U.S. Immigration Policy Was Cruel Long Before Trump

(Bloomberg Opinion) -- A lot of people on left and right alike got angry about the Trump administration’s new “public charge” rule, which would largely bar citizenship to millions of legal immigrants who have accepted certain forms of state assistance.  Certainly the policy seems cruel.  Nevertheless, critics are focusing on the wrong target.  If it’s wrong to deny green cards to immigrants because they’re poor, it’s hard to see why it’s right to deny entry to potential immigrants on the same basis.  Yet we’ve been doing exactly that in practice for nearly two centuries, and the denial has been codified in federal law since 1882.

The new regulation, which runs to more than 200 pages in the Federal Register, is an interpretation of Section 212(a)(4) of the Immigration and Nationality Act, which provides that no immigrant shall be admitted to the country if he or she is “likely at any time to become a public charge.”[1]  This rule, sometimes called the LPC restriction, is the ground most frequently invoked for excluding potential immigrants and visitors.  The administration’s new interpretation holds that a person who has received specified public benefits while in the U.S. fulfills the criterion for being a public charge, and is therefore inadmissible.  And under existing law, an inadmissible immigrant, even if a resident, cannot receive a green card.

In other contexts, the courts have allowed the use of the "public charge" provision to deny adjustments to the status even of immigrants already in the country.  True, there are limits.  For example, the disqualifying public assistance must have been received by the applicant; it's irrelevant whether assistance has been provided to members of the applicant’s family.  Similarly, once the applicant has crossed the border, the assertion that he or she is likely to become a public charge cannot be mere speculation. The administration’s new approach may be ungenerous, but it may also prove to be consistent with the precedents.

And that’s the real problem.

By focusing on the new rule, critics are letting immigration law itself off the hook.  The bigger issue is in the LPC restriction itself, which by design, under Democrats and Republicans alike, has long excluded huddled masses yearning to breathe free.  Even should the legal challenge to the regulation succeed, the bigger issue is the LPC restriction itself. As one scholar of immigration law has put it, “a prospective entrant must establish that he or she is and will continue to be a member of a particular socioeconomic class – most definitely not poor or likely to ever become poor – to lawfully migrate to the United States.”

The statute grants a great deal of discretion to both consular officials abroad and immigration officers at home.  During the run-up to World War II, the “public charge” rule was notoriously used to refuse entry to Jews seeking to escape the Nazi onslaught.  Until fairly recently, the same broad discretion was often used to prevent the entry of gays and lesbians, who were often considered more likely to become public charges.  Today, there’s reason to think that the exclusion falls particularly hard on people of color.

Moreover, there’s reason to think that the rule has been applied differently to men and women.  The historian Martha Gardner, in her book “The Qualities of a Citizen: Women, Immigration, and Citizenship, 1870-1965,” points out that historically the LPC restriction tended to reflect “a constrained and diminished evaluation of women’s role in the economy.”  In particular, “women arriving during the early twentieth century who were alone, pregnant or with children” were “routinely” excluded as LPC – without regard to “their work skills.”

Decades ago, this gendered application of discretion – which some say continues to the present day – ensnared my family.  In 1910, my great-grandmother, Addie Hunton, was returning to the country after two years of studying philology at a German university.  Accompanying her were her two children (my grandmother and my great-uncle).  Although Addie lived in Brooklyn and was a U.S. citizen, her husband was Canadian – and her passport, in the tradition of the times, was an extension of her husband’s.

The immigration officer looked at her passport and her children and the color of her skin and decided she was a likely public charge.  He would hear no argument about her skills.  It made no difference that until she headed to Europe to study, Addie had been gainfully employed in the U.S.  The family was detained.

Even today, horror stories about the exercise of discretion under the LPC rule are common.  The legal scholar Kevin Johnson tells the story of an elderly Chinese woman who applied for a tourist visa in order to visit her grandchildren in the U.S. before she died.  The application was denied on LPC grounds, and she died without seeing her family.[2]

But the potential for arbitrariness and bias in the application of discretion is only one difficulty with the statutory exclusion of those likely to become public charges.  The restriction is also inconsistent with the spirit of the bootstrap story we like to tell ourselves, the chance for everyone who lives in the U.S. to climb the ladder of success.  Those who clamor for admission to build better lives for themselves and their families seek to fulfill precisely this dream.  So if you’re angry about the administration’s new rule, it's not enough to lambaste the president.  You should be fighting to change the underlying law.

It’s not evil for a country to prefer immigrants who are able to support themselves.  We should always welcome those who bring along specialized skills that we need.  But if we’re going to call ourselves the land of opportunity, we shouldn’t exclude those who we think might have to struggle a bit.  Helping others along as they seek to rise is also the American way.

[1].  Much of the coverage of the rule change states that the new regulation is over 800 pages long.  This is incorrect.  In the first place, the official version of a rule is the version that appears in the Federal Register, where the rule occupies 216 pages.  In the second place, much of the new rule is the same as the old one

To contact the editor responsible for this story: Sarah Green Carmichael at sgreencarmic@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Stephen L. Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park,” and his latest nonfiction book is “Invisible: The Forgotten Story of the Black Woman Lawyer Who Took Down America's Most Powerful Mobster.”

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