On Oct. 29, the Supreme Court agreed to rule on whether 14 states have standing to challenge President Biden‘s decision to rescind President Trump‘s regulation barring immigration to anyone who might end up on the public assistance rolls, known as the “public charge” rule.

The California-based U.S. Court of Appeals for the 9th Circuit ruled the states did not have standing, but that decision was appealed, and the high court decided to weigh in. They probably will hear oral arguments late this month.

When the Biden administration announced that it would no longer enforce the Trump administration’s public charge regulations on March 9, 2021, it stated that the regulations were unfair to individuals who “access health benefits and other government services available to them” and “was not in keeping with our nation’s values.”

It may be unfair to immigrants who rely on public benefits, but I don’t think it violates our nation’s values. To the contrary, the history of the public charge provision indicates that our country has never wanted to admit immigrants who are likely to need financial assistance.

The provision

The public charge provision states that, “Any alien who … at the time of application for a visa, or … at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible.”

The provision states further that in determining whether an alien is inadmissible because he is likely to become a public charge, consideration should be given to his (I) age; (II) health; (III) family status; (IV) assets, resources, and financial status; (V) education and skills; and any affidavit of support — a contract that someone, usually a relative, signs agreeing to support the prospective immigrant if he becomes unable to support himself.

Making the determination

Under the prior DHS regulations, which had been in effect since 1999, only cash government benefits that the alien has or will receive were considered in determining whether he is likely to become a public charge. Consideration wasn’t given to non-cash benefits such as the Supplemental Nutrition Assistance Program (SNAP), or food stamps; Medicaid; or housing subsidies. Emphasis was placed on whether he would be “primarily dependent on the government for subsistence.”


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