August 28, 2018

The New ‘Public Charge’ Rule Will Harm the Rule of Law, Economic Growth, and Public Health



The Trump administration will soon publish a new regulation that will dramatically alter the rules surrounding the provision of public benefits for nearly 27 million immigrants and citizens, and have significant consequences for the admission and permanent settlement of immigrants moving forward. Based on a draft of the proposal leaked earlier this year — which set off a public outcry at the time of its release — the rule would trigger the largest reform to the U.S. immigration system in 30 years.

Instead of narrowly targeting welfare fraud for enhanced prosecution or tweaking the current five-year ban on welfare usage for legal immigrants, the leaked regulation — which may change when ultimately published — casts an enormous net, entangling those immigrants who legally used benefits and the U.S.-citizen children of immigrants, undermining the administration’s claims that the move is meant to combat fraud. Most alarmingly, the regulation is guaranteed to set off a public health crisis, as evidenced by similar consequences from confusion over the 1996 welfare reform law.

This is a Massive Break With Precedent

The public-charge determination is part of the Immigration and Nationality Act (INA), which defines criteria for admission, status adjustment, and deportation. The public charge determination typically applies to an individual who relies primarily on the government. Over the last 20 years, four administrations have interpreted the INA to authorize denial of admission or deportation under public charge grounds if an immigrant relies primarily on just two programs: cash assistance or long-term institutionalized care. The new rule aims to build upon these two grounds and dramatically expand them to include other benefit programs — a wholesale rejection of years of longstanding policy.

The proposed rule would expand the factors used to weigh whether a person will or has become a public charge to include the use of any benefit by any person in their household even if they are eligible for them. The benefits in question are also expanded to include the Children’s Health Insurance Program (CHIP) and temporary food assistance programs for families. The test to admit or deport an immigrant no longer depends on dependency, but any receipt of any benefit, regardless of how minimal or brief. This includes the use of a benefit by a child who is a U.S. citizen.

A major issue with this rule is that the government is targeting immigrants for legally using benefits. At its core this is about fairness and expectations; it’s about the rule of law being applied consistently. Changing the rules and retroactively holding immigrants to new standards would punish a legal immigrant for using a benefit they have been allowed to utilize without trouble.

Laura Collins of the George W. Bush Institute explains that the new proposal is “particularly stunning” for mixed-status families: households where noncitizens and U.S. citizens live together. She explains that the public charge rule would deny green cards to families that have U.S.-citizen children who use the government benefits they are legally eligible for. In other words, it’s not just legal immigrants who would be punished for accessing welfare programs they otherwise qualify for. American citizens who access benefits they are due could see their family members being denied green cards as a result.

Turning a Scalpel Into a Carving Knife

The Migration Policy Institute (MPI) estimates that the proportion of noncitizens who could be branded a “public charge” would rise from about 3 percent today to 47 percent under this rule, as shown in the figure below. In absolute terms, that is a 15-fold increase in the number of immigrants who could be affected.

Jeanne Batalova et. al., “Chilling Effects: The Expected Public Charge Rule and Its Impact on Legal Immigrant Families’ Public Benefits Use” (Washington, D.C.: Migration Policy Institute, 2018).

The new public charge determination could prevent immigrants from receiving family-based visas or green cards if they or their family members received legal benefits. This would have two major effects. First, the threat of not receiving admission or adjustment will push lawful immigrants and U.S. citizens to forgo benefits, assistance, and tax credits they may be eligible for. Second, linking deportation to an expanded public charge determination can dramatically increase the ease with which immigrants can be removed. The result will be to damage the U.S. economy and cause a massive disruption to the U.S. immigration system.

Some classes of immigrants will remain exempt from the public charge restrictions, like refugees, asylees, trafficking survivors, and those holding U visas, which are offered to those that assist law enforcement in investigations.

The Bush Institute views the public charge rule as another element in a larger Trump administration strategy of slowing legal immigration flows. Collins writes that immigration is an important part of a pro-growth economic strategy and the new proposal would further complicate an already difficult legal immigration process. These complications for temporary workers and family-based immigrants would hurt economic growth.

The Cato Institute’s David Bier points out that in the draft rule, the Department of Homeland Security fails to consider the costs of losing immigrants who would be excluded by the rule and to estimate the direct and indirect effects of these exclusions on tax receipts and economic growth. DHS in its draft of the rule claims it “was not able to estimate potential lost productivity, early death, or increased disability insurance claims” that would result from the rule.

DHS should not proceed with the rule without making an estimate of such impacts, which could have extreme consequences for the U.S. economy. If think tanks can produce estimates of the number of individuals and households affected, DHS should be able to estimate costs. A regulatory change of this size without a complete economic analysis is irresponsible.

Immigrants Use Fewer Public  Benefits Than the Native-Born

DHS spokesman Tyler Houlton said in a recent statement to CNN that any changes to the public charge determination “would be in keeping with the letter and spirit of the law — as well as the reasonable expectations of the American people for the government to be good stewards of taxpayer funds.” The message coming from administration officials is that noncitizens are using public benefits at high rates, and are doing so fraudulently.

This is a difficult proposition to accept based on the facts. As Niskanen’s Kristie De Peña and Samuel Hammond wrote in the Hill:

Ever since the 1996 welfare reform, legal immigrants have been prohibited from receiving public benefits for at least five years after their arrival. And when noncitizens finally do become fully eligible for programs like SNAP or Medicaid, they use them at substantially lower rates, and in significantly smaller amounts, than their native-born counterparts. Low-income noncitizen adults and children, including those outside the five-year waiting period, nonetheless receive much less in average annual SNAP benefits compared to low-income naturalized citizens and the native-born. Even citizen children of noncitizen adults receive nearly 20 percent less in nutritional assistance on average.

According to a rigorous National Academy of Sciences study published in 2016, for all age categories but the elderly, immigrants use fewer public benefits than native-born Americans.

In fact, public assistance can make someone less likely to rely on government in the future. The temporary use of public benefits can stabilize immigrants and families, putting them on a track to long-term financial stability and health. “Our educational, nutrition, and healthcare programs are seen as serving the interests of the nation as a whole — not leading the recipient to a state of primary dependence,” write De Peña and Hammond. We should view public-benefit usage in terms of costs and benefits over the long-term, comparing what immigrants pay in taxes and contribute economically to their use of public benefits.

The allegations of fraud are suspiciously baseless. Where one might expect the Department of Justice to point to a spike in prosecutions of fraud or misrepresentation, none exists. In fact, just a handful of immigrants are prosecuted each year for benefits fraud. Without evidence to bolster the administration’s claims about public-benefits usage or fraud, the entire motivation for this rule remains transparently to punish and deter immigrants — more reason to table such a behemoth.

Learning from History: We Risk a Public Health Crisis

Assuming the rule is finalized as is, we can expect a public health crisis that results from large groups of immigrants and U.S. citizens forgoing benefits to avoid immigration consequences. In the aftermath of welfare reform in the late 1990s, noncitizens were confused about applying for benefits that they were legally allowed to access because of the complex changes to the law that included the new 5-year ban on legal immigrants receiving assistance. The problem became so drastic that the U.S. government had to issue guidance to clarify the law.

The agency then known as the Immigration and Naturalization service wrote that the “situation is becoming particularly acute with respect to the provision of emergency and other medical assistance, children’s immunizations, and basic nutrition programs, as well as the treatment of communicable diseases. Immigrants’ fear of obtaining these necessary medical and other benefits are not only causing them considerable harm, but are also jeopardizing the general public.”

In this case, the underlying changes are much more sweeping. Both the direct effect of immigrants passing up benefits that are newly subject to restrictions and the indirect effect of immigrants avoiding unrestricted programs out of confusion will be larger — and both exacerbated by the increasing lack of trust between immigrant communities and the Trump administration. Families will need to make an impossible decision: access benefits that they are legally entitled to use or preserve their lawful immigration status.

The demographic hit hardest will be children and pregnant women. There exists an enormous peer-reviewed literature on the importance and benefit of ensuring that pregnant women and children receive adequate health care and nutritional food; a reduction in access to either will without question trigger short and long-term negative effects that can undermine outcomes in health, education, and employment for years to come.

What Should Reform Look Like?

There are options for the administration to scrap the rule and replace it with something that improves governance, enhances our immigration system, and respects the rule of law. First, if immigrants are committing fraud to acquire public benefits, we should be prosecuting them for it.

Second, if the administration believes the five-year ban on welfare for legal immigrants is ineffective, or the suite of potential benefits for both immigrants and U.S. citizens is too broad, then it should ask Congress to debate and reform the system. It’s been more than 20 years since the 1996 welfare reform bill reorganized the U.S. social safety net. Let’s have that conversation again.

Trying to cram large-scale immigration reform through the administrative rule-making process under the guise of welfare reform is the wrong way to go about such drastic changes. If we are talking about wholesale changes to welfare provisions and upending precedent, then it’s time for Congress to get involved and address the full welfare system. And for a nation that has struggled to pass meaningful immigration reform for decades, this new rule gives enormous power to administrative agencies while circumventing Congress.

This rule accomplishes immigration goals the administration has championed but struggled to pass through Congress, and the roundabout mechanism being used to accomplish them is a slap in the face towards regular order and the process by which the American people have a voice in such governing decisions.

Self-sufficiency Does Not Require Cruelty:

The United States can enforce immigration laws and ensure self-sufficiency without cruelty. There are reasonable, middle-of-the-road solutions that ensure immigrants aren’t living on the taxpayers’ dime while making sure expectant mothers don’t ever have to decide between going to the doctor and keeping their lawful immigration status. The United States can have an immigration system that seeks newcomers who can support themselves on their own and still offer those newcomers a social safety net for when challenging circumstances arise — because hard times fall on everyone at some point in life. These two systems are not mutually exclusive.

For the health of families, respect for the rule of law, and the good of the economy, the public charge rule should not be implemented.