9th Circuit Enjoins Public Charge Rule

Rule’s impact on immigrants to Colorado remains unclear

A federal appeals court in California has enjoined the Trump administration’s “Public Charge Rule,” which bars immigrants from receiving a variety of taxpayer-funded benefits and excludes from the country those deemed likely to use them. The decision might lessen worries among health care administrators and providers that some sick Coloradans will not receive treatment.

In a 2-1 ruling released Dec. 2, the 9th Circuit Court of Appeals held the rule violated the Administrative Procedure Act, a decades-old law that governs how agencies must write regulations. The U.S. Department of Homeland Security “adopted the Rule, reversing prior, longstanding public policy, without adequately taking into account its potential adverse effects on the public fisc and the public welfare,” wrote Senior Circuit Judge Mary Schroeder in the majority opinion.

Issued in August 2019, the Public Charge Rule aims to specify how U.S. Citizenship and Immigration Services should determine whether an immigrant is likely to become a “public charge,” a term that has no statutory definition despite being a feature of American immigration law since the late 19th century. “That has long been something we’ve tried to screen out,” University of Colorado Law School clinical law professor Violeta Chapin said. 

The Trump version of the rule, which replaced one released by the Clinton administration in 1999, requires USCIS officers to consider an immigrant’s age, health, family status, assets and financial resources, education, and skills in making the determination whether they will be likely to take advantage of various taxpayer-funded programs. The “skills” subject to scrutiny include an immigrant’s ability to speak English. For Chapin, the mandate to take into account an immigrant’s personal financial wealth and English fluency calls into doubt the rule’s likely alignment with its goal. “You’re trying to predict what’s going to happen in the future based on someone’s past behavior,” Chapin said. “The problem here is that the new public charge rule doesn’t necessarily meet that test.”

The demerits that are to be assigned to the immigrant include a determination that she is likely to rely on public benefits “for more than 12 months in the aggregate within any 36-month period,” beginning three years prior to the immigrant’s application to enter the U.S. or change her status under immigration laws, whether she suffers from a serious illness, and whether she is “uninsured and has neither the prospect of obtaining private health insurance, nor the financial resources to pay for reasonably foreseeable medical costs’’ resulting from her illness. 

Not all public benefits are covered by the Public Charge Rule. Included are most Medicaid benefits, the Temporary Assistance for Needy Families program, the food stamp program, housing assistance vouchers, rental assistance, public housing, state subsidies and all governmental cash assistance programs. The rule applies to immigrants who seek to become lawful residents of the U.S. They are to be denied a change in status if the “negative” factors that include covered benefits and the other criteria outweigh “positive” considerations.

The extent to which the public charge rule has caused Colorado residents to eschew Medicaid coverage to which they are entitled is unclear. Marc Williams, a spokesperson for the state’s Department of Health Care Policy and Financing, said in an email the state does not have data indicating Coloradans are choosing to remain uninsured as a result of the rule’s promulgation. Nevertheless, DHCPF officials have indicated that some state residents are, in fact, losing Medicaid coverage because of the rule. “[T]he Department is concerned about federal policies, such as public charge, that it believes are causing Coloradans in some communities to drop out of or not apply for Medicaid out of fear it will impact their or their family’s immigration status,” wrote DHCPF in a report to the General Assembly’s Joint Budget Committee in Dec. 2019. “[T]he Department has received anecdotal information from its provider community that the federal public charge policy is a contributing factor in the increase in uninsured Coloradans and deterring potential eligible families from applying for public assistance.” 

A recent paper by the Urban Institute backs up that concern. The May 2020 meta-analysis of other studies concluded that one out of seven immigrant families foreswore public benefits, including Medicaid, in response to the Trump version of the Public Charge Rule in 2019 and that one in four immigrant families in economic duress did so. Chapin said this reaction is particularly unfortunate for immigrant families because the rule may be irrelevant to their situation. “Public charge only applies to people who are seeking to adjust their status to lawful permanent residents,” she said. The Public Charge Rule also does not cause receipt of Medicaid benefits by children to hamper change in status applications and does not affect citizenship applications.

Ryan Thurber, an associate at Polsinelli who represents health care providers, said hospitals also suffer financial losses when people who are eligible for Medicaid do not sign up. “From a health care provider side, that means you have a larger percentage of people who are not covered for health care services,” he said. “That can be problematic for a number of reasons.” While Medicaid does not fully reimburse hospitals for their costs of care, he said, it is not nothing. “Sixty cents on the dollar or eighty cents on the dollar is still better than zero cents on the dollar.”

The 9th Circuit decision aligns with earlier opinions by the U.S. courts of appeals for the 2nd and 7th circuits. The injunctions ordered by the San Francisco-based appeals court apply to all of the states within its geographic jurisdiction and other states, including Colorado, that were plaintiff parties in the lower court decisions that were affirmed. The District of Columbia is also covered by the injunction.

A short dissenting opinion filed by Judge Lawrence VanDyke argued that a previous 9th Circuit decision demanded that the rule be found valid and pointed to a contrary decision by the 4th U.S. Circuit Court of Appeals and a dissenting opinion filed in the 7th Circuit case by then-Judge Amy Coney Barett.  

Other injunctions against the Public Charge Rule entered by other federal courts were stayed earlier in 2020 by the U.S. Supreme Court. Chapin thinks it is difficult to predict whether the justices will block this one, too. “I think the Trump administration would like them to, and will likely urge them to do so,” she said.

Whatever the outcome of the various courtroom battles over the public charge rule, it is at least possible, and even likely, that the incoming Biden administration will junk it. President-elect Biden and Vice President-elect Harris have said they oppose the Trump version of the public charge rule. “My best guess is that this rule is one that’s going to be revisited,” Thurber said.

The 9th Circuit decision is City and County of San Francisco v. Department of Homeland Security, No. 19-35914.

— Hank Lacey

Previous articleLawyers Call on Bar Associations to Condemn, Investigate Trump Legal Team
Next articleLegal Lasso: Supreme Court Rejects Election Challenge


Please enter your comment!
Please enter your name here