NOI 44: The Supreme Court and Public Charge

Today on Nation of Immigrants we weigh in on the Supreme Court's recent decision, revoking the nationwide injunction against Trump's public charge rule.

Jacob Tingen: Well, hello and welcome again to Nation of Immigrants. We’re going to talk about public charge, and it’s something we’ve talked about before. We’ve discussed, when I first started this podcast, public charge was one of the first topics that we talked about. And each time I’ve talked about it, it’s been a popular issue. It’s probably because it impacts legal immigration in a big way. And so today we’re going to review a recent Supreme Court decision that came out on Monday. So we’re a little late getting to the topic, but it is vitally important and it’s something that I feel I need to talk about. So let’s do the intro and we’ll get back to public charge and what the Supreme Court actually had to say about it.

Announcer: You’re listening to Nation of Immigrants.

President Obama: America is a nation of immigrants.

Announcer: A podcast about U.S. immigration law with your host Jacob Tingen.

Jacob Tingen: Okay, so let’s talk public charge. Like I said in the past, we’ve talked about public charge and basically it’s this concept that’s existed for more than 100 years that people who come to the United States, we don’t want immigrants who will rely on government assistance for forever. It’s one of the grounds of inadmissibility if we believe that someone might become a public charge. There’s an episode of Nation of Immigrants where we talk about the different grounds of inadmissibility and I think I expressed then that I really just don’t like this grounds of inadmissibility. I think it’s sad that we live in a world where people can be denied entry to our country simply because they’re too poor and that is what’s happening, that is what this law allows, and this new rule or the way that it’s being carried about by the Trump Administration gives a lot of latitude and a lot of uncertainty for immigrants, a lot of latitude to immigration agents to make decisions about this issue.

Jacob Tingen: And so it’s just not entirely clear what’s going to happen except for in one aspect, we know that it is going to limit legal immigration. And we’ve talked about this from a lot of different angles that Trump and all of the people that support him tend to say, “Oh, well, I believe in legal immigration, of course legal immigration.” And yet when it comes down to this administration’s systematic changes and attacks on our current immigration system, a lot of them are geared towards limiting any kind of immigration, including legal immigration. And one of the things that I thought was interesting that I read here, and we’ll touch more on this in a bit, but it said that under the current public charge rule as it’s expressed, it says, according to the libertarian leaning Cato Institute, even a current U.S. resident immigrant who earns 200% of the poverty line and is 95% self-sufficient, could be denied a green card.

Jacob Tingen: And I think that’s something that we should reckon with. Why would that person be denied a green card under the public charge rule? If that’s the case, even accepting this rule as a good idea, that can’t be the intent, right? The way that public charge has generally been interpreted is that somebody, if it’s a family based petition, has the income to keep you out of poverty. But now the way it’s being defined is using a government benefit for more than a period of 12 months in the last three years and could include things such as signing up for healthcare insurance through the Obamacare health exchanges. So that kind of leads to conclusions and results. And of course we haven’t seen the rule implemented yet, but it definitely gives fodder to immigration agents to deny for what would otherwise be arbitrary reasons and that are under this rule, let’s face it, are arbitrary reasons.

Jacob Tingen: So I wanted to talk about commentary on this because there’s a procedural legal thing going on here that I don’t think a lot of the articles realize. When you hear a Supreme Court decision, you’re like, “Oh no, that’s final. That’s it. That’s the last leg.” This was not a final opinion of the Supreme court. They didn’t actually issue a full on opinion in support of the decision. It was a five to four decision. Apparently, Neil Gorsuch did pin a concurrence, but it didn’t have anything to do about public charge. It had to do with injunctions and how they’re issued and he takes issue with nationwide injunctions generally overriding, frankly the will of the people. Trump was elected president under our system and so that’s kind of what Neil Gorsuch was going at was that judges should be more careful or under more scrutiny when they issue something like a nationwide injunction.

Jacob Tingen: So let’s break apart what happened. We mentioned in the past on this podcast that a number of jurisdictions had implemented a nationwide injunction against this administration. Two of those decisions were appealed and then the appellate court revoked the injunction preventing this policy from going into place. Now, even from the beginning, it was just a temporary injunction. It could have been the result that at the end of litigation over this, that injunction would have been removed by the judges who made that decision in the first place. That injunction could very well have been removed by those judges after the case had gone through court and then it would have been implemented. So all that has happened is that the injunction has been removed.

Jacob Tingen: So the last one standing was in New York. That’s, I believe, the case that was appealed to the Supreme Court and the Supreme Court said, “Hey, look, ruling aside what we’re looking at is the appropriateness of a nationwide injunction, that one judge could override this administrative decision.” And so what the Supreme Court decided wasn’t whether or not public charge is a good idea. What they were deciding was whether or not a judge can invoke a nationwide injunction to prevent a bad rule from going into place. And it seems that they decided that no, judges don’t have the latitude to just make some kind of injunction on a nationwide basis to prevent even bad rules from going into place. And so it’s important to recognize that this case is still ongoing, that even though the injunction has been removed, there’s still litigation on this topic and, in fact, this rule might be revoked on a permanent basis by judges in the future on a nationwide basis. It could very well happen. And it may very well not.

Jacob Tingen: So my word to those of you who are listening is that this is not the end all and be all of this topic of public charge. What the Supreme Court decided about and its impact on public charge, of course, has to do with public charge and it will impact many lives, but that’s not what their decision was about. They weren’t debating the merits of the public charge rule itself. They were debating the injunction and decided that while there’s litigation on this topic, the rule should be allowed to be implemented. And that’s it. Now, of course there’s been more commentary on whether or not this is a good rule at all and I would be remiss if I didn’t cover, I think, some of the things that came up in one of these articles that I’m reading. Basically the article that I’m reading is on the Washington Examiner. It says, “Trump’s public charge immigration welfare rule was foolish to begin with,” and it goes on to get some legal procedural things wrong and then just some humanitarian things right, so we’re going to talk about it.

Jacob Tingen: So, yeah, one of the things about the rule is that it’s arbitrary, it’s broad, it’s very wide. It would give an immigration agent a lot of ammunition to deny petitions and those kinds of things. One of the critiques of this rule has been that it may very well limit, to a big extent, people who might otherwise legally immigrate to the United States. I think one of the valid criticisms of this kind of rule is that the tighter we make legal immigration, the more difficult we make legal immigration, the people who benefit are coyotes, people who encourage illegal immigration. Those are the people who this is a boon to. If we were really serious about trafficking, maybe we might look at who’s coming across our border and why, and then address that issue instead of just clamping down and saying, “No, everybody out.” But that’s part of a broader conversation.

Jacob Tingen: So, yeah, and that’s one thought that I brought up earlier is that even an immigrant who makes 200% above the poverty line and is 95% self-sufficient, might still be disqualified under our current public charge rule as envisioned by the Trump Administration and that seems to me like a bad idea. It says, “It’s hard to estimate the exact numbers, but a substantial decrease in legal immigration will result from implementing this rule. Some suspect it could result in hundreds of thousands fewer legal immigrants each year in a time of more job openings than job seekers record, low unemployment, and nine states with shrinking populations. Decreases in legal immigration are the last thing we need.” So that’s kind of where I land on this topic. I don’t think it makes sense in our nation’s booming economy, if that’s what it really is, if that’s what we really believe it to be, that we would clamp down on immigration. If anything, we’re at a time where we need growth and we need sustainable growth and immigration has always helped with that, has always been a part of our history and has always helped, frankly, our economy to grow.

Jacob Tingen: And then finally, here’s the last bit that I thought was good about this article. It mentions, “If we want to reduce immigrant reliance and welfare,” it says, a goal to which I’m sympathetic, right? “Even though it’s already true that 80% of immigrants do not receive welfare, we’d be better served by other means.” But I think that’s an interesting statistic, 80% of immigrants do not receive welfare. So how big is this problem really? And I know a lot of people are under the impression that, “Oh, immigrants receive all this welfare,” “anchor babies,” and they throw out terms like that. It’s true that many people do have kids born in the U.S., right? And then those kids who are U.S. citizens receive benefits. And so the argument I guess goes that sure, maybe the immigrant themselves doesn’t receive a government benefit, but the children do and so they’re still taking advantage of the system.

Jacob Tingen: I’m not an economist, but every conversation I’ve had with economists in the know on this topic or even just economist generally, and when I Googled and researched the topic, everybody seems to agree that immigration tends to be a net positive on our economy, not a drain, both legal and illegal immigration. So that’s just something for you to think about that this isn’t terrible stuff, we shouldn’t be afraid of people who want to come and work to make a living and contribute to our economy and to our society. So, that’s kind of the skinny on what really happened at the Supreme Court. It’s not the end of the road. That’s something that I wanted to communicate to everybody is that just because the injunction was revoked doesn’t mean that we’re stuck with this public charge rule forever. It’s the rule now. And for those of you who are represented and going through a legal immigration process now is probably a good time to talk to your lawyer about the public charge rule and whether and how it will impact your particular green card case.

Jacob Tingen: And those are conversations we look forward to having with our clients and with some of you if you do call us. And then finally, I just want to say thanks again for listening. It’s a new year. Nation of Immigrants has been successful and fun for me and I have enjoyed talking to you and hearing from you. I hope you come back to visit us often. Don’t forget to support the podcast on iTunes, YouTube, Facebook, Twitter, follow us all the way around. Visit me at where you can support the podcast by donating directly and again, we’re taking those funds and putting them towards the legal bills of immigrants. So thanks again for listening and that’s it for Nation of Immigrants.

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