PHOENIX — Attorney General Mark Brnovich wants to defend a Trump-era rule that was designed to deny immigration “green cards” to those at the bottom of the economic ladder.
The move comes as the Biden administration has decided not to fight a ruling by the 9th Circuit Court of Appeals which found the policies of the former president illegal. That potentially returns the situation to the way it was during the Clinton administration, when the economic tests for admission — and getting what is formally known as a Permanent Resident Card — were much more lax.
“Invalidation of the Public Charge Rule will impose injury on the states,” Brnovich said in asking the appeals court to let him intervene in the case. He estimated the cost of abolishing the 2019 rule at $1 billion a year nationally.
Brnovich, in explaining his move, said there needs to be some review of expanded public assistance benefits at both the state and federal level.
“Our system has been very taxed because of COVID and everything else that’s been going on,” he told Capitol Media Services.
“I think that now is not the right time to increase the amount of people that are getting Medicaid, public assistance benefits,” Brnovich said.
“I think that we need to take care of people that are here legally before we start giving benefits to people who just recently arrived here and don’t have legal status,” Brnovich said. “I’m trying to protect Arizona taxpayers.”
The ability of immigrants to support themselves has always been a part of the consideration when determining if someone who enters this country legally should be granted permanent status.
The Trump rule was designed to deny that status to people already here legally if it was determined they are likely to use government programs like food stamps and subsidized housing.
That would be determined on a variety of factors ranging from income to the ability to speak English. And the rule would apply on the basis of the chance of needing benefits at some point in the future, not whether anyone actually is receiving them.
One way of accomplishing that was to use income as a much stronger indicator of whether the applicant is likely to become a burden and, therefore, ineligible.
One section says that U.S. Citizenship and Immigration Services “will generally consider 250% of the federal poverty guidelines to be a heavily weighted positive factor in the totality of the circumstances.” In essence, that suggests anyone above that level — $66,250 for a family of four — would have little problem qualifying.
At the other end, it says the absolute minimum for even being considered will be in the neighborhood of half that much.
“More specifically, if the alien has an income below that level, it will generally be a heavily weighted negative factor in the totality of the circumstances,” the measure reads.
In a December ruling, the 9th Circuit called the Trump rule “inconsistent with any reasonable interpretation” of the law on immigration.
The judges said the law has always been interpreted to mean long-term dependence on government support and not to encompass the temporary need for non-cash benefits. They also said the change failed to consider the effect on public safety, health and nutrition as well as the burden placed on hospitals and the vaccination rates in the general public.
Then there’s the fact the Trump rule sought to introduce a lack of English proficiency into the decisions “despite the common American experience of children learning English in the public schools and teaching their elders in our urban immigrant communities.”
Finally, the court said the Trump administration “failed to explain its abrupt change in policy” from the 1999 guidelines.
That sent the case to the U.S. Supreme Court, as other appellate courts have issued contrary rulings.
But here’s the thing: The Biden administration has decided not to defend the rule and, as of last week, effectively rescinded it.
So Brnovich wants to intervene “to offer a defense of the rule so that its validity can be resolved on the merits, rather than through strategic surrender.”
The attorney general said he sees it from a strictly financial perspective.
He noted the appellate court, in its ruling, acknowledged that the Trump rule predicted a 2.5% decrease in enrollment in federal programs and a corresponding reduction of Medicaid payment nationwide of more than $1 billion.
Then there are other programs like Temporary Assistance for Needy Families and food stamps, both of which require the state to pay at least the administrative costs.
The maneuver puts him at odds with Gov. Doug Ducey.
He criticized the Trump administration in 2019 when it proposed the rule, saying the federal government should focus more on criminal activity, drug cartels and human traffickers.
In discussing the issue of who would be able to get permanent resident status under the new rules, the governor said this country needs more than those who already are financially sound.
“It’s not only people at the graduate level and the Ph.D. level who we need,” Ducey has said. “We also need entry-level workers and people who can work in the service economy.”
The governor said it’s about opportunity.
“I want to see people who will climb the economic ladder,” he said. “I think many of us have a family story similar to that.”
And that, said Ducey at the time, goes back to his preference for a more balanced approach to immigration than what Trump proposed.
“We have the ‘haves’ and the ‘soon-to-haves,’” he said. “And both of them a part of proper immigration reform.”
The court has not set a date to decide on whether to let Brnovich intercede.
Brnovich is not alone, with Republican attorneys general from Alabama, Arkansas, Indiana, Kansas, Louisiana, Mississippi, Montana, Oklahoma, Texas and West Virginia also signing on to his legal brief.
