Biden Administration Actions on Public Charge Rules Help Restore Hope for Immigrant Families

Student with face mask giving a thumbs up sign

This week brought some much-needed good news on public charge, which has immigration advocates singing Prince’s classic hit, “1999,” in homage to a return to the longstanding public charge rules also known as the 1999 field guidance. The good news is certainly worthy of a princely celebration, but some may be wondering how we got here and just how long we expect the party to last. Here’s the scoop.

Readers of SayAhhh! are familiar with the Trump Administration’s damaging changes to public charge regulations that essentially created a wealth test for immigrants in the US seeking lawful permanent status or a green card. The Department of Homeland Security’s (DHS) proposed rule was widely criticized in public comments as unlawful and cruel, but DHS finalized it anyway. Several lawsuits popped up almost immediately, brought by states, community groups, and individuals. The twists and turns through the litigation process have been particularly hard to follow, with preliminary injunctions stopping the rule from going into effect nationwide, then only in select states, then not at all when the Supreme Court (SCOTUS) overturned the remaining preliminary injunctions in January 2020.

As a result, the DHS public charge rule went into effect on February 24, 2020 and has continued to be in effect until this week.

On Tuesday, March 9, the Department of Justice (DOJ) withdrew its appeals in the pending public charge cases because pursuant to President Biden’s Executive Order, DHS determined that continuing to defend the Trump-era rule is “neither in the public interest nor an efficient use of limited government resources” and therefore DOJ will “no longer pursue appellate review of judicial decisions invalidating or enjoining enforcement.” This decision triggered the federal courts to dismiss the government’s appeals in all of the related cases.

The impact of dismissing the appeal in the Northern District of Illinois was especially consequential. In that case, the court had previously ruled on the merits of the case, finding that the Trump-era rule violated the Administrative Procedures Act (APA) and issuing an order to vacate the rule nationwide. (Note that many of the other cases did not have final rulings on the merits yet and any related rulings were preliminary in nature.) The Illinois vacatur was later stayed, pending appeal in the 7th Circuit. Now that there is no longer an appeal pending, the vacatur is in effect and the Trump-era public charge rule is not. I’ll try to paraphrase without all of the legal lingo –

  • The decision in the Illinois case was a final decision on the issues raised and not a preliminary decision.
  • In the final Illinois decision, the judge canceled the Trump-era rule because it violated the APA.
  • This cancelation was on pause while awaiting the outcome of the review of a higher court, so the Trump-era rule was allowed to go into effect.
  • The higher court is no longer reviewing the lower court’s decision because the Biden DHS and DOJ stopped defending the Trump-era rule.
  • Therefore, the Trump-era rule is canceled, nationwide, because it is unlawful.

(If you’ve been following public charge news closely, you also know that in February, SCOTUS agreed to hear one of the public charge cases from the 2nd circuit. Thankfully the case has been dismissed, following a joint request from DOJ and the other parties to the case.)

As a result of all the activity in the courts this week, the Trump-era public charge rule is permanently blocked. DHS issued a statement explaining that the 1999 interim field guidance, which outlined the longstanding public charge guidance before the new rule came about, will now apply. Under the 1999 field guidance, an individual may only be considered to be or likely to become a public charge if (s)he is primarily dependent on cash assistance or institutional long-term care. This much narrower definition of public charge means that families can freely use the public benefit programs for which they are eligible without fear of immigration-related consequences down the road.

Much of the harmful impact of the Trump-era public charge rule has stemmed from what is known as the chilling effect – discouraging immigrant families from accessing benefits out of fear, even if the rule didn’t apply to them or to the avoided programs. For example, even while the Trump-era rules were in effect, immigrant advocates struggled to get the message out that parents should continue to enroll their children in Medicaid and CHIP or that new moms should continue to access WIC benefits. The climate of fear created by the Trump Administration was intentional and effective at instilling fear in immigrant families.

But, President Biden committed to undoing the public charge rules during the presidential campaign, and his EO started the process to follow through on that commitment and restore hope to immigrant families.  This week we saw a very real outcome of that EO, with actions by DHS and DOJ that succeeded in permanently blocking the Trump-era rule. To be clear, there is more work to be done. The Biden Administration needs to remove the Trump-era rule from the books and replace it with regulations that are “consistent with our character as a Nation of opportunity and welcome.” The regulatory process will take months or even years to complete, but this week we have good reason to believe that President Biden will get it done.

Check the Protecting Immigrant Families campaign website for updated materials and the most up-to-date information on the public charge rules

Kelly Whitener is an Associate Professor of the Practice at the Georgetown University McCourt School of Public Policy’s Center for Children and Families.