Congress can and should stop Trump’s plan to banish more immigrants

Unless Congress intervenes, the Department of Homeland Security (DHS) is preparing to cause a massive disruption to current U.S. immigration policy in the guise of protecting the American taxpayer, according to a newly leaked draft regulation.  

Under current law, the U.S. government reserves the right to deport or deny admission to lawful immigrants who are, or are at of risk becoming, a “public charge.”

Historically, a public charge refers to a noncitizen who is “primarily dependent” on programs like cash assistance or long-term care for subsistence.

DHS plans to issue new regulations expanding the definition of public charge to include non-citizens who are receiving, or likely eligible to receive, one of any number of means-tested public benefits.

Although the regulation primarily purports to address individuals trying to come to the United States or become U.S. citizens, the guidance will likely guide deportability standards (reasons someone can be kicked out) as well.

DHS spokesman Tyler Houlton asserts that the administration is concerned about taxpayer dollars, but that is a difficult proposition to swallow.

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 non-citizens 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.

According to our analysis, the new proposal would expose as many as 1.9 million legal resident immigrants to deportation risk when they try to become U.S. citizens, merely for having accessed Medicaid or Supplemental Nutrition Assistance Program (SNAP) within the five year window under one of the exemptions mentioned below.

If anything, past administrations have been more worried about immigrants declining important public benefits for which they’re eligible.

Following the enactment of the five-year waiting period for public benefits, for example, U.S. regulators issued clarifying guidance to put non-citizen’s anxieties at ease, lest they avoid walking into a public hospital for fear of violating the law.

There are also some exceptions to the five-year ban, added over the years to address unique state and local needs.

Following the reauthorization of the Children’s Health Insurance Program (CHIP) in 2009, for example, Congress decided to give states the option of providing temporary Medicaid coverage to non-citizen pregnant women and children, regardless of their date of entry. As of 2016, the average cost of non-citizens in Medicaid remains far below the cost for natives.

A similar exception was made in SNAP for immigrant households with children under the age of 18, and for individuals with 40 qualifying quarters (10 years) of work history.

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.

However the new definition of public charge will be applied, we can be certain that its impact will fall disproportionately on women and children. Even benefits to U.S. citizen children would be threatened — if they are the children of immigrants.

Across 20 years and four administrations, it has been the position of the U.S. government that any benefit used for determining a public charge must be considered in connection with the program’s broader goals.

This is because educational, nutritional, 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. Rather, provision of these temporary services are often essential to helping low-income families become self-sufficient.

Immigrants, acting legally and in good faith, already feel enormous anxiety and uncertainty living under this administration. Fortunately, this is a clear case where Congress can act, and should act given their legislative prerogative.

By codifying a more complete definition of public charge into law, lawmakers can preempt the Trump administration’s overreach  before it leaves draft form, and we’re forced to amend the Statue of Liberty inscription to say, “Give me your tired, your poor, your huddled masses…” so that they may be sent back from whence they came.

Kristie De Peña is the director of immigration and senior counsel with the Niskanen Center. Samuel Hammond is the poverty and welfare analyst for the Niskanen Center.