Trump Attempts a Sweeping Reduction of Legal Immigration by Executive Fiat

When it comes to slamming immigrants, the Trump administration is nothing if not tenacious. It failed to browbeat Congress into cutting back legal immigration—the kind that the Republican Party used to think was swell because these people were playing by the rules—in exchange for legalizing Dreamers or those who have grown up as Americans even though they were brought here as minors without proper authorization. So now it’s trying to reduce legal immigration through administrative means. It has slashed the refugee cap to its lowest level ever, it is making the asylum program unusable, it is taking work authorization away from the wives of high-skilled workers, it is making it far harder for people with H-1Bs visas to hang on to their visas, and so on.

But none of that compares to its “public charge” rule, which was originally leaked in the spring and was finally released on Monday. The final rule turns out to be better than the initial horror. But as expected, the administration is using its executive authority not just to slash legal immigration but to remake the family-based system—the one that conservatives loved when they believed in family values—along lines that Congress has explicitly rejected several times. If President Barack Obama had used his executive power so expansively to allow more immigration, Republicans would have surely gone bonkers.

The administration’s rule will give immigration bureaucrats sweeping powers to deny citizenship, green cards, or visa upgrades to any immigrant it deems a “public charge.” But its definition of public charge has nothing to do with the spirit of the 1891 law that it is invoking. That law was meant—in the frank language of its time—to keep out “idiots, lunatics, convicts” or otherwise indigent or disabled folks who couldn’t earn a living and would therefore become a ward of the state. In 1999, the Clinton administration defined “public charge” as anyone whose cash benefits through programs such as TANF (Temporary Assistance for Needy Families) and SSI (Social Security Income) accounted for 50 percent of their income. In other words, people primarily dependent on welfare.

Trump’s proposal would turn all that on its head.

As Vox‘s Dara Lind explains, the Trump plan breaks down benefits into two different categories. One is benefits that “can be monetized”—i.e., that have a dollar value attached to them—such as TANF, SSI, food stamps, and Section 8 housing benefits. The other is that cannot be monetized: Medicaid, low-income Medicare Part D assistance, and subsidized housing. She explains:

There are three tests, based on these categories, to reach the threshold for reliance on public benefits in a way that could all but disqualify an immigrant from a visa or green card:

1. Individual use of “monetized” benefits over 12 consecutive months that total more than 15 percent of federal poverty guidelines for a single-person household ($1,821 in 2016), or
2. Individual use of “non-monetized” benefits for more than 12 months in any previous 36-month period, or
3. Any individual use of “monetized” benefits plus individual use of “non-monetized” benefits for more than nine months in any previous 36-month period

Under this system, the Cato Institute’s David Bier estimates, if an immigrant with a family of four uses $2.50 per day in cash and/or non-cash benefits, he or she will be denied a visa upgrade.

This is a little bit better than the administration’s original threshold of $1 per day for a single person or 50 cents per person for a family of four. And it won’t count welfare use by the American kids of immigrants against their parents’ visa petitions. Still, it’s pretty bad even from the standpoint of those who say “immigration, yes; welfare, no.” Why? Because instead of walling off the welfare state from immigrants so that more immigrants could be admitted, it is using the welfare pretext to stop immigration. Immigrants already by and large aren’t allowed to use means-tested federal cash benefits unless they are green card holders who’ve been in the country more than five years. This new rule won’t bar them from more welfare—cash or non-cash. It’ll just count its use against their immigration status. It is tantamount to saying “welfare, yes; immigration, no.”

And the administration will not just count the use of past benefits against prospective immigration applications. It will count predicted future use, giving immigration bureaucrats sweeping powers to weigh a “totality of factors.” Having a large family, for example, will be a “negative factor.” So will having a health condition while not having private health insurance, or being under 18, or over 65. On the flipside, having a household income between 125 and 250 percent of the Federal Poverty Guidelines would be a positive factor in favor of ltetting them in and an income over 250 percent would be a “strongly weighted positive factor.”

The only ones who’ll make it for sure under these rules are young, high-skilled singles making big bucks. Everyone else will be at the mercy of officials wielding those weights as weapons.

The Tump plan’s defenders claim that it is basically trying to emulate Canada’s point system, which gives preference to youth, skills, and linguistic ability. But that’s disingenuous. Canada uses its point system to expeditiously process twice as many immigrants as the United States on a per capita basis. The Trump administration wants to use theirs to restrict immigration.

Furthermore, Congress rejected this approach when it refused to pass the Bush-era comprehensive immigration reform bill. So Trump is basically doing an end-run around Congress—something that drove conservatives berserk when Obama attempted it on a much smaller scale by giving a temporary reprieve from deportation to about half of the country’s 11 million unauthorized immigrants. Indeed, Obama’s programs were a one-time thing for a finite number of immigrants. Trump’s scheme would apply to all future immigrants.

Anyway, Canada’s point system isn’t all that it’s cracked up to be. It is better than the U.S. system in many respects, but it has problems of its own; notably, its emphasis on high skills deprives the Canadian economy of the low-skilled workers it also needs. It had to rectify that problem by creating the Provincial Nominee Program, which gives provinces vast latitude to recruit the immigrants—high- or low-skilled—that best suit their economic needs.

Restrictionists have long aspired to slam America’s doors to all but the very selective few. This Trump scheme is a giant step in accomplishing that end. The good news is that in two months, at the conclusion of the notice and comment period, the government will almost certainly be sued to stop it.