In 1907, Congress enacted legislation to deny entry into the U.S. of “persons likely to become a public charge.” The idea was to prevent immigration of people who would be drawing upon public assistance.

Jim Jones

Jim Jones

The “public charge” legislation is still the law of the land and has worked fairly well to conserve public resources. At the same time, America has admitted millions of immigrants who have contributed mightily to building this great country. The Trump administration is now proposing to substantially expand the definition of what constitutes a public charge so as to clamp down on legal immigration into the U.S.

Since 1999, potential immigrants have had to show that they are not likely to need longterm institutional care or become “primarily dependent” on “public cash assistance” programs. In fiscal year 2017, the State Department found 3,237 immigrant visa applicants to be ineligible on public charge grounds — slightly less than one percent of the 332,003 ineligibility findings that year.

Under a new rule proposed by the Department of Homeland Security, the government would deny green cards and visas, not on whether people have ever used any public benefit but, on whether it is possible that they might at some time in the future. The rule would expand the programs considered to be public benefits to food stamps, Medicaid, housing assistance, and Medicare Part D subsidies.

In the past, the public charge exclusion was applied to those who used the benefits and were not able to support themselves without the benefits. The new rule would deny legal status to persons who might at some time legally apply for a little help to get through a rough spot. The rule does not take into account the extent to which an immigrant family is supporting itself.

It should be noted that those who immigrate to this country are people much like our ancestors — driven by a desire to make good and provide a better life for their children. They are not slackers or welfare bums. Our recently departed president, George H.W. Bush, referred to immigrants from south of the border as, “good people, strong people.” Many of them are more than willing to do the back-breaking work that home-grown Americans refuse to do.

The new public charge rule is intended to deny legal status to many more immigrants — people who could fill some of the many jobs in Idaho and across the country that are currently begging for reliable help.

And, it should not be forgotten that immigrants set up businesses at twice the rate of U.S. citizens. They build America and create jobs, like Hamdi Ulukaya of Chobani and Sanjay Mehrotra of Micron.

The new rule essentially amounts to administrative legislating. It is the responsibility of Congress to set the rules for immigration, not unelected bureaucrats. The current understanding of “public charge” has been in effect since 1999 and been observed by congresses and presidents of both parties. If there is need for a change, let Congress do it.

The proposed rule will lead to arbitrary classification of those seeking entry into our country. The fate of applicants will be in the hands of bureaucrats who will have to guess whether the people will ever need even a short-term bit of help with food or medical care expenses at some time in the future. If so, they are out of here. To reduce the chances of arbitrary action, it might help if the president would furnish crystal balls to the immigration screeners.

Jim Jones is the former chief justice of the Idaho Supreme Court.

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