Brentin Mock is a staff writer at CityLab. He was previously the justice editor at Grist.
The changes to the “public charge” rule fit into a long history of attempting to restrict immigration based on race and ethnicity.
On Monday, the Trump administration announced new restrictions on whether immigrants can enter and remain in the United States by changing the definition of “public charge” (i.e. those who depend on financial government assistance). The new rule, scheduled to take effect in mid-October, will penalize immigrants who access public benefits such as Medicaid and food stamps by making them ineligible for green cards.
Experts on the issue say this will deter immigrants who are in the U.S. legally from accessing necessities like food and medical care out of fear of compromising their chances of becoming a permanent resident.
The “public charge” emphasis on economic standing has a long, controversial history in the U.S., and that history is completely wound up in racism, according to the forthcoming article “Publicly Charged: A Critical Examination of Immigrant Public Benefit Restrictions,” written by Cori Alonso-Yoder, the Practitioner-in-Residence at the Immigrant Justice Clinic at American University Washington College of Law.
“Efforts to expand the definition of ‘public charge’ through welfare and immigration reforms of the mid-1990s laid the groundwork for the current Trump policies,” writes Alonso-Yoder, “but so too did the original 19th century statutes limiting migrations of poor people. When examined together, these immigration policies on public charge bear striking similarities to the racist rhetoric which peaked in the 1990s surrounding Black families’ use of public benefits.”
The legal “public charge” distinction, and its accompanying stigmatization, was launched in the 1880s, when immigration to the U.S. was ascendant, particularly from some of the poorer parts of Europe. The application and enforcement of public charge measures went latent for most of the early 20th century, but were revived by conservatives and nativists in the latter half of the century, when the federal government began relaxing its laws around admitting immigrants from non-European countries. At this point, conservatives began banking much of their politics on the idea that poor people of color were sucking up government resources.
Alonso-Yoder argues that this racist history heavily informs Trump’s immigration policies today, particularly with the emphasis on defining who is and isn’t a “public charge,” and hence unworthy of this country’s rights and privileges. CityLab spoke with Alonso-Yoder on the day the new rule was announced to discuss this historical context and what it means for Latinos and African Americans moving forward. The interview has been edited for length and clarity.
Can you explain the racist roots around the language of “public charge,” and how it became codified in our laws?
So the “public charge” is a term that has really taken hold in immigration law. It’s a means by which people who’ve been interested in settling in the United States for the past 100 years have been denied that ability based on the very ill-defined category of the public charge: someone who is deemed to be primarily dependent on government services.
Initially the term was just that: public charge. And those two words conjured an image of a pauper. A lot of the early law comes from fear of migrations of people from certain parts of Europe—from Ireland primarily. There have been further developments in the law up until and including literally this week, when acting USCIS director Ken Cuccinelli created, or is now implementing, this new rule for immigration officials to determine the aspects and the factors that will be considered for denying certain people admission into the United States.
We see these changes coming at a time when immigrants are now coming from countries that are predominantly Asian, Latin American, and African, in a way that wasn’t seen at other times since the rule was built out. That seems very clearly a reaction to the ways in which our immigrant demographics are looking less and less white. Now the current rule on the public charge has become far more defined. We have a rule now that is about 850 pages, whereas in the 1880s, when this law was first passed, it was just two words: public charge.
Explain the connections between the racially loaded terms “welfare queen” and “anchor baby.”
On its face, “welfare queen” doesn’t say anything about race—though it definitely refers to gender. But the way that it’s been used, the images that it conjured, and that sort of strategic advantage it leveraged in the political debate was very much premised on this skepticism of receipt of public welfare benefits by African American families. Something very similar is happening right now with the common usage of the term “anchor baby.” The anchor baby image is very much part and parcel of the welfare queen rhetoric, but it also symbolizes to me a deep dehumanization of people by literally referring to them as an object—and an object of burden, an anchor.
That term “anchor baby” also starts to make the children of immigrants culpable—an indicator of how this debate around the deservedness of immigrants is now spilling over into the deservedness of American citizenship. There is a cynicism about the citizenship of what should otherwise be seen as full United States citizen-children, because there’s some concern or fear about the ways in which their parents arrived in the United States.
For me, that very clearly locates the debate around the receipt of public benefits as not being one about immigration status, because we now have a public-charge rule that seeks to disqualify legal immigrants, [along with a] maligning of their U.S. citizenship by virtue of the experience of their parents.
This all feels like a chipping away at the 14th Amendment’s birthright citizenship—how ironclad is that?
I do not think it’s ironclad. A lot of the definitions of nationality and citizenship today interpret the 14th Amendment, but they are actually found in statute. I’ll use myself as an example. I was born in Mexico to a Mexican father and an American mother. I am a United States citizen only by virtue of statute. I’m not an American citizen by virtue of the U.S. Constitution. There’s a statute that says that a person in my circumstance who is born to a United States citizen-mother who has also met certain requirements will become a United States citizen upon birth. But again, that’s a statute. It doesn’t even need a constitutional amendment to be overturned. Those sorts of things can be changed by statute.
There’s been an effort since the 1990s up until today to try to change the meaning of and to create more structure around what it means for a person to be born, “subject to the jurisdiction of the United States.” Really, the question of birthright citizenship anchors on this one piece of the 14th Amendment that says that a person who was “born in the United States and is subject to the jurisdiction of the United States” becomes a U.S. citizen at birth. Republican lawmakers have put forth several attempts to further refine what it means to be “born subject to the jurisdiction of the United States.” For example, if they’re undocumented, or they’ve entered the United States in an unauthorized fashion, or they have some sort of status that falls short of lawful permanent residence.
So that certainly can change. Not only by an amendment to the 14th—it could also happen with a far lesser legislative threshold. Whether it would withstand Supreme Court review would ultimately be the question. There have been efforts—birthright citizenship acts is usually what they’re called—within Congress to try to change what it means, or what the common understanding of the 14th Amendment is.
But even beyond that, my understanding from Trump’s comments is that he does not actually think that congressional legislation is necessary to change the meaning of the 14th Amendment.
My understanding is that he believes that the 14th Amendment means something different than what the rest of the United States has understood it to mean, because he keeps referencing that he has these lawyers who will show that people who are born in the United States to undocumented immigrants are not citizens of the United States. He believes on its face that “subject to the jurisdiction of” is actually clear, meaning that undocumented people are not subject to the jurisdiction of the United States without further need for legislation, just by means of legal interpretation.