Supreme Court lets Trump public charge rule take effect

The Supreme Court voted last week to let a Trump administration rule take effect that will punish millions of legal immigrants if they use public benefits. If the rule survives challenges that are still being heard in lower courts, it will severely restrict the number of legal immigrants.

The 837-page final rule was published in October, and covered by Affordable Housing Online.

The rule changes how officials determine if a legal immigrant is likely to become a “public charge.” For more than 100 years, this has meant that a person depends almost completely on public resources. Before the rule change, only people who received more than half their income from cash welfare benefits—like Temporary Assistance for Needy Families (TANF)—were considered public charges. Also included as public charges were people living in long-term care institutions.

Under the new rule, an immigrant will be considered a public charge if one or more public benefits are received for more than 12 months in the aggregate within any 36-month period. Under this standard, someone who has a short-term emergency and needs housing assistance or food stamps for a few months could risk their immigration status or deportation.

There are a large number of benefits that will now count against immigrant applicants for visas or permanent legal status (commonly referred to as a “green card”). These include any federal, state or local cash benefits like TANF, which is similar to the old practice. However, assistance for food, housing and medical needs will now also count against immigrant applicants. Programs that will count towards public charge determinations include the Supplemental Nutrition Assistance Program (SNAP), formerly known as food stamps, and Medicaid. 

Immigrants receiving housing assistance from a number of programs will also be penalized under the new public charge rule. These programs include Section 8 Housing Choice Vouchers, Section 8 Project-Based Rental Assistance and HUD Public Housing.

Visa and green card applicants will also have to meet other tests. They must have an income of at least 250% of the poverty guideline, or about $64,000 a year. There is also a credit score threshold. Applicants must also have private health insurance and speak English well.

The laws governing most public benefit programs bar undocumented immigrants, but many allow legal immigrants to participate. With the new rule, legal immigrants can be penalized for using services allowed to them under federal, state and local law.

The rule was supposed to take effect last October, but several states and organizations sued to halt it.Several federal District judges issued nationwide injunctions that put the new rule on hold while the cases were being heard and appealed. Appeals courts lifted all of the nationwide injunctions except for one in New York. The Supreme Court decision lifted the New York hold on the rule.

The Supreme Court split 5–4 between the conservative and liberal justices to let the rule take effect. They did not provide the reasoning for the decision, which is common in these reviews. However, Justice Neil Gorsuch wrote a supporting opinion about one aspect of the case, joined by Justice Clarence Thomas. He made a point of calling out the district courts for issuing nationwide orders, saying that it generally exceeds their authority. Justice Gorsuch wrote that, "The real problem here is the increasingly common practice of trial courts ordering relief that transcends the cases before them.”

The Supreme Court decision only applies to the nationwide injunctions. It is not a ruling on whether the rule is unconstitutional. It just means that the rule can go into effect while the lower court challenges proceed. Two District Court injunctions were already lifted by the 2nd Circuit Court of Appeals, which is still hearing one of the challenges. The Supreme Court’s vote specifically lifted the nationwide injunction sought by New York state. The Supreme Court decision leaves in place a statewide injunction in Illinois, which a federal appeals court upheld earlier.

Where does this decision leave us now? The case must still move through the appeals courts. They will issue rulings on whether the public charge rule is discriminatory or unconstitutional. If the appeals courts strike down the rule, the Trump administration can then take it back to the Supreme Court for a final ruling on the issue.

Meanwhile, the immigrant community will be less likely to use critical services even if they are eligible. This not only endangers immigrant families, but also public health and safety. These are the reasons Congress originally made legal immigrants eligible for many public assistance programs. We are a nation of immigrants from many lands and backgrounds, not just wealthy ones.