White House Imposes “Public Charge Rule” but 1982 Supreme Court Decision Blocks Efforts to Deny Public Education to Undocumented Children

On the front page of yesterday’s NY Times appeared, How Stephen Miller Seized the Moment to Battle Immigration, and yesterday’s Washington Post featured, The Ghostwriter: The Adviser Who Scripts Trump’s Immigration Policy.  These stories profile one of President Donald Trump’s most influential advisers—a sinister, skilled and influential manipulator of policy, other staff, and the President himself.

Miller is described by the Post‘s Nick Miroff and Josh Dawsey as a deeply involved in the “immigration restrictionist movement.” For the NY Times, Jason DeParle describes Miller as “a speechwriter, policy architect, personnel director, legislative aide, spokesman and strategist.  At every step, he has pushed for the hardest line. When Mr. Trump wavered on his pledge to abolish protections for 800,000 so-called Dreamers—people brought illegally to the United States as children—Mr. Miller urged conservative states to threaten lawsuits. Mr. Trump then canceled the protections. When the president later mulled a deal to restore them, Mr. Miller stacked the negotiations with people who opposed the move, leading Mr. Trump to abandon compromise and rail against immigrants from ‘shithole countries.'”

Miller is described as skilled at working behind the scenes to manipulate staff at all levels including the President himself, but he has worked to keep a low profile. This week’s press coverage likely results from a new executive regulation—the “public charge rule”— finalized this week to promote Miller’s obsession: making America white again. The rule will take effect in mid-October.

Neither profile focuses on the effect of Miller’s policies on children—neither on Miller’s willingness to punish children for their parents’ border crossings, nor on Miller’s efforts more broadly to discourage immigration altogether by violating children’s rights or even isolating them in cages in detention centers at the border.  But the Washington, D.C., child advocacy organization, First Focus explains the potentially devastating implications of the new public charge rule on the children in immigrant families. The public charge rule will affect later considerations for citizenship qualification when immigrants eventually seek to acquire a green card or become a U.S. citizen. The new rule applies to legally documented immigrants as well as the undocumented: “The Trump administration has finalized a rule that will expand the definition of a public charge when determining eligibility for individuals applying for admission to the U.S. or for adjustment of status to that of lawful permanent resident (green card).  This expansion will allow for the consideration of an applicant’s use of services such as Medicaid, the Supplemental Nutritional Assistance Program (SNAP), Federal, State and local cash assistance programs such as Temporary Assistance for Needy Families (TANF) and subsidized housing vouchers… The rule is expected to go into effect on October 15, 2019.”

For Bloomberg News, reporters Jennifer Jacobs and Justin Sink succinctly summarize the public charge rule: “Any immigrant who has used Medicaid, public housing assistance or food stamps for more than 12 months over a 36-month period can be denied permanent resident status under the new rule.”

First Focus explains how the new rule will possibly affect children’s eventual right to citizenship when, by no choice of their own, their parents use public services: “In the rule, DHS (the Department of Homeland Security) recognizes that children are not making decisions to apply for benefits themselves, yet they (at HHS) make no exemption for those who fall under a head of household. Alarmingly, they go out of their way to argue that there is no need for a child to have the capacity to understand the consequences of these actions.  While children are specifically exempt from Medicaid, other benefits such as the Supplemental Nutrition Assistance Program (SNAP) or federal, state and local cash assistance programs such as Temporary Assistance for Needy Families (TANF) will be used against children when seeking adjustment of immigration status… When it comes to housing assistance, there is no way to separate benefits to parents and their children who live in the same home.”  The worry is that parents will fail to seek Medicaid coverage for themselves, and thereby threaten their children’s security, that children will go hungry or lose the right to free and reduced price lunch at school, and that expanding the public charge rule “will have a broad chilling effect and will deter all immigrant households from accessing any essential services out of fear it will negatively impact their immigration status.”

In another respect, however, the rule of law has clearly blocked Stephen Miller’s efforts to discourage immigration by threatening and punishing children.  Miller’s strategy this time was to deny public education to the children of undocumented  immigrants.  Bloomberg‘s Jacobs and Sink reported on Saturday that Miller has pursued a several years’ campaign within the administration to deny K-12 public school education to the children of undocumented immigrants: “Trump senior adviser Stephen Miller had been a driving force behind the effort as early as 2017, pressing cabinet officials and members of the White House Domestic Policy Council repeatedly to devise a way to limit enrollment…. Starting in late 2017, Miller pressed hard to find a way to limit undocumented immigrants’ access to public services, including education…. That effort included consideration last year of a guidance memo issued by the Education Department that would tell states they had the option to refuse students with an undocumented status to attend public schools from kindergarten through high school.  A memo was never issued.. The White House’s push was dropped because members of the administration determined the plan would violate Plyler v. Doe, a 1982 Supreme Court case that prohibited states from denying free public education based on their immigration status.”

Newsweek reporter Matt Keeley describes the 1982 decision in Plyler v. Doe: “The Court ruled in a 5-4 decision that this policy was in violation of the Fourteenth Amendment, which says that states cannot ‘deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.'” Keeley quotes from Justice William Brennan’s majority decision in Plyler v. Doe: “The children who are the plaintiffs in these cases are special members of this underclass…. Those who elect to enter our territory by stealth and in violation of our law should be prepared to bear the consequences, including, but not limited to, deportation. But the children of those illegal entrants are not comparably situated… Even if the State found it expedient to control the conduct of adults by acting against their children, legislation directing the onus of a parent’s misconduct against his children does not comport with fundamental conceptions of justice.”

Justice Brennan’s words perfectly describe why many American’s are so alarmed by the immigration policies emanating from the Trump administration and, apparently, designed by Stephen Miller—separation of young children and their parents at the border—the filthy and crowded detention centers for immigrant children—the failure to ensure protection for Dreamers—and now the public charge rule. Not only are these policies examples of cruelty, but also: “Legislation directing the onus of a parent’s misconduct against his children does not comport with fundamental conceptions of justice.”

One thought on “White House Imposes “Public Charge Rule” but 1982 Supreme Court Decision Blocks Efforts to Deny Public Education to Undocumented Children

  1. There is no level of cruelty that Stephen Miller won’t stoop to in order to punish and prevent people of color from coming to this country. I pray the nightmare will end in 2020. As always, Jan, thanks for such extensive research on the topic at hand. You are much appreciated.

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