The Trump administration announced long-awaited “public charge” immigration regulations this week, and the furor immediately kicked up to derangement level. Reason’s Shikha Dalmia called the policy a “complete abuse of the original understanding” of the law.
In the Washington Post, opinion writer Paul Waldman said the policy sends a message: “We hate you and we don’t want you here, and if you come we will treat you with all the cruelty we can muster.” CNN’s legal analyst Jeffrey Toobin went so far as to call the proposed regulation “un-American.”
There is very little nuance left in political discourse. Every administration policy is said to be the key to saving America or the final step in dooming it, depending on your point of view. But immigration regulation of this sort has been a part of our laws for more than a century, and is based on legal theories that predate the founding of the republic.
The administration’s policy shifts the guidelines slightly, but remains well within the historical mainstream. Our theory of immigration law has not changed; our ideas about work and the welfare state have.
No, We Won’t Take Your Criminals
From the beginning of America’s colonial period, the colonies’ governments were concerned about the arrival of immigrants from Europe who were not able to support themselves. While the colonies craved immigrants, they knew the people they needed were those who would build the new societies being created on these shores.
This was contrary to the will of the British Crown, which saw America as a convenient dumping ground for the poor, the criminal, and anyone else seen by high society as a problem. The colonies were struggling—and kept that way by Britain’s mercantile system—so the prospect of supporting more people was not feasible.
And support them they would, if such immigrants were allowed entry. We think of poor relief as a 20th-century invention, but the colonies’ poor laws mirrored those of the mother country and provided for local jurisdictions to support what were then called the “deserving poor.”
England’s poor laws were not meant to be punitive. They were designed to help the poor who could not work and to find work for those who could. But they also were parochial—literally—and did not extend to paupers who arrived from outside the parish.
The colonies saw things the same way. That continued beyond independence and was applied to immigrants and native-born alike.
We Won’t Take Public Charges, Either
The treatment of paupers was a local matter then, but immigration was a federal concern according to the Constitution. The question of indigent immigrants was not resolved until 1882, when Congress passed the first major immigration act. Along with instituting a 50¢ fee, the 1882 act declared that “any convict, lunatic, idiot, or any person unable to take care of himself or herself without becoming a public charge…shall not be permitted to land.”
While the old-fashioned language of “lunatic” and “idiot” is no longer in common use, the idea of a person “becoming a public charge” is still a concern. The 1952 revisions to immigration law maintained the idea that the government may exclude “paupers, professional beggars, or vagrants” and those who are “are likely at any time to become public charges.”
The 1965 Immigration and Nationality Act, written at a time Congress was vastly expanding the welfare state, substantially amended the 1952 act to remove many race- and ethnicity-based limits, but left the public charge language intact. In 1996, Congress strengthened the public charge provisions, listing a series of factors to be used in the determination (see section 531, here). The public charge doctrine remains among the most consistent parts of American immigration law, essentially unchanged since 1882.
It’s Un-American Only If Americans Are Lazy
If the public charge policy is longstanding, why would anyone call the Trump administration’s interpretation “un-American?” According to the proposed regulations’ summary, the Department of Homeland Security (DHS) “seeks to better ensure that aliens subject to the public charge inadmissibility ground are self-sufficient, i.e., do not depend on public resources to meet their needs, but rather rely on their own capabilities, as well as the resources of family members, sponsors, and private organizations.” That is precisely the ideal that has animated the public charge theory since its inception.
To achieve this, the regulations—which do not apply to refugees, asylum-seekers, and various other groups—propose guidance to determine if an immigrant would be likely to use the welfare system for more than 12 months during a three-year period. One might be on welfare for one-third of the period in question, therefore, and still not be excluded.
Critics charge that ambiguities in the regulations mean DHS could exclude nearly anyone who might possibly take even a dime of monetary or non-monetary public assistance. This would be a mistake, and if that is the case the language should be modified to eliminate that possibility. Regulations should add clarity to law, not introduce ambiguity. But the principle as stated more generally, while stricter than previous interpretations, need not be unduly draconian.
It demonstrates the difference in how the New World perceives immigration compared to the Old. In Europe, immigrants often have an easier time receiving welfare benefits than permission to work legally. The laws there are structured to keep jobs for the native-born, while being more open-handed with taxpayer subsidies.
The result is high unemployment and more isolation among poorer migrants. In Sweden, for example, 84.8 percent of the native-born labor force was employed in 2014, compared with just 68.9 percent of foreign-born workers. For workers without college degrees, the gap is even larger: 71.1 percent versus 51.5 percent.
In the United States and many other New World countries, it is the opposite. The editors of the Wall Street Journal noted as much, saying that “labor participation rate of Hispanic foreign-born high-school graduates (72.2 percent) is comparable to white native-born bachelor’s degree recipients (72.7 percent) and significantly higher than native-born whites with merely a high-school education (53.8 percent).”
Immigrants come to America looking to work. Supporters of immigration often say—correctly—that legal immigrants to the United States are less likely to commit crimes and more likely to have jobs compared to the average American. The proposed regulations would not change this. Economic migrants who are capable of supporting themselves should be welcomed, the same as they were before.
The Law Is the Same, But Our Culture Has Changed
The American system of encouraging work is objectively good. Industry is virtuous for its own sake, and all people should consider it ideal that those who can support themselves should. Most immigrants will agree with this point. They don’t come here to get benefits, they come here to make a better life through hard work. That was true before and remains true today.
Work over welfare also speeds integration into American society. Our homes, our streets, even our neighborhoods may be homogenous places, but when we go into society to support ourselves, we interact with all sorts of different people.
Becoming familiar with the American population in all its diversity is good for everyone, and is especially beneficial in teaching newcomers the values and customs of their new nation. Becoming American is easier when you interact with your countrymen. Work and commerce are among the main ways we do this.
Work has always been part of the American Dream. That remains unchanged in our immigration law for over a century. The bigger change has been the runaway growth of the federal welfare system. Local poor laws small in scope and scale have given way to massive federal bureaucracies concerned with taxing and spending on a one-size-fits-all welfare state imposed from Washington.
That shift has accompanied a shift in culture. While welfare was once seen as the last refuge of the desperate, something accorded to those truly unable to work through circumstances beyond their control, it is increasingly talked of as a part of daily life for millions of Americans.
Democratic candidates for the presidency are now falling over each other to give away taxpayers’ money, not just to the needy but to middle-class people as well. Even once-laughable ideas like universal basic income—a monthly welfare payment to all 300-plus million Americans—are now treated with a seriousness that is at odds with reality.
When welfare benefits become standard parts of the average American’s everyday existence, it is natural to recoil at the idea of saying immigrants cannot access them before immediately upon entering the country. But the problem is not the immigration laws, it is the welfare state and its attendant culture.
This is the sort of thing you would think Reason and other libertarian publications would note, but the temptation to bash the president is apparently just too great. We’ve hobbled the American Dream for ourselves, gradually replacing it with the creeping welfare statism of old Europe.
DHS’s new regulations and the law that authorizes them preserve a bit of that old American spirit, and are compatible with a nation that continues to welcome immigrants to its shores. Instead of decrying the call to hard work and self-reliance, we should extend it to ourselves.
