AP Photo/Susan Walsh
Ann Mongoven is the associate director of health care ethics at the Markkula Center for Applied Ethics. Views are her own.
Two unimplemented federal rule-changes on immigration proposed by the Trump administration are now being hotly contested. As the public debates the merits and the legality of these proposals, it is important to consider how the proposals themselves erode the rights of many people even in the absence of enactment. Those adversely affected include American citizens, legal residents, children, and asylum seekers. In public life, changed words can eviscerate rights and benefits—whether changed rules or laws ever follow or not.
The first proposal, issued in October by the Department of Homeland Security for public comment through the federal rule-making process, is often tagged “the public charge criterion.” It seeks to broaden the kinds of public-service usage by immigrants that can be considered a negative factor in citizenship applications. Established in 1996, current law allows the immigration process to disfavor those considered “likely to become a permanent public charge.” The criterion for such likeliness is narrowly defined: The federal government persistently supplies more than half of family income in direct cash assistance. The new proposal would broaden what kinds of public support can be counted against those seeking to immigrate permanently. It would include health benefits such as Medicaid coverage, nutritional assistance such as food-stamps, and housing assistance such as federally-subsidized housing. Significantly, only citizens or legal residents are eligible for those federal benefits. Therefore, the proposal would most directly affect adult documented immigrants in the citizenship-application process, and the U.S. citizen-children of both documented and undocumented immigrants.
While only in the earliest stages of consideration, this proposal is already having chilling effects. At the fall meeting of the American Public Health Association, myriad service-providers lamented a surge of low-income families requesting, on the advice of their immigration attorney, that they or their children be disenrolled from these assistance programs. (Some have even taken their children out of school, wrongly fearing that public school might count in the broadened proposed interpretation of frowned-upon “public support.”) Government officials and non-profit staffers who serve immigrants can emphasize that the proposed broadened categories have not been enacted. However, given the ongoing political process, they cannot promise that present benefit-use will not prejudice future immigration status. Therefore, many immigrant families are choosing to relinquish benefits that could keep them safe and help them to advance successfully educationally and socio-economically. Documenting the magnitude of benefits lost to the power of an unimplemented proposal would pose a daunting challenge. But one indication of the alarming scope is the ardent anti-proposal lobbying of major physicians’ organizations and the American Hospital Association. The AHA worries that the proposal is hurting hospitals as well as patients and families. So many families are relinquishing Medicaid or CHIP (Children’s Health Insurance Program) benefits for which they qualify that AHA fears hospitals serving large numbers of immigrants may face financial disaster as local rates of un-insurance spike.
While immigrant families foregoing available supports are the most directly and disastrously affected, huge swaths of the American population are stigmatized by the proposal, including non-immigrants. Currently, Medicaid insures one in five Americans. Forty million Americans receive SNAP assistance (formerly called food-stamps)—the majority of them working Americans in low-wage jobs, contrary to unfounded stereotypes of the “lazy” recipient. Nine million Americans live in 5 million housing units that are federally subsidized. Much higher proportions of the American population have used one or more of those services at some point in their lives. Not only is equality before the law undermined by proposing to penalize some among the many who use widespread public services for which they are eligible. More fundamentally, the proposal sneers at the very notion of a social safety net. It projects a harmful illusion that “real” Americans are never buffeted by economic recession, ill health, divorce, natural disasters, or bad luck. It also ignores vast evidence of how frequently these programs enable greater financial independence, not dependence, over time.
The second proposal was issued by President Trump in November as an executive order, but implementation was immediately blocked by a federal judge. Invoking national security concerns in response to a caravan of migrants advancing northward through Central America, President Trump sought to change policy governing requests for asylum. His blocked order would deny the right to request asylum consideration to migrants who cross the border anywhere other than at an official border station, which he describes as “illegal.” But, contrary to the president’s rhetoric, asylum seekers have always been allowed to cross the border legally anywhere as long as they present themselves to authorities for adjudication of their asylum claims. Since the proposal directly contradicts U.S. statutory law, most legal scholars think there is no chance the administration will prevail in ongoing litigation. Straightforward interpretation of the law indicates new legislation, not just an executive order, would be required to make the change.
Despite its unlikely chance of enactment, the proposal is largely responsible for the highly publicized back-up of refugees seeking asylum at the Tijuana border station. Hearing the president call for rescinding rights to pursue asylum for any who do not present at designated checkpoints, many asylum-seekers understandably re-evaluated the relative risks and benefits of presenting at border stations or attempting to cross furtively into the U.S. to present asylum claims. Failure of the federal government to assign more asylum interviewers to border stations accordingly resulted in the predictable back-up of increasingly desperate refugees in Tijuana.
The change in words, without any accompanying change in law, changed not only refugee behavior but also American public perception. Dramatic pictures of crowds awaiting months-off asylum interviews in Tijuana project an image suggesting increasing masses of migrants are “storming” the Mexican-U.S. border. In fact, both legal and illegal immigration across the Mexican-U.S. border have decreased significantly in recent years.
Words matter. In current public discourse on immigration, words have been weaponized against the vulnerable. Targets include some of the most vulnerable Americans, the citizen-children of undocumented parents who disproportionately bear the brunt of benefit dis-enrollment. They also include vulnerable refugees on the border who deserve due process of law to consider their asylum claims.
But make no mistake: all Americans are victims of the words in these unimplemented proposals. These words imply America is not a place where creative, hard-working people can work their way up from social disadvantage in a land of opportunity. These words imply America cannot afford to be a land of due process and equality before the law in the face of complex social challenges. All Americans, including those with diverse views on appropriate immigration reform, should agree that is not the America we know.