People of all political stripes are debating President Trump’s new proposed “public charge” rule, which would make it more difficult for immigrants living in the United States legally to obtain a green card if they use public benefits. None talk about the biggest problem of all: that the rule was necessary at all.
Congress passed a law decades ago establishing that potential immigrants likely to become a “public charge” should not be permitted to enter the country. That makes some sense: A new resident should be able to add to, not detract from, the existing community’s economic resources. The problem is that Congress did not do its job and clearly establish when an aspiring immigrant meets or fails that test.
It’s understandable why Congress shrank from the task. The modern state offers a complex array of monetary and non-monetary benefits that impact virtually anyone’s financial standing. It takes a lot of hard work to determine whether, for example, receiving food stamps while working part time — which millions of Americans, immigrant and native-born alike, do — makes one a “public charge” or “self-sufficient.” Multiply that by the hundreds of different situations possible, and you can see why Congress shirked.
That’s why the rule announced on Monday is 837 pages long. It needed to address all the thorny issues Congress avoided and makes a roomful of contentious value judgments along the way. No law of that size and scope would pass through Congress without vigorous public debate and scrutiny. Yet it now arrives nearly fully formed with no more time for public involvement and no opportunity for it to be amended or stopped if large segments of the public disagree with all or parts of it. Those who oppose it now have only one recourse: go to court.
This is a problem inherent in what conservative lawyers call “the administrative state.” Congress passes laws that amount to mere statements of intent, avoiding the difficult choices that invite scrutiny and make enemies. It passes the buck to executive agencies, which then must make the value judgments and trade-offs via processes largely behind closed doors. Agencies involve voters only in rare moments of “public comment,” and the process is subject to no public oversight other than the quadrennial election of the president. Presidents often complain about their lack of power when Congress presents them with huge omnibus spending bills that they must accept or reject in their entirety. Executive rulemaking is exactly the same thing, except that Congress has even less power to stop something it dislikes.
Judicial oversight is no substitute for congressional abdication. Judges are not equipped to make the moral or technical judgments such laws in all but name require. They are largely put in the position of rejecting or accepting such rules in toto, and as a result, the rules they adopt in deciding how they can do so are of immense import to our system of government.
That’s why debates over seemingly arcane legal concepts such as “Chevron deference” and the “non-delegation doctrine” matter. These ideas ultimately decide who rules — the people through their representatives or the bureaucrats and political appointees through the executive — in wide swaths of public policy.
Conservative lawyers are excited over the prospect that a majority of the Supreme Court has expressed a willingness to reexamine some of the doctrines that have allowed this congressional abdication to flourish. But given that the public charge rule is almost certainly going to be tied up in court, it’s possible that new majority may choose to launch its assault on the administrative state on a policy that conservatives favor. Wouldn’t that be the height of irony?