided with New York alongside Connecticut and Vermont in blocking the administration from utilizing the new definition, with the U.S. Court of Appeals for the Second Circuit also denying the government’s request to implement the rule. While the case was meant to proceed to the Supreme Court, the review of the public charge clause was dropped when the newly elected Biden Administration announced it would not be implementing the new definition. However, the case could resurface if Trump is reelected in the 2024 election given Trump’s immigration policies while he was in office.
Under this new understanding of public charge, there will likely be severe health and economic consequences for non-citizens. According to the Kaiser Foundation, the Trump administration's changes to public charge in 2019 incited widespread “fears and confusion lead[ing] to [immigrants] forgoing enrollment in or disenrolling themselves and their children from programs.” The Kaiser Foundation estimated that if SCOTUS picks the case back up and rules in favor of the Trump administration, it would lead to the disenrollment of 2 to 4.7 million Medicaid or CHIP enrollees who are noncitizens or citizens living with a non-citizen. Furthermore, immigrants coming into the country might be dissuaded from seeking enrollment in public welfare programs, fearing it would impact their admission to the country.
I am not advocating for zero immigration policies. Unrestricted immigration is just as unreasonable as the redefinition of public charge. However, the origins of the public charge clause give critical context for how dangerous the redefinition of public charge could be. The racist rhetoric used to justify the denial of legal immigration for Chinese migrants in the late 1890s, their barring from courts where they could find redress, and the eventual full disenfranchisement of Chinese residents indicates how the combination of false characterizations of immigrants and arbitrary immigration policies will severely impact immigrant communities. Modern policymakers are already actively spreading these narratives about migrants and the American immigration system desperately needs uniform regulations with no room for capricious decisions. 100 immigration officers should all come to the same conclusion as to whether an immigrant should be admitted or not. If Trump is elected and the Department of Homeland Security v New York is picked back up by the Supreme Court, and the Court rules in favor of Trump, it would represent the rejection of the seemingly core American principle that we are a society without racial prejudice, leading to the return of the unaccountable and unregulated nature of immigration enforcement agencies of the 19th and 20th centuries.