The Immigration and Nationality Act (INA) provides that an individual may be excluded or removed from the United States if he or she is likely to become a “public charge.”  Throughout American history, the term “public charge” has been understood to refer to those who receive cash benefits from the government for subsistence or who experience long-term institutionalization.  In August 2019, the Department of Homeland Security promulgated a new rule redefining that term.  Under the Trump Administration’s rule, an individual may be deemed inadmissible to the United States or may be denied an adjustment of immigration status based solely on the acceptance of non-cash public benefits, including assistance through the Supplemental Nutrition Assistance Program (SNAP), Section 8 Housing Assistance, Section 8 Project-Based Rental Assistance, Medicaid (with some exceptions), and certain other forms of subsidized housing.  Several nonprofit organizations, cities, counties, and states challenged this rule in various federal district courts, and in October 2019, district courts in New York and Maryland concluded that the rule is likely unlawful and issued nationwide preliminary injunctions to keep it from going into effect.  In January 2020, CAC filed an amici curiae brief in the Fourth Circuit on behalf of legal historians urging the court to affirm the Maryland district court’s judgment.  In August 2020, however, a Fourth Circuit panel reversed the district court, holding that the Trump Administration’s public charge rule is a permissible interpretation of the statutory public charge provision.  In December 2020, the Fourth Circuit agreed to rehear the case en banc, and CAC again submitted its amici curiae brief on behalf of legal historians.

Our brief made two main points.  First, we argued that the receipt, or likely receipt, of non-cash benefits has never been, standing alone, sufficient to make an individual a “public charge” subject to exclusion or removal from the country.  Public charge laws, or “poor laws,” in colonial and early America did not uniformly mandate that poor individuals be removed; in fact, they routinely provided financial and other support for impoverished immigrants.  In 1882, Congress passed the first general Immigration Act containing a “public charge” provision, but this law and other federal immigration laws that followed were not designed to significantly limit immigration into the country, and they consistently did not render immigrants excludable or removable based solely on the receipt of non-cash benefits.  Every federal law containing a public charge provision and every agency interpretation of such a law prior to 2019 has continued to rely on the well-established historical definition of “public charge.”  Second, we argued that, given this history, DHS’s rule redefining “public charge” violated the Administrative Procedure Act (APA).  Congress necessarily incorporated the longstanding definition of the term “public charge” into the INA’s public charge provision, so DHS’s rule significantly expanding that term to apply to those who receive only non-cash benefits was not “in accordance with law” and violated the APA.

In March 2021, the Biden Administration announced that it would not defend the Trump Administration’s rule redefining the term “public charge” and moved to dismiss the en banc appeal.  The Fourth Circuit granted that motion to dismiss.