Trump is Remaking Immigration Policy. But in a Different Way Than You Think.
How the machinery of the administrative state is being quietly used to enact significant social change
There are many ways a country demonstrates its values. Most obviously, we embody them in our daily interactions. Values are also expressed in the statements of our political leaders, or embedded in the laws they pass. Less obviously, values are expressed in government processes. It is precisely here, through the machinery of administrative bureaucracy, where Trump has most subtly engineered significant social change. Since 2016, the Trump administration has been turning the American state into a hostile and Kafkaesque bureaucracy for immigrants of color.
The Public Charge Principle
Take the visa application process. The Trump administration dusted down and put back into work the public charge principle — intended to exclude immigrants who may become dependent upon the state — with the effect of excluding immigrants from countries with predominantly non-white populations.
In 2016, just 1,033 visa applications were denied on public charge grounds. But its use has mushroomed under Trump, increasing to 12,179 denials in just the last 10 months. While poor people apply from all over the world — after all, part of the American dream is to come to the U.S. to climb the ladder of opportunity — the public charge denials are not widely distributed. Indeed, just six countries make up 94 percent of the denials. The six countries — Haiti, Bangladesh, India, Dominican Republic, Pakistan, Mexico — are all countries where the population is largely non-white. Mexico, by itself, makes up 44 percent of the public charge denials.
While Trump supporters complain about “deep state” resistance, the public charge principle shows how bureaucracies can be quite responsive to political direction, albeit somewhat slowly and requiring formal administrative steering.
With the State Department, the number of public charge denials were already increasing under Trump, but a 2018 revision of its Foreign Affairs Manual cemented this trend. The new manual redefined what factors to weigh in deciding whether someone will become a public charge. Most crucially, it directed State Department officials to give less weight toward certain types of evidence such as affidavits of financial support from a U.S. sponsor. Thus, slowly—clunkily, even—but surely, the wheels of bureaucracy are redirected.
A look back at history should give us pause about using the public charge principle.
Public Charge in American History
During the 1930s, the principle was enforced rigorously. In sharp contrast to today, policymakers used it as they faced a cratering economy. As Pamela Herd and I write in our book Administrative Burdens: Policymaking by Other Means, the public charge law hurt Jewish refugees from Austria and Germany, who struggled to meet paperwork requirements and demonstrate resources as they tried to leave a country that was confiscating their wealth. While the U.S. offered a quota of around 27,000 slots each year for such immigrants between 1932 to 1938, the vast majority of that quota was left unfulfilled. Only about 100,000 German and Austrian Jews made it to the United States between 1933 to 1944, a fraction of those who could have been saved under a less burdensome process.
The history of the public charge policy can be traced to the Chinese Exclusion Act of 1882. Anti-immigrant voices championed the policy as a way of excluding certain types of immigrants. Such sentiments were relatively mainstream at the time, even among progressives. While the target groups are different, the language was eerily similar to white nationalists today, using terms such as “displacement” and “invasion.” As Thomas Leonard details in Illiberal Reformers, Francis Amasa Walker, the President of the American Economic Association and MIT, argued that forcing immigrants to pay a bond of $100 would succeed in excluding a growing wave of immigrants from places like Italy, Hungry, Austria, and Russia, whom he characterized as “beaten men from beaten races, representing the worst failures in the struggle for existence.”
Trump’s Weaponization of Administrative Burdens
The Trump administration wants to dramatically expand the public charge principle in two ways. First, it wants to apply it to lawful residents who are already in the U.S., not just immigrants who are applying to come to the U.S. It also wants to redefine the principle by retroactively expanding the temporal horizon of applicability, going from being currently dependent on welfare services to having used them in the past. If you are an immigrant who has used SNAP (food stamps) or Medicaid, to use just two examples, you would be penalized. The policy would apply to those seeking green cards, and other types of visas.
Poorer immigrants would be penalized in other ways. Applicants would lose out if they could not demonstrate income and assets of 250 percent of the federal income threshold. Again, this would also fall heaviest on immigrants from countries where the majority of the population is non-white. One analysis found that the new standard would exclude about 71 percent of current legal non-citizen residents from Mexico and Central America, 69 percent of Africans, but just 36 percent of U.S. legal residents from Europe and Canada.
In addition to being cruel, such policies are counterproductive. Programs like SNAP and Medicaid not only reduce poverty and provide access to healthcare, they are also investments in human capital. For example, children who receive food stamps do better at school, and are more financially successful than poor kids who do not receive such help. Kids who are given Medicaid benefits also have better economic outcomes later in life.
What kind of country tells parents they need to choose between citizenship and helping their kids? As a basic matter of fairness, what kind of country retroactively shifts the criteria for what it takes to join, telling you that a benefit you might have used years ago is suddenly disqualifying?
The public charge policy is just the tip of a broader strategy: having failed to limit immigration via legislative means, the Trump administration is looking to make the process so onerous that immigrants are unable to escape the bureaucratic maze. Part of the strategy includes deliberately limiting resources to create more delays. For example, the U.S. Citizenship and Immigration Service is planning to shutter many overseas offices, meaning there are fewer people who are easily accessible to hear an immigrant’s case. One former U.S. Ambassador noted: “The service currently being provided is awful, and I can only imagine it’s going to deteriorate further with these office closures.”
The Trump administration has also created backlogs at border processing centers, by limiting the number of applicants seen in a given day, a practice known as “metering.” As a result, migrants are faced with potentially months-long waiting periods in unsafe conditions before they can be seen by U.S. officials. Street-level bureaucrats have been given more discretion to hurt, but not to help. A new policy allows USCIS officials the right to outright deny an application if there is an error or if all of the information is not provided, rather than seek to resolve the problem or give the applicant a chance to fix it.
Almost immediately after Trump became president, applicants had to provide more information. This sounds innocuous, but as the demands for documentation pile up, the net effect is to overwhelm the applicant. The strategy is not new. For example, in a State Department memo from 1940, Assistant Secretary of State and nativist Breckinridge Long, coolly described how to use administrative burdens to block refugees:
We can delay and effectively stop for a temporary period of indefinite length the number of immigrants into the United States. We could do this by simply advising our consuls to put every obstacle in the way and to require additional evidence and to resort to various administrative devices which would postpone and postpone and postpone the granting of visas.
What Long understood, and his latter day counterparts like Stephen Miller have learned, is that bureaucracy can be built to break people’s wills.
Bureaucratic processes are complex and opaque, but once you understand how to use the levers, these qualities are actually an advantage, since you can achieve your goals largely out of sight. The administrative architecture can be designed to circumvent public and legislative accountability. At a time when Trump has failed to make any significant progress in passing immigration reform legislation in Congress, he is instead using the administrative state to make it harder for poorer non-white immigrants to come to the U.S. or become permanent residents.
American history is a constant battle between the values it proclaims and those it implements. The words written on the Statue of Liberty remain uplifting, an articulation of the possibility and promise of America:
Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
But the welcoming ideals of those words are very different from the realities of the U.S. government that the Trump administration is imposing upon immigrants.
Donald Moynihan is a professor of public policy at Georgetown University and a visiting professor at the University of Oxford. He is the author of several books and his work has appeared in The New York Times, The Washington Post, Bloomberg Opinion, and elsewhere. Follow him on Twitter @donmoyn.
