Briefs Filed Friday Assert Trump Administration’s Policy Contradicts Century-Long Legal Understanding and Urge Court to Set it Aside

Baltimore, MD — The United States House of Representatives and more than a dozen professors and scholars of immigration law submitted two “friend of the court” briefs in support of the Plaintiff’s motion for summary judgment in Baltimore v. Trump, a lawsuit seeking to set aside the State Department’s unlawful policies expanding the public charge ground for denying visas to immigrants. Democracy Forward and the law firm WilmerHale are co-counsel to the Plaintiff in the case. The amici forcefully argue that the State Department’s new public charge definition deviates from over a hundred years of interpretation of the term and unlawfully exceeds the State Department’s authority. The two briefs, filed on Friday, urge the court to invalidate the State Department’s public charge policies.

The House brief argues that: “The Executive Branch should not be permitted to outmaneuver Congress by expanding the term to give it the meaning Congress rejected.” Indeed, the Trump administration’s changes fly in the face of Congress’ continued affirmation of the longstanding interpretation of public charge — including Congress’ reenactment of the public charge provision in a 1996 law. The House brief further notes that the State Department’s rushed rule “would be impossible to apply rationally or fairly” because “there is simply no way for a government official to predict with any degree of accuracy whether an individual may at some point many years later in life” decide to accept minimal assistance from the government.

In their brief, the professors and scholars of immigration law give an overview of the 130-year legal history of the term, concluding that “all three branches of the federal government have understood ‘public charge’ to refer to a person who is ‘primarily dependent’ upon the government for subsistence” — not anyone who may someday accept minimal assistance from the government. They explain that “an immigrant’s receipt of non-cash benefits has never been a factor relevant to a public charge finding,” and that the State Department’s policy changes ignore the long-settled understanding and implementation of the term. “Because the [rule] is contrary to existing law” and “arbitrary and capricious,” the scholars urge the court to strike down the State Department’s policy changes.

The two filings follow the court’s decision last September rejecting the Trump administration’s attempt to dismiss the case, which, at the time, focused only on changes to the public charge provision in the State Department’s Foreign Affairs Manual (FAM). Just a month after the court’s September ruling, the Trump administration rushed to promulgate an interim final rule (IFR), which is, in many respects, merely a repackaged version of the same policy. With both the FAM change and the IFR, the Trump administration refused to provide the public with advance notice or an opportunity to comment, failed to provide an adequate explanation for the change, and violated both federal law and the U.S. Constitution — all with the invidious intent of targeting immigrants and their families.

The result of the State Department’s expansion has been stark. In fiscal year 2019, the State Department denied a staggering 20,941 immigrant visas on the public charge ground — more than six times the number it did in fiscal year 2017before the policy was implemented. Internal State Department emails instruct officials to attribute the increase to “the new policy.” Baltimore has, for example, witnessed:

  • More than 19,000 residents drop out of SNAP since the 2018 FAM change took place, placing increased pressure on the City’s Summer Food Service Program. The City’s grocery stores and supermarkets have faced significant losses as a result. Decreases in SNAP spending in many stores could lead to closures and widespread decreases in food access — harm that DHS predicted in its efforts to revise public charge grounds in a parallel rule on which the IFR is modeled.
  • Enrollment in Medicaid among immigrant communities decline, burdening the City with the cost of uncompensated care. Fear that receipt of medical care from local health clinics and hospitals could result in immigration consequences has driven immigrants and their citizen family members to forgo or delay care. This threatens public health, as early diagnosis and monitoring are essential to treating patients, leading to worse health outcomes and likely increasing the spread of COVID-19.
  • A total economic impact of at least $12 million, and possibly $27 million, at a time when the City is already facing an economic crisis caused by the coronavirus.

In March 2019, a coalition of 19 states, led by Attorneys General Xavier Becerra and Karl Racine, 17 cities and counties, 10 civil rights organizations, and five Maryland immigrant advocacy organizations filed four separate briefs in support of the challenge to the State Department’s 2018 FAM changes.

Baltimore filed its original complaint challenging the State Department’s 2018 FAM change in November 2018 in the District Court for the District of Maryland. The court rejected the Trump administration’s motion to dismiss in its entirety in September 2019, and the Plaintiff filed a supplemental complaint on February 7, 2020, adding a challenge to the State Department’s 2019 IFR. The motion for summary judgment was filed on May 15, 2020, and the House and law professors’ amicus briefs were filed on May 22, 2020.

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Democracy Forward is a nonprofit legal organization that scrutinizes Executive Branch activity across policy areas, represents clients in litigation to challenge unlawful actions, and educates the public when the White House or federal agencies break the law.

Press Contacts:

Charisma Troiano
(202) 701-1781
ctroiano@democracyforward.org