Last week was a rough one for President Donald Trump's anti-immigration agenda. Multiple federal courts across the country ruled against his executive order to build the wall and his public charge rule to stop low-income immigrants from coming to America. These rulings will no doubt be challenged in the Supreme Court. But for now, they aren't just a victory for proponents of pro-immigration policies—but also those who oppose unchecked executive power.
Trump had promised to build a "big, beautiful wall" on the southern border. However, he has unable to deliver because Mexico refused to pay for it as Trump insisted it would and Congress refused to appropriate funds even though he tried to twist its arm by shutting down the government last year.
This January, he again requested $5.7 billion for the "construction of a steel barrier for the Southwest border." But Congress granted him only $1.375 billion when it passed the 2019 Consolidated Appropriations Act (CAA). What's more, it stipulated that the funds were meant solely for "the construction of primary pedestrian fencing" in the "Rio Grande Valley Sector" and could not be used for building any other portion of the wall anywhere else. And then, just to ensure that Trump did not try to do an end run around its will, it added: "None of the funds made available in this or any other appropriations Act may be used to increase, eliminate, or reduce funding for a program, project or activity as proposed in the President's budget request for a fiscal year until such proposed change is subsequently enacted in an appropriation Act."
But Trump thumbed his nose at Congress and declared a national emergency to raid defense funds for his wall. He claimed that the rush of Central American migrants at the border had created a "security and humanitarian crisis that threatens core national security" and ordered the Department of Defense to hand over $6.1 billion of its money to build the wall—$2.5 billion from the Funding for Counterdrug Activities Section 284 and another $3.6 billion from the Military Construction Act Section 2808. However, the city of El Paso and Border Network for Human Rights sued.
U.S. District Judge David Briones went along with the administration's diversion of the $2.5 billion because he believed that the secretary of defense, who rubber-stamped Trump's order, had the statutory authority to hand over counter-narcotics funds as his disposal to other departments for fighting the flow of drugs, one of the rationales for building the wall.
However, he put his foot down over the diversion of the $3.6 billion. Briones pointed out that Congress had earmarked $20 million of that money for a military project in El Paso (which is why the city had standing to sue, contrary to the claims of the administration). Worse, Trump was funneling this money to build a wall in New Mexico. This violated the CAA in two ways: It eliminated funding for a program that Congress had expressly authorized and it built the wall in an area outside Texas's Rio Grande Valley, which Congress had expressly barred.
Briones, a Clinton appointee, refused to rule on whether the emergency declaration itself was unconstitutional or violated the Administrative Procedures Act, the other grounds for El Paso's lawsuit. Nevertheless his ruling is significant because it is the first one in the multiple lawsuits challenging the wall that evaluated the merit of the arguments presented. By contrast, this summer the Supreme Court stayed a lower court injunction that had barred the diversion of military funds for the wall because the plaintiffs in that lawsuit, Sierra Club and the Southern Border Community Coalition, had no standing to sue because they did not have a credible case of economic harm, the five conservative justices declared.
There are no guarantees, but The Volokh Conspiracy's Ilya Somin notes that Briones' narrow and carefully argued ruling might appeal to these justices. If it doesn't, future presidents will be emboldened to flout Congress' appropriation powers for their pet projects. For example, President Elizabeth Warren could cheerfully declare income inequality or climate change or lack of universal coverage a national emergency in order to divert all kinds of funds from all kinds of departments—Congress be damned. We might as well order a crown for the president now.
The administration's public charge rule isn't quite as egregious an abuse of executive power as the border wall emergency, but it's still pretty bad and three federal courts—in California, Washington state, and New York—ruled as much last week, preventing the rule from going into effect today as planned.
The rule would bar immigrants already in the country from obtaining green cards or citizenship and those outside the country from coming on certain kinds of visas if immigration officials determined that they were "likely to become a public charge." For those already in the country, the administration defined "public charge" not as someone who is primarily or solely dependent on government cash for survival (as has typically been the case) but as someone who has received designated public benefits for 12 months in the aggregate within a 36-month period—the so-called "12/36 rule."
Those who collect multiple benefits in a month would be counted as having received benefits for multiple months. And the benefits don't have to be cash benefits—as has been the standard—but anything from housing assistance to Medicaid. Nor do they have to meet any value threshold; any amount would do. In other words, as the U.S. District Court for the Northern District of California noted, someone receiving the equivalent of $182 over 36 months—or an average of 17 cents a day—could be branded a public charge and barred from upgrading their immigration status.
The court, in its 90-plus page ruling, traced the long history of the term "public charge" to show just how big a departure this interpretation represents. Congress originally invoked the term in 1882 to bar anyone who was a "convict, lunatic, idiot or any person unable to take care of himself or herself" and therefore would essentially become a ward of the state either because they had to be imprisoned or institutionalized on the taxpayers' dime. It did not mean to include anyone needing any public assistance because it levied on all passengers a 50 cent duty for an "immigrant fund" to help defray the cost of any diseases they'd picked up on their long journey in disease-infested ships. Congress subsequently included "paupers" into the mix of people who could be barred but neither courts nor regulators took this to mean able-bodied poor folks capable of working, especially if they had relatives and friends in the country. "Absent some particularly-identified negative factor" such as having a debilitating disease "those who appear generally capable and willing to work," the California court pointed out, were generally assumed "not likely to become public charges" regardless of their income status.
In 1990, Congress revised the public charge law to ditch the "paupers, professional beggars, or vagrants" language because it had become antiquated and jarring to modern ears and replaced it with "public charge" as a general category of people who could be barred. But the long history of the term made it clear that Congress did not mean to exclude poor people who occasionally availed of some public benefits.
If there is any doubt about this, the California court noted, it should be put to rest by the fact that Congress repeatedly declined to define "'public charge' to include those who receive certain in-kind benefits." Indeed, in 1996, the last time Congress dealt with this issue, it even considered something akin to Trump's 12/36 rule wherein the use of certain means-tested benefits for 12 months would qualify an immigrant as a public charge. But it rejected it after President Bill Clinton protested that this would go "too far in denying legal immigrants access to vital safety net programs."
"This exchange, which deals with the precise issues presented by this litigation, is particularly instructive not because of the president's words," the California court ruled, "but because of Congress' response to those words—it intentionally considered and rejected a definition similar to what the Rule now proposes." Indeed, the administration is ignoring that it is "Congress, not the President, who is responsible for writing legislation," it said.
The California court's ruling—as well as that of the other courts—applies only to the Department of Homeland Security rules that govern visa updates of immigrants already in the country, not the Department of State rules that apply to immigrants outside. So it is unclear whether the latter will still be implemented today.
However, what makes Trump's rule even more infuriating is that it would basically slash family-based immigration while admitting only the select, high-income few after Congress explicitly declined to do so. Indeed, Trump proposed such a scheme in the same bill in which he requested funding for his wall in exchange for legalizing Dreamers—those who were brought to this country as minors without authorization—but Congress turned him down. In other words, just as with his emergency declaration to procure wall funding, his public charge rule is trying to accomplish by executive means what he couldn't through legislative ones.
One does not have to be a fan of immigration or welfare or immigrants getting welfare—just of respecting checks and balances and the Constitution's delegation of powers among the various branches of government—to understand that this is not right.
Postscript: Over at National Review, Robert Verbruggen dismisses the California court's reasoning along with that of other courts as the handiwork of "liberal judges." He argues that Congress has refused to offer a clear definition of public charge but the U.S. Code has handed "astonishingly broad power" to consular officers and immigration bureaucrats in the executive branch to define the term. Hence, the Trump administration is well within its rights to write the rules of admissibility as it sees fit and it is the courts that are overstepping.
It's an interesting argument.
However, it forgets that conservatives rejected this exact rationale when President Barack Obama used his executive authority to temporarily legalize Dreamers and their parents through the DACA (Deferred Action for Childhood Arrivals) and DAPA (Deferred Action for Parental Arrivals) programs. They argued that regardless of the vast powers that Obama may have to implement these programs, he should be guided by longstanding norms—although, as I pointed out at that time, Obama's actions were justifiable even by that standard given that previous presidents had made similar grants to similar numbers of immigrants.
More to the point, Verbruggen overestimates the latitude granted to the executive branch by the U.S. Code to make the public charge determination. It is true that the code's first clause notes that the attorney general and consular officers can deny adjustment of status or admission to any alien they fear could become a public charge. But then, in the very next clause, it lists the kinds of factors that they "shall" at a "minimum consider" to make their determination, including the alien's age, health, family status, assets and resources, education and skills. This sounds awfully like the "totality of circumstances" test that the Supreme Court articulated in its 1915 Geigow v. Uhl ruling. That ruling, which has guided courts and administrative agencies, barred immigration authorities from keeping out people who are poor but otherwise capable of working.
Congress has notoriously given the executive vast authority on immigration enforcement. But it is not so broad that the president can totally ignore its explicit will.
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