In this column, Due Diligence, erstwhile attorney and GQ staff writer Jay Willis untangles the messy intersection of law, politics, and culture.
As the Trump administration rolls out a new set of policies to implement its anti-immigrant agenda, state governments are taking to the court system to fight back. On Monday, the attorneys general of California, Maine, Pennsylvania, Oregon, and the District of Columbia filed for a preliminary injunction to stop the White House from implementing its "public charge" rule, which would make it harder for lower-income immigrants to obtain admission to and citizenship of the United States. A coalition of 19 states and Washington, D.C. filed a separate lawsuit to scuttle a proposed rollback of the Flores Agreement, which limits how long the government may keep immigrant children in its custody. Under the new rule, federal immigration officials could detain children indefinitely.
Existing regulations allow authorities to consider whether a person seeking a visa or green card is likely to become a "public charge" in the future. A history of Temporary Assistance for Needy Families—the modern version of "welfare"—or other forms of cash assistance, for example, can negatively affect one's application.
The administration has proposed to expand the list of assistance types that might make one a "public charge," adding receipt of Medicaid and various forms of food and housing assistance. The new rules would build in an income evaluation to the public charge test, too. For a family of four, annual earnings of less than $32,188—125 percent of the federal poverty level—would be a negative factor. By contrast, that same family of four would have to earn around $64,000, which is 250 percent of the federal poverty level, for their income to be a "heavily-weighted positive factor." Factors like limited English proficiency, by contrast, would make an applicant more likely to be deemed a public charge candidate.
As the motion notes, Medicaid and federal food assistance are entitlement programs, which means anyone who qualifies has a legal right to receive them. People across the country, regardless of their immigration status or nationality, depend on those benefits to care for themselves and their families. Imposing them as a hurdle in the visa application process could force immigrants to make a terrible choice: between maximizing their chances of approval on the one hand, and ensuring that their children have food to eat on the other. And although the rule's alleged purpose is to "promote self-sufficiency," the plaintiffs write, "it penalizes use of programs that support achieving that goal." It is difficult for lower-income people to eventually become self-sufficient if they lack access to affordable health care or groceries in the meantime.
The Flores Agreement, meanwhile, sets out limits on how—and for how long—the government can detain immigrant children. Crafted in 1997 to settle years of litigation between immigration advocates and the federal government, it requires officials to house children in state-licensed care facilities, and provide them with food and water, toilets and sinks, and adequate supervision. It also requires them to "promptly" reunite minors with family members; the administration, of course, has prioritized doing the opposite. (In April, Trump called the Flores Agreement "a disaster for our country" and ripped "Judge Flores" for signing off on it. The agreement, in fact, is named for Jenny Lisette Flores, one of the plaintiffs in the Supreme Court case.)
The proposed amendments to the Flores Agreement, as the Department of Homeland Security admits, actually terminate the existing agreement altogether. In its place, the government would create new regulations that allow it to detain children indefinitely, instead of the current 20-day limit. It would also end the obligation to house children in state-licensed facilities and instead allow DHS to license itselffno. As the lawsuit notes, given the government's "well-documented failures in this area" of late, eliminating external oversight mechanisms is a potentially troubling result.
Although these lawsuits target different immigration policies, they each get at the same basic idea: By implementing xenophobia as immigration policy, federal government is getting in the way of states' obligation to enforce their laws. "As administrators of public benefit systems, the States will bear the burdens associated with reduced access to healthcare, housing, and nutrition, and will suffer irreparable harm to their sovereignty and public health," the plaintiffs seeking the public charge injunction write. If fewer Californians are getting enough food or living in adequate housing, in other words, the state is on the hook for the consequences of the Trump administration's policy choice.
The second case relies on a similar argument, which is that rolling back the Flores Agreement would interfere with the "police power"—the authority, traditionally reserved to state governments, to ensure the health, safety, and welfare of those within their borders. State licensing requirements are the primary mechanism for ensuring that residential facilities meet basic standards of care. "The harm children and their parents will suffer as a result of the Rule will be borne in part by the States and local communities that will welcome them as new residents," the attorneys general warn.
Put differently: The administration wants to lock people up, for the explicit purpose of trying to deter would-be immigrants from even trying to come to the United States. The states, however, are the ones stuck paying the price.
Between talk-radio blather and election-season bravado, it's easy to have an opinion about immigration, and easier to forget that people—actual people—pick our food. Now and then we might glimpse them out the car window, but few of us realize that what we eat depends on them, and fewer still have any idea what their world is like. Jeanne Marie Laskas spends a season with a group of these nomads—the constant wanderers who put fruit on our table.
Originally Appeared on GQ