The History Of 'Public Charge' Requirements In U.S. Immigration Law

Aug 13, 2019
Originally published on August 13, 2019 6:40 pm
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AILSA CHANG, HOST:

A bronze plaque at the Statue of Liberty reads, in part, give me your tired, your poor, your huddled masses yearning to breathe free.

MARY LOUISE KELLY, HOST:

Words from the 1883 poem by Emma Lazarus, "The New Colossus." Well, today, the acting head of U.S. Citizenship and Immigration Services offered a tweak to that poem.

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KEN CUCCINELLI: Give me your tired and your poor who can stand on their own two feet and who will not become a public charge.

KELLY: Ken Cuccinelli speaking today on NPR's Morning Edition.

CHANG: Cuccinelli was defending a new Trump administration rule, the so-called public charge rule that will make it harder for immigrants who have used safety net programs like Medicaid or food stamps to stay permanently in this country. He says even though the rule is new, it's based on a concept as old as Emma Lazarus' poem.

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CUCCINELLI: It's a privilege we've offered to people all around the world for the entire duration of our history. But that privilege has - starts with certain expectations. And for the last 140 years, among those expectations is that the people who will come here will not become a burden on the taxpayers and the government. And again, that doesn't seem like too much to ask as we open our doors currently to more than a million new people a year that they not become a burden on an already, frankly, overburdened and bankrupt welfare system.

KELLY: To gauge reaction to this definition of who gets to be a permanent U.S. resident, we went out to the southern tip of Manhattan to find people waiting in line to get on a boat and see the Statue of Liberty.

CHANG: We met Armando Blancas (ph) of California. He says he doesn't think newcomers should draw upon public benefits at all.

ARMANDO BLANCAS: You know, I was born here. My kids couldn't go to summer school or, you know, get free college and all that, you know, so, I mean, why do we have to pay for that?

CHANG: Josiah Folsom (ph) of Oregon says people who come to the U.S. should expect to work hard when they get here.

JOSIAH FOLSOM: And I feel like that's what the Statue of Liberty represents. You know, it's a land of opportunity. People come here to work to earn, you know, a new life. You know, new lives aren't just handed out. You have to work for it.

KELLY: Others saw this path from foreigner to American differently. Here's Arianna Imayan (ph) of nearby Long Island, N.Y.

ARIANNA IMAYAN: We're all immigrants, and I don't think that people should be discriminated against based on, like, their ethnicity or their pay grade or whatever. You work your way up here.

CHANG: Some thoughts there about whether immigrants should be allowed to stay here if they draw upon public benefits.

KELLY: Now let's dig deeper into the history of this public charge rule. And to do that, I am joined by Kunal Parker. He's an immigration historian and professor at the University of Miami School of Law.

Professor Parker, welcome.

KUNAL PARKER: Thank you for having me.

KELLY: So take us back to the 1880s when Congress passed the first U.S. general immigration law, as we heard Ken Cuccinelli saying there, it did include a public charge provision designed to keep out certain immigrants. What did it say?

PARKER: So the law that was passed in 1882 excluded from entry into the United States, quote, "any convict, lunatic, idiot or any person unable to take care of himself or herself without becoming a public charge." And that language has been a feature of federal immigration law ever since. But there's a lot more to be said about that, largely because the federal law itself built upon centuries of practice at the state and local level.

KELLY: So this was being handled at a local level by cities, by towns, but this was the first time that the federal government tried to take it on. Is that right?

PARKER: That is correct. Post-Civil War, the federal government monopolizes immigration restriction.

KELLY: And you mentioned this was post-Civil War. What was public sentiment in the 1880s toward immigrants?

PARKER: Public sentiment towards immigrants obviously varied depending on who you are.

KELLY: Sure. Then as now.

PARKER: Right. Then as now. Immigration largely at this point was from Northern and Western Europe. But it was beginning to consist increasingly of immigrations from Southern and Eastern Europe, as well as from Asia. And there was a lot more negative sentiment towards immigrants from the east and south of Europe and from Asia.

KELLY: A nativist sentiment we might refer to it as.

PARKER: Exactly.

KELLY: So did this law then sit there on the books for the next century or so, or has it been modified and changed over the years?

PARKER: So the law has been on the books, and it was also applied, right? But the point is that it was applied in ways that might be a little bit different from the ways in which Mr. Cuccinelli is thinking about it, which is that it is true that immigration officials would exclude people whom they thought were likely to be public charges. This usually involves checking whether an entering immigrant had cash or whether they were ill, you know, whether they looked like they would turn to assistance, right? But it's important to keep in mind that this was before the rise of the modern welfare states.

KELLY: You're saying the very way we think about what would count as a public charge has changed dramatically in all those years.

PARKER: Particularly if you think about what the proposed rule is going to target, it includes things like general welfare, food stamps, Medicaid, the earned income tax credit. None of this stuff was around then.

KELLY: So I want to focus us in on one particular year, 1996, because Ken Cuccinelli also referenced that year, and he referenced a law from that year in our interview with him this morning.

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CUCCINELLI: We implement - a 1996 law passed on a bipartisan basis, and the guidance that was put in place after that law passed has proven ineffective. And this rule will make that law effective.

KELLY: What is the 1996 law that he's talking about?

PARKER: So in 1996, Congress passed the Personal Responsibility and Work Opportunity Reconciliation Act which was a massive overhaul of the welfare system. Essentially, what the law provided was that most legal immigrants were going to be ineligible to receive a range of benefits for the first five years of U.S. residence. What Mr. Cuccinelli might not have mentioned - I'm not sure - is that many of those benefits were reinstated in 2002. Also what the new Trump rule is targeting is obviously things like Obamacare subsidies, which weren't in existence in 1996.

KELLY: Right. And to fact-check one other thing that Mr. Cuccinelli told us, he said most Americans get that this is the way this country has worked for the last 140 years, that people entering the U.S. should not enter and then become a burden on American taxpayers and the government. Is that historically accurate? Is that the way...

PARKER: No.

KELLY: ...Public opinion trended in the 19th century?

PARKER: No, it's not. And it's certainly not true of the way public sentiment has trended. And it turns out that most communities were entirely supportive of European immigrants receiving welfare. But it certainly - if his suggestion is that this is sort of universal in all times in all contexts, that I would disagree with.

KELLY: That's professor Kunal Parker of the University of Miami School of Law.

Thank you.

PARKER: Thank you. Transcript provided by NPR, Copyright NPR.