Monday, January 5, 2015

Immigrants and Public Benefits: A Brief History

At the AALS Annual Meeting, which was filled with a number of immigration programs, I participated in an "AALS Crosscutting Program on "The Fifty Year War:  Can Legislation Ameliorate Poverty?"  We had a great panel.  Here is the substance of my remarks, which focused on the non-inclusion of immmigrants in major public benefit programs:

My remarks focus on the exclusion of immigrants from the protections of the anti-poverty programs of the 1960S through to modern times.  Public benefit and other laws have not generally extended protections to immigrants, legal as well as undocumented.  This is because "aliens" historically have not been treated as full members of the national community.  It therefore is easy as a political matter for Congress, in the name of cost savings and reserving public benefits to "worthy" recipients, to carve immigrants out of legislative protections.  Importantly, exclusion of immigrants from benefit programs is often politically popular because of their racial and other differences.

Let me offer two examples.  For example, in Mathews v. Diaz (1976), the Supreme Court upheld a residency requirement imposed by Congress on lawful permanent residents for eligibility for a medical insurance benefit program.  In so doing, the Court emphasized the extremely limited constitutional rights of noncitizens:

“In the exercise of its broad power over naturalization and immigration, congress regularly makes rules that would be unacceptable if applied to citizens. . . . The fact that Congress has provided some welfare benefits for citizens does not require it to provide like benefits for all aliens.  Neither the overnight visitor, the unfriendly agent of a hostile foreign power, the resident diplomat, nor the illegal entrant, can advance even a colorable constitutional claim to a share in the bounty that a conscientious sovereign makes available to its own citizens and some of its guests.”

Mathews v. Diaz represents the Supreme Court’s modern endorsement of the judicially-created "plenary power" doctrine which recognizes that Congress and the Executive Branch possess “plenary power” over immigration and immigrants and their decisions in this realm enjoy general immunity from judicial review.  Its roots are in the 1880s-vintage Supreme Court decision in The Chinese Exclusion Case rejecting challenges to the law excluding Chinese  immigrants from American shores.

Another well-known example of the denial of public benefits to immigrants is California’s pProposition 187, a precursor to a plehora of state immigration enforcement laws in the early 21st century.   Passed by the voters in 1994, the measure denied public benefits to undocumented immigrants.  Following California’s lead, congress in 1996 enacted welfare reform, which denied eligibility to lawful, as well as undocumented, immigrants from major federal public benefit programs.

The truth of the matter is that undocumented immigrants have always been ineligible for most major federal and state public benefit programs.  A prominent recent example is the Affordable Care Act, which does not extend health care to undocumented immigrants.

The number of undocumented immigrants affected by the denial of public benefits has increased over time.  In the 1990s, an estimated 5-6 million undocumented immigrants lived in the United States.  Today, the best estimate is that double that number (11-12 million) live here.

As these examples demonstrate, Congress and the states often limit the eligibility of immigrants for public benefits.  In part, this is because of the negative popular conception of immigrants and their vulnerability (because noncitizens cannot vote) in the political process.  From this nation’s early days, restrictions limited the immigration of potential benefit recipients.  Many state and local governments in the 1800s sought to prevent the immigration of “paupers” into their jurisdictions.  Later, in 1882, Congress, in an early comprehensive federal immigration law, barred the entry into the nation of “any person unable to take care of himself or herself without becoming a public charge.”  This amounts to a means-based test for admission into the United States.  A few years later, Congress passed a law that offers an idea of the types of persons popularly equated with the poor:

[T]he following classes of aliens shall be excluded from admission into the United States . . .  All idiots, insane persons, paupers or persons likely to become a public charge, persons suffering from a loathsome or dangerous contagious disease, persons who have been convicted of a felony or other infamous crime or misdemeanor involving moral turpitude, polygamists. . .

A modern version of the “public charge exclusion” remains a part of the modern immigration laws.  Consular officials regularly invoke the exclusion to deny visas to noncitizens seeking entry into the United States.        

         Beyond the public charge exclusion, Congress frequently has restricted the access of undocumented immigrants to major federal benefit programs.  Many programs restrict eligibility to citizens, lawful permanent residents, and aliens “permanently residing in the United States under color of law.”

         A commonly-stated ground of concern with immigrant public benefit eligibility is cost.  The popular misconception is that immigrants as a group overuse public benefits and exhaust scarce resources.  The truth of the matter is that immigrants access fewer public benefits per capita than U.S. citizens.

         In the current political climate, immigrant benefit recipients often are lumped together with “criminal aliens,” an extremely unpopular sub-category of immigrants.  The link between “criminal aliens” and “illegal aliens” is strengthened by the fact that the undocumented often are characterized as lawbreakers. 

         In conclusion, the War on Poverty did not generally extend to immigrants, lawful as well as undocumented.  Immigrants and their allies historically have lacked the political power to ensure access to the social safety net.  However, demographic changes in California have led to more immigrant-friendly laws in the Golden State today.  Specifically, growing Latina/o political power has made a palpable difference.  It seems likely that similar demographic changes nationally will lead to public benefit programs more protective of all residents, including immigrants, of the United States.  Only time will tell.


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