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One of the Trump administration’s most dramatic efforts to restructure long-established social welfare policy was a rule, issued in 2019 in the face of massive opposition,1 that fundamentally altered the standard used to determine whether legal immigrants who apply for permanent residency would be allowed to stay as “green card” holders or instead be considered public charges vulnerable to deportation. Certain legal immigrants, such as refugees, are exempt from the public charge test, but many others are not and must effectively prove their community worth in order to become permanent residents. Today, concern over whether an immigrant will be labeled a public charge hangs over millions of households, especially those that are mixed-status, such as households that include both immigrants and US-born family members. In 2018, more than 25% of all children under age 17 living in the United States had at least one foreign-born parent.2 The Biden administration has begun the task of reversing its predecessor’s policy, but the consequences have already been devastating, and the nation faces a long road back.
The public charge concept originated in the poor laws that governed colonial America, designating who was self-sufficient and therefore eligible to reside in a particular town. The test ultimately became part of the foundation of the nation’s first federal immigration laws and has remained a staple of immigration law ever since. As historians have pointed out,3 from its earliest days, the test focused exclusively on immigrants’ ability to support themselves and not become reliant on government cash assistance. Application of the test involved judgment of whether the applicant had the means for current and future self-support through work or family. This test, whose core measurement was having tangible subsistence support, predated the rise of 20th-century national policies whose aim was to use government to assure the types of supplemental supports now considered simply part of modern life: affordable health care, affordable housing, and access to good nutrition. Today, we all receive help from the government, whether it comes in the form of Medicaid or tax-favored employee health benefits, rental assistance or the home mortgage deduction. This basic distinction between what all people need versus the ability to provide basic support for oneself endured throughout the 20th century. It even survived congressional efforts in the 1990s to stiffen the public charge determination process legislatively and curb immigrant eligibility for certain benefits in the first five years following entry into the United States. By 2018, when the Trump administration began its effort to undo more than a century of social welfare history, the public charge determination was limited to a history of dependence on either cash welfare assistance or long-term institutionalization at government expense.
The Trump rule turned the entire meaning of public charge, along with the determination process, on its head. Under the rule, most forms of Medicaid, public housing assistance, and Supplemental Nutrition Assistance Program (SNAP) benefits became measures of government dependence. Moreover, the rule’s Orwellian public charge determination test (deemed a “wealth test” by many) turned on whether immigrants had used health, housing, and food benefits for which they were eligible for 12 out of the preceding 36 months, with use measured cumulatively. Thus, for example, an immigrant would be considered a public charge if a serious job injury necessitated her enrollment in Medicaid for health care, along with SNAP to help feed her children, for seven months until she could resume full-time work. Her enrollment in both programs would equal 14 benefit months, thereby exposing her to a public charge determination. Indeed, the rule specified that simply helping one’s seriously disabled citizen child apply for Supplemental Security Income benefits would be considered evidence of public charge status. Moreover, under the express terms of the rule, having a child with a disability, or a limited education, or a low-wage job, or a chronic health condition—experienced by millions of Americans—were to be considered “highly negative” factors in the determination process.
By late 2020, the federal courts had enjoined the rule nationwide, concluding that the rule had no basis in law and that, in its adoption, the Trump administration had completely disregarded voluminous evidence of the collateral damage it would inflict on immigrants, who would be led to believe that use of government services would foreclose green card eligibility. However, judicial intervention came only after the Supreme Court, early in 2020, had permitted the rule to take effect while litigation continued. For this reason, its full impact was in evidence during the worst public health crisis the world had seen in more than a century.
The Biden administration has proposed to return the public charge concept to its historic meaning,4 limiting the test to primary dependence on cash welfare or long-term institutionalization at government expense, and eliminating its predecessor’s immigrant “wealth test.” Most striking, perhaps, the proposed rule extensively summarized the results of chilling-effect research measuring the extent to which families avoided public health services altogether, including medical care, out of fear, and even as the communities in which they lived relied on them to continue to perform many of the essential jobs that kept life going during the pandemic. Once vaccines became available, the chilling effect’s implications worsened, given the vital importance of vaccine take-up to community health. According to the studies presented, in 2020, almost 1 in 7 adults in immigrant families reported avoiding government programs out of fear of the ramifications. Avoidance even reached the citizen children of immigrants. One survey of community health centers, which serve large numbers of immigrants, reported that 1 in 2 health centers experienced a refusal by families to enroll in Medicaid, while 2 in 5 experienced refusal by families to enroll their children.5
Assuming that the Biden rule is allowed to take effect (immigrant advocates are bracing for a major attack by anti-immigrant states and interest groups), the process of undoing the damage done will have only begun. Nothing is more important to health equity for immigrants than welcoming them back into the government health, housing, and nutrition services for which they are eligible. But overcoming fear and regaining trust presents an enormous challenge, especially given the anti-immigrant fervor that grips so many US communities. Indeed, the problem of how to go about the job of returning basic decency to national immigration policy is an immense one, such that as part of its proposed rule, the Biden administration has sought public input into how the government can best reach out to the affected population to explain this 180-degree turn in public policy. Of course, given the current state of the courts, it may be that the final rule never will be permitted to take effect. Here’s hoping that the nation can at least begin the task of atoning for what transpired in 2019.
Sara Rosenbaum is the Harold and Jane Hirsh Professor of Health Law and Policy and founding chair of the Department of Health Policy at the George Washington University School of Public Health and Health Services. She also holds professorships in the Schools of Law and Medicine and Health Sciences. A graduate of Wesleyan University and Boston University Law School, Rosenbaum has devoted her career to issues of health justice for populations who are medically underserved as a result of race, poverty, disability, or cultural exclusion. Between 1993 and 1994, Rosenbaum worked for President Clinton, where she directed the drafting of the Health Security Act and designed the Vaccines for Children program, which today provides near-universal immunization coverage to low-income and medically underserved children. Rosenbaum is the leading author of Law and the American Health Care System (Foundation Press, 2012) and has received many national awards for her work in public health policy. She is past chair of AcademyHealth and a member of the Institute of Medicine. Rosenbaum also has served on the CDC Director’s Advisory Committee and as a Commissioner on the Congressional Medicaid and CHIP Payment and Access Commission (MACPAC), which she chaired from January 2016 through the expiration of her term in April, 2017.
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