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 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 Illinois 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 Seventh 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.

The Seventh Circuit affirmed the district court’s order issuing a preliminary injunction, concluding that DHS’s interpretation of the term “public charge” in the INA does not constitute a “permissible construction of the statute” and that the rule was likely “arbitrary and capricious” in violation of the APA.

According to the Seventh Circuit, “[t]here is a floor inherent in the words ‘public charge,’ backed up by the weight of history.”  Classifying someone as a public charge therefore “requires a degree of dependence that goes beyond temporary receipt of supplemental in-kind benefits.”  Furthermore, in assessing whether the rule is arbitrary and capricious, the Seventh Circuit emphasized that the rule has several serious flaws, including that DHS “incorporated into the term ‘public charge’ an understanding of self-sufficiency that has no basis in the statute it supposedly interprets.”  Accordingly, the Seventh Circuit held that the district court did not abuse its discretion or otherwise err in issuing the preliminary injunction barring the rule from taking effect in Illinois.