Choosing Between Healthcare and a Green Card: The Cost of Public Charge

Public charge policy has been part of the nation’s infrastructure since its colonial beginnings. The policy originated as a barrier to protect taxpayers from individuals who posed a risk of becoming a charge on society, relying on public aid and governmental support. Congress last addressed the public charge statute in 1952 in the Immigration and Nationality Act, and it has been further developed at the will of the executive branch alongside the growth of immigration law and the welfare state. The Department of Homeland Security (DHS) proposed a rule change to the public charge policy to be implemented in October 2019, but the proposed rule change was temporarily halted by federal courts days before it went into effect, partially because it threatened public health and posed an extreme financial burden to healthcare centers. On January 27, 2020, the Supreme Court stayed the lower court’s injunction in response to an emergency petition by the administration, effectively voiding the ban in forty-nine states and allowing the 2019 public charge policy to take effect while the issue is litigated in lower courts. The rule went into effect on February 24, 2020, a mere month prior to the onslaught of the COVID-19 outbreak in the United States. On July 29, 2020, DHS was enjoined from implementing the 2019 public charge policy for the duration of the national health emergency in response to the pandemic. Public charge policy has fallen to the discretion of the executive branch in recent decades, and the last major policy guidance was issued in 1999. Congress did not overrule the executive agency in 1999, in a way signaling acceptance of the policy trend at the turn of the millennium; however, the 2019 rule change executed by DHS derails the agency’s prior interpretation significantly. Public charge policy has historically been used by the federal government to discriminate, and it continues to be used as a political tool to exclude racial and ethnic minorities from accessing public health benefits. In burdening these minorities, the government in turn burdens the healthcare system. Without congressional action, the fate of public charge is decidedly unclear and the confusion and fear for noncitizens fueled by the 2019 rule will not abate. This Comment proposes that Congress revise the public charge statute to address concerns raised by the 2019 rule, at minimum ensuring that access to legally entitled health benefits are excluded from public charge consideration