The NCSL Blog


By Lisa Soronen

In Department of Homeland Security v. New York the U.S. Supreme Court will decide whether the Trump administration’s “public charge” definition violates the Immigration and Nationality Act (INA) or is arbitrary and capricious under the Administrative Procedures Act (APA).

A woman holds a child in a line snaking around the block outside a U.S. immigration office on Jan. 31, 2019, in San Francisco. Eric Risberg / AP fileOne of the factors relevant to whether a non-citizen may become a lawful permanent resident is whether he or she is likely to become a “public charge.” This term isn’t defined in the INA. Since 1999, federal rules considered four “cash” public benefits: Supplemental Security Income, Temporary Assistance for Needy Families, state and local cash assistance programs, and long-term institutionalization for medical care, including Medicaid, not receipt of Medicaid.

A 2019 final rule added “non-cash” benefits used for more than 12 months in any 36-month period including Medicaid, food stamps, Section 8 housing voucher and rental assistance, and public housing. Receipt of two benefits in a month counts as two months in the 12-month limit. The 2019 rule did add a lot of exemptions such as emergency health, school meals, CHIP, WIC, and programs entirely funded by state and local government.

Three states, New York City, and a number of nonprofits sued the Department of Homeland Security (DHS) arguing the definition violates the INA is arbitrary and capricious under the APA. The 2nd Circuit affirmed the federal district court’s preliminary ruling against DHS.

Regarding the INA, the 2nd Circuit concluded Congress ratified the “prevailing administrative and judicial interpretation” of the term public charge to mean a non-citizen who can’t earn a livelihood, lacks sufficient funds to support himself or herself, and has no one else to support him or her. The problem with the 2019 public charge rule, according to the Second Circuit, is it “categorically renders non-citizens public charges . . . if they are likely to access any quantity of the enumerated benefits for a limited number of months.”

The DHS likewise argued that it wasn’t arbitrary and capricious to change the definition of public charge because it was attempting to further Congressional intent that non-citizens be self-sufficient. The 2nd Circuit rejected this argument noting, “Congress's vision of self-sufficiency does not anticipate abstention from all benefits use.” Had Congress thought that any benefits use was incompatible with self-sufficiency, it could have said so, either by making non-citizens ineligible for all such benefits or by making those who did receive them inadmissible. But it did not.”

Finally, the DHS argued that adding non-cash benefits to the definition of public charge wasn’t arbitrary and capricious because non-cash benefits “bear directly on self-sufficiency.” The 2nd Circuit opined the DHS failed to offer “any factual basis” for its assertion that “non-citizens using these programs would be unable to provide for their basic necessities without governmental support.” The lower court pointed out that programs like food stamps are open to households exceeding federal poverty guidelines, are supplemental, and are used by persons working for many of America’s largest corporations.

It is possible the Supreme Court won’t decide this case on the merits for two reasons. First, the DHS argues the plaintiffs’ interest in this case fall outside the “zone of interests” of the INA because they are seeking to “facilitate greater use of public benefits by non-citizens,” which according to the DHS is “inconsistent with the purposes of the public charge ground.”

The 2nd Circuit concluded the DHS’s argument “mischaracterizes both the purpose of the public charge statute and the Plaintiffs’ interests.” According to the 2nd Circuit: “Congress enacted the public charge ground to refuse admission to non-citizens who will likely be unable to support themselves in the United States, which is not tantamount to ensuring that non-citizens do not access any public benefits.” The Second Circuit characterized the interest of the states to be protecting “the economic benefits that result from healthy, productive, and engaged immigrant communities.”

This case, which won’t be heard until next October, could be moot if the Biden administration is able to rescind the 2019 rule before the court decides this case.

Lisa Soronen is executive director of the State and Local Legal Center and a regular contributor to the NCSL Blog on judicial issues.



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This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.