Public Charge and the Expressive Effects of Immigration Law

In early October, the Department of Homeland Security published a proposed redefinition of the Immigrant and Nationality Act’s “public charge” provision, stirring serious concern among health-care and immigrant advocacy groups.

The “public charge” provision of the INA currently allows immigration officers to deny green cards to legal immigrants who are likely to become “primarily dependent on the government for subsistence.”

DHS’s proposed rule would widen the scope of “public charge” to include any legal immigrant who uses cash or non-cash government benefits. In expanding the scope of the public charge inadmissibility determinations, DHS would empower immigration officers to consider immigrants’ current or prior use of programs like Medicaid and SNAP in evaluating applications.

(As a side-note, the public comment period for the proposed rule ends in a matter of days. Comments can be submitted through the federal register here.)

If enacted as a final rule, the redefinition of “public charge” would likely have a significant effect on immigrant health care utilization. News outlets have noted that the proposed rule, alone, has had a chilling effect on Medicaid participation among immigrants. Politico, for instance, reported that a number of agencies have seen drops of “up to 20 percent” in enrollment. Declines in participation are particularly troubling because Medicaid plays an important role in many immigrants’ access to care. Lawful immigrants are more likely to be low-income and less likely to receive health insurance through employers, and public insurance fills the gap.

It is also possible that the proposed rule could have expressive effects that deter health-care utilization among immigrants more broadly. In one of the courses I am taking at the Harvard School of Public Health, we learned about a study of health care utilization among Mexican-origin adolescent mothers before and after the Arizona legislature passed SB 1070. SB 1070, which empowered Arizona law enforcement to stop and question individuals under a “reasonable suspicion” that the individual was in the country illegally, was denounced by many as legalized racial profiling of immigrants.

The study showed that SB 1070 may have had reverberating social effects well beyond the sphere of law enforcement. Specifically, the authors found significant disparities in health care utilization among Mexican-origin adolescent mothers before and after the passage of SB 1070.

Strikingly, this effect was even stronger for study participants who were U.S. citizens. The authors suggest this finding shows that SB 1070 “is likely associated with heightened perceptions of fear and lack of community safety, even among Mexican-origin adolescent mothers who are US citizens.” They also point to the possibility that the U.S.-born mothers saw the law as a “moral violation” signaling a discriminatory social climate. Even though these study participants were not the intended subjects of the law, they changed their behavior in response to its message.

This study comports with theories of “expressive law.”

Scholars like Cass Sunstein have written about the messaging effects of laws on those subject to them. Laws and regulations like SB 1070 and DHS’s proposed public charge rule may send a broader statement to immigrants that they are not welcome to participate in the U.S. social system.

The expressive effects of the proposed public charge rule may thus change the health-seeking behavior even among those who would otherwise be unaffected by the substance of the rule.

 

Alexandra Slessarev is a 2018-2019 Petrie-Flom Center Student Fellow

Alexandra Slessarev

Alexandra Slessarev

Alexandra Slessarev is a 2018-2019 Petrie-Flom Center Student Fellow. She is a third-year JD/MPH student at Harvard. Her public health research interests include maternal and reproductive health, state-level Medicaid implementation, and the intersection of health and the environment. Prior to starting her dual-degree program, Alexandra spent a year working as a research assistant at the Bixby Center for Global Reproductive Health at the University of California, San Francisco, where she worked on several projects related to long-acting reversible contraception provision and education.

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