Correction: An earlier version of this post incorrectly stated that the Border Patrol was founded in 1929. It was actually founded in 1924.
Although the U.S. government has long tried to restrict the legal immigration of poor people and has severely restricted immigrants’ access to social services, the new rule is still stunning in its potential effect. Immigrants may be forced to choose between accessing services for which they qualify and applying for lawful immigration status. The mere appearance of poverty or even the potential for it may become the basis for a denied petition.
What is different about this most recent interpretation of a very old immigration law, however, is not just that it enacts a wealth test on potential migrants, but that it does so by placing benefits and support services widely considered critical to public health and human dignity on the line. In closely tying the mere potential for public dependence to moral failure, the Trump administration attacks not only immigrants, but the very legitimacy of the social safety net.
The Trump administration is innovating using a long-standing element of immigration law. Although the classification of some immigrants as “liable to become a public charge” as a basis for their exclusion was formally entered into the Immigration and Naturalization Act of 1882, the so-called public charge rule found its most relevant precursor in the 1875 Page Act. The Page Act, which barred the entry of all Chinese women into the United States on the basis of their potential for immoral conduct, was the first federal restriction on free migration into the country and the end of relatively open borders.
Driving the legislation were white American anxieties about cheap Chinese contract labor, racial intermixing and sex work. The law’s sponsor, Rep. Horace Page, argued that Chinese men accepted wages that were too low to support a spouse, leaving East Asian women susceptible to becoming sex workers. Because Chinese women were presumed to be too impoverished to support themselves by legal means and therefore might become reliant on charity or state assistance, they were barred. By 1882, Congress had also banned Chinese men from entering the country, too, and implanted the phrase “public charge” in federal immigration law, where it has remained ever since.
This was the same period during which the immigration enforcement bureaucracy arose. It expanded with the establishment of the Border Patrol in 1924 and the Immigration and Naturalization Service (INS) in 1933. These expansions came along with the development of screening procedures and a body of scientific knowledge that purportedly enabled officials to document and root out a range of “undesirable” qualities. The INS marshaled a growing body of psychological science to exclude suspected homosexuals, for example, on the basis that they were likely to become public charges because of their “perversion.”
This practice became codified in the McCarren-Walter Act of 1952. This exclusion of homosexuals, like the earlier exclusion of Asian women, demonstrates that being denied entry because one might become a public charge was about far more than economic circumstances. It was actually about excluding those who were racially, sexually or politically undesirable at a given moment.
This predisposition didn’t change when Congress liberalized American immigration laws in the 1965 Hart-Cellar Act by abolishing the national origins quota system. In fact, this change was mainly possible because it implemented a system based on family reunification, which explicitly alleviated the concerns underlying the public charge idea.
Framing immigrants as members of a family was an effective method of securing liberalized immigration laws because it made them seem nonthreatening and, in the minds of many Americans, unlikely to burden society. Familial reunification implied that a sponsoring citizen would be a breadwinner supporting an immigrant spouse or nonworking parents. These new migrants would be dependent on their sponsoring family members, and therefore pose no threat of competition with U.S. workers for jobs — and would be unlikely to rely on taxpayer-funded social services.
But framing immigration this way worked around the ideas underlying the public charge restriction, without weakening the political potency of the idea that immigrants were using and even abusing welfare. This choice would set the stage for far greater scrutiny of the link between marriage and immigration in the decades to come.
Nowhere was this clearer than in discussions of both marriage and welfare fraud in hearings for the Immigration Reform and Control Act of 1986. INS Commissioner Alan Nelson testified that immigrants were entering into falsified “green card marriages” to illegally obtain welfare benefits. Citing newspaper reports and mere suspicions as well as verified cases, Nelson claimed immigrants were abusing the family unification system to obtain student loans, food stamps, subsidized housing, in-state tuition and other support services. The resulting legislation contained several safeguards against marriage fraud — including mandatory waiting periods and green-card marriage interviews.
Like the “welfare queen” that Ronald Reagan had invoked to win election, Nelson’s testimony before Congress and his comments to the news media constructed a deceptive immigrant who “used” and then discarded a U.S. citizen spouse to gain access to the bounty of the American welfare state. The only problem? It was a fictional image, one that relied on existing racial tropes and assumptions about welfare use, without any research to support the idea that a real problem of any scale existed.
Following his time at the INS, Nelson returned to California to help author the notorious Proposition 187, a controversial ballot measure that barred undocumented migrants from accessing basic public benefits, including public schools and non-emergency medical services. Prop 187 passed in 1994 by nearly a nine-point margin. It was backed heartily by California’s Republican governor, Pete Wilson who cited the 1990s recession as a reason taxpayers could no longer support immigrant “dependency.” The measure never took effect — it was widely criticized as cruel and racist, a judge issued an injunction blocking it, and it was largely overturned as unconstitutional.
But the idea of the illegitimate immigrant, abusing the system, endured. Policymakers invoked the figure repeatedly, as part of their effort to transform welfare more broadly, as in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 and to undermine immigrant rights, as in the Illegal Immigration Reform and Immigrant Responsibility Acts of the same year. Together these laws, among other harsh measures, barred immigrants from accessing most social services. These reforms also made use of cash benefits, such as Temporary Assistance for Needy Families (TANF) or Supplemental Security Income (SSI), a permitted basis for denying an immigrant’s green card petition.
It was not a coincidence that Clinton-era welfare reforms made it nearly impossible for immigrants to legally access cash assistance at a time when those benefits were coming under attack as a whole. Those demanding welfare reform framed welfare recipients not as full members of society in need of assistance, but instead as personally culpable for their poverty and prone to fraud. By this logic, immigrants who claimed welfare had revealed themselves to be cut from a similar cloth — and therefore weren’t worthy of inclusion in the United States.
The new DHS rule builds upon this dubious mischaracterization. It threatens the most fundamental blocks of our social safety net: the right to food, the right to shelter and the right to medical care by painting immigrants who need any support in these areas as deviant and dependent. Conflating economic hardship with moral failure is an old tactic that has long been used to target immigrants. But by extending it to these most fundamental elements of public support, the new rule risks scaring people away from using critically important services that are often the difference between life and death, eroding the larger premise of the social safety net.