Sunday, April 4, 2021

Immigration Article of the Day: The Problem with Public Charge by Joseph Daval


The Problem with Public Charge by Joseph Daval, Yale Law Journal, Forthcoming


The United States has long excluded immigrants who are likely to become a “public charge.” But while the exclusion has remained unchanged, the nation has changed around it, further blurring its unclear meaning. As public benefits replaced poorhouses, Congress and the courts left the administrative state to reconcile public charge with evolving commitments to public welfare.

This Note seeks to identify the causes of public charge confusion by mapping the exclusion’s administrative history. A field guidance document from 1999 marks the only comprehensive effort to reconcile public charge with contemporary grants of benefits. Archived emails, memos, and drafts reveal the causes, scope, and character of the preceding interagency negotiations, as well as a yet-unidentified interagency relationship I term “zero-sum asymmetry,” whereby one agency completes its statutory mission at the expense of another’s. The guidance’s core compromise—a distinction between cash and supplemental benefits—mitigated but could not eliminate this dynamic. Reading the archived negotiations in light of public charge’s history, I offer a more compelling account of what public charge requires.


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