The Immigration and Nationality Act (INA) provides that an individual may be excluded or removed from the United States if he or she is likely to become a “public charge.”  Throughout American history, the term “public charge” has been understood to refer to those who receive cash benefits from the government for subsistence or who experience long-term institutionalization.  In August 2019, the Department of Homeland Security promulgated a new rule redefining that term.  Under the Trump Administration’s rule, an individual may be deemed inadmissible to the United States or may be denied an adjustment of immigration status based solely on the acceptance of non-cash public benefits, including assistance through the Supplemental Nutrition Assistance Program (SNAP), Section 8 Housing Assistance, Section 8 Project-Based Rental Assistance, Medicaid (with some exceptions), and certain other forms of subsidized housing.  Several nonprofit organizations, cities, counties, and states challenged this rule in various federal district courts, and in October 2019, the District Court for the Northern District of California concluded that the rule is likely unlawful and issued a preliminary injunction to keep it from going into effect.  In January 2020, CAC filed an amici curiae brief in the Ninth Circuit on behalf of legal historians urging the court to affirm the district court’s judgment.

Our brief made two main points.  First, we argued that the receipt, or likely receipt, of non-cash benefits has never been, standing alone, sufficient to make an individual a “public charge” subject to exclusion or removal from the country.  Public charge laws, or “poor laws,” in colonial and early America did not uniformly mandate that poor individuals be removed; in fact, they routinely provided financial and other support for impoverished immigrants.  In 1882, Congress passed the first general Immigration Act containing a “public charge” provision, but this law and other federal immigration laws that followed were not designed to significantly limit immigration into the country, and they consistently did not render immigrants excludable or removable based solely on the receipt of non-cash benefits.  Every federal law containing a public charge provision and every agency interpretation of such a law prior to 2019 has continued to rely on the well-established historical definition of “public charge.”  Second, we argued that, given this history, DHS’s new rule redefining “public charge” violates the Administrative Procedure Act (APA).  Congress necessarily incorporated the longstanding definition of the term “public charge” into the INA’s public charge provision, so DHS’s new rule significantly expanding that term to apply to those who receive only non-cash benefits is not “in accordance with law” and violates the APA.

Reviewing multiple district court decisions together, the U.S. Court of Appeals for the Ninth Circuit affirmed two preliminary injunctions barring the implementation of DHS’s new rule.  In doing so, the court limited application of one of those injunctions to the states that had brought that suit.

Echoing our brief, the court determined that the term “public charge” has historically meant someone who “depend[s] on public assistance for survival” and has never included “persons likely to make short-term use of in-kind benefits.”  The court also found that Congress repeatedly reenacted the public charge provision against the backdrop of this well-established historical definition and that this “[h]istory is a strong pillar supporting the plaintiffs’ case” that the new rule is impermissible.  As a result, the court concluded that plaintiffs are likely to succeed in showing that DHS’s new rule relies on an unreasonable interpretation of “public charge.”

Finally, the court concluded that because DHS’s new rule reversed its prior policy without taking into account the reversal’s potentially adverse effects on public welfare, the new rule is arbitrary and capricious under the APA.