On Monday, the Supreme Court lifted a lower-court stay on a Trump Administration rule that will deny permanent-resident status to legal immigrants who are deemed likely to become “public charges,” because they have in the past—or may in the future—receive public assistance, such as Medicaid or Social Security supplemental income. The rule has been called a humanitarian catastrophe, an act enabling racist and classist cruelty, and a throwback to the darker days of rejecting the neediest immigrants, be they Irish, Jewish, queer—or nonwhite. It is all of those things, but it is not, contrary to many comments, a drastic change in immigration policy. Like much that is Trumpian, the new rules, and the Supreme Court order allowing them to go forward, build logically on the last few decades of the American political conversation on immigration, race, and class.
In August of last year, Ken Cuccinelli, then the acting director of U.S. Citizenship and Immigration Services, quipped in an NPR interview that the guiding principle of American immigration policy is “give me your tired, your poor who can stand on their own two feet and who will not become a public charge.” He was telling the truth. U.S. policy has always hewed closer to his rendering than to the original Emma Lazarus poem that adorns the pedestal of the Statue of Liberty. The “public charge” exclusion in immigration law goes back to the middle of the nineteenth century, and the underlying fear that newcomers will take what is rightly “ours” predates the policy by centuries.
The immediate precursor of the Trump Administration rule is the Personal Responsibility and Work Opportunity Reconciliation Act, the welfare-reform law signed by Bill Clinton, in 1996. Clinton had run on the promise to “end welfare as we have come to know it,” and he did. On its way through Congress, the reform package acquired provisions that effectively threw most noncitizens, present and future, off most federally funded public-assistance programs. Clinton opposed these amendments. In his speech heralding the passage of welfare reform, he said:
These immigrant families with children who fall on hard times through no fault of their own—for example, because they face the same risks the rest of us do from accidents, from criminal assaults, from serious illnesses—they should be eligible for medical and other help when they need it.
Then Clinton signed the bill into law. Of course he did: it was his signature legislative achievement, which had taken years to craft and pass. The fear of spending too much money on immigrants, meanwhile, had become a matter of bipartisan consensus. (In the years leading up to welfare reform, California residents voted for a bill that would strip noncitizens of public benefits.) In the end, most of the money that the Treasury actually saved on welfare reform came from cutting benefits to noncitizens.
The thinking that underpinned the anti-immigrant amendments was fundamentally indistinguishable from the thinking that drove welfare reform in general: that undeserving people would somehow take advantage of the system, getting something for nothing. The spectre of the “welfare queen” haunted America. Viewed through the prism of this fear, immigrants are the least deserving people of all, because they haven’t paid their imaginary dues.
One could point out that noncitizens pay taxes. (Notably, many noncitizens pay Social Security taxes even though they may never attain the status that would entitle them to benefits.) But arguing about taxes misses the point. The basic idea behind the welfare state is that it’s best for a society when all its members lead lives of dignity. Not only those who have paid taxes, not only those who have worked, want to work, or will work, not only those who were born here, but all people who inhabit this wealthy land ought to have a roof over their heads and food on the table, have basic medical care, and be free of fear that they will not have any of these things tomorrow. Precisely because this is the foundational principle of a welfare state, in most welfare states noncitizens are eligible for public assistance, and, indeed, public assistance is seen as an essential element of integrating immigrants into society.
After welfare reform became law, the number of noncitizens receiving public assistance decreased precipitously—more drastically than the law required, in fact. Many people who were still eligible, such as citizen children of noncitizens, stopped receiving benefits, not because they were thrown off the rolls but because they stopped seeking the help. Some of the provisions of the law, such as those stripping benefits from people who were already in the country and receiving aid, were never enforced, but people complied with them anyway. Scholars called this a chilling effect: immigrants, fearful of repercussions, went into the shadows.
Of course they did. Another of Clinton’s signature legislative achievements was the Illegal Immigration Reform and Immigrant Responsibility Act (I.I.R.I.R.A.), which created the framework for the mass deportations of immigrants who broke the law in the United States. The law was rooted in thinking that we have now normalized: that noncitizens and citizens should be punished differently for the same crimes—citizens by incarceration, fines, and community service, and noncitizens by removal, often in addition to the standard penalty a citizen would have received. It also reified the image of immigrants as criminals, and it laid the groundwork for mass deportations, for which the Obama Administration, which removed hundreds of thousands of people a year, still holds the record. In addition, the I.I.R.I.R.A. mandated the construction of a physical barrier on parts of the southern border, laying the literal foundation for Trump’s wall. The I.I.R.I.R.A. became law the same year as welfare reform, as did the Antiterrorism and Effective Death Penalty Act, which created expedited procedures for deporting “alien terrorists.” This was five years before 9/11, and two decades before Trump conjured the image of immigrants as terrorists in his 2016 campaign.
Trump’s spin on these long-standing policies and fears takes them to an entirely new level of hatred and cruelty. But, to reverse them, we will have to do much more than return to the way things were before Trumpism.
