Public Charge Rule: A Step Backwards On Human Rights

Editor’s Note: Co-Editor Prof. Cindy Soohoo introduces us to her student Maria Ferroni who wrote this piece on the Public Charge Rule.

Last week, during the UN Human Rights Council’s review of the United States’ human rights record, many countries encouraged the U.S. to do more to ensure access to health care.  At the U.S.’s Universal Period Review (UPR), Luxembourg called on the U.S. to “guarantee essential health services for all.” After the U.S.’s last UPR in 2015, the Obama Administration pledged to expand access to health care. However, many policies adopted since then have undermined rather than expanded health care access. For instance, the new public charge rule adopted by the Trump Administration actively threatens the right to health for many low-income immigrants and their families.

The Trump’s Administration new public charge rule instills fear in immigrant families by placing a non-citizen’s immigration status at risk if they, or in some instances a family member, accept public benefits, including Medicaid. Under immigration law, if the U.S. determines an immigrant to be a public charge, the person can be refused admission to the U.S. or if they are already in the country, they can be denied the ability to adjust to Permanent Resident Status. Previously, a “public charge” was understood to be someone who is primarily dependent on the government for sustenance and only cash assistance and government funded long-term institutional care were taken into consideration under the public charge test. However, the new public charge regulation adopted last summer now allows immigration officials to consider public benefit programs such as housing assistance, Supplemental Nutrition Assistance Program (SNAP), and most Medicaid programs in making public charge determinations.

As a result of the new regulation, from 2018 to 2019, immigrant families avoided public benefits programs altogether because of their fear of risking future green card status. Since the rule was announced, 79,000 children have withdrawn from Medicaid insurance in California, New Jersey, Tennessee, Texas and Washington. Many immigrant families reported avoiding Medicaid Children’s Health Insurance Program, SNAP, and housing subsidies. Low-income immigrant families are especially reluctant to access public benefits, with 31.5% reporting that they avoided SNAP, Medicaid, and housing. 

During last week’s UPR, the U.S. failed to adequately respond to countries that raised concerns about healthcare access. Instead, the Trump Administration, reiterated the position promoted by the State Department’s recent Commission on Unalienable Rights that social and economic rights, such as healthcare, are subordinate to civil and political rights, such as freedom of religion. The Commission’s report has been widely criticized by human rights organizations.

While the Trump Administration will formally accept or reject recommendations from the UPR review this week, the Biden administration will ultimately be responsible for responding to the recommendations.