The gnashing of teeth over the Supreme Court’s decision Monday to allow the Trump administration to “begin enforcing new limits on immigrants who are considered likely to become overly dependent on government benefit programs” shows that there is widespread confusion over the role of the judiciary.
The courts were never intended to be a super legislature where disputants who lose out in the political process can appeal for a rematch and ultimate victory. Public policy is supposed to be determined by the legislative branch of government and, to the extent that the Constitution and legislature allow it, the executive branch as well.
The judiciary simply has no role in formulating public policy, or at least is should not have such a role in the American system of government. “We the people” through our elected representatives, not nine unelected lawyers ensconced in Washington, D.C., are responsible for setting public policy.
Yet, media coverage has focused on the public policy implications of the Court’s ruling, with fulsome quotes from various left-wing interest groups who politick and litigate on behalf of open borders and unrestricted immigration. These advocates decried the allegedly negative effects of the Court’s ruling on immigrants.
“This rule is an all-out assault on legal immigration,” David Leopold, a former president of the American Immigration Lawyers Association, told the Washington Post.
“The public charge rule is the latest attack in the Trump administration’s war on immigrants,” [added] Stephen Yale-Loehr, an immigration expert at Cornell University’s law school.
But if the Trump administration’s new public charge rules are, indeed, an “all-out assault” in its “war on immigrants,” this is something that Congress can remedy. There is no need for the judiciary to intervene: that’s not the Court’s job.
Unsurprisingly, the hyperbolic rhetoric from partisans with a political agenda to grind doesn’t square with the facts, which are far more benign than these verbal volleys suggest.
“The policy would not apply to humanitarian programs for refugees and asylum recipients,” reports the Post. Moreover, an official with the U.S. Customs and Immigration Service
said the policy will not be applied retroactively to those who have used benefits in the past; it will apply only to those who receive taxpayer-funded benefits after the rule takes effect in mid-October.
the change will have little to no effect on those who already have permanent resident status who are seeking to become naturalized U.S. citizens. ‘Naturalization applicants are not subject to a new admissibility determination and therefore are not generally subject to public charge determinations,’ said the official, who spoke on the condition of anonymity because the official was not authorized to speak publicly.
So much for the “war on immigrants.” In truth, the new rules are a modest attempt to update the definition of a public charge, so that the definition accounts for both cash and non-cash federal assistance.
I say update because as social assistance programs have grown and expanded, they increasingly include many non-cash benefits such as Medicaid, food stamps, Meals on Wheels, the provision of housing, et al.
Yet, in the past, when determining who might be a public charge, these non-cash benefits were ignored. That might have made sense several generations ago when non-cash benefits were miniscule and non-existent. However, it makes little sense today, as non-cash benefits occupy an increasingly prominent place in the social safety net.
Partisans can debate the particulars of the Trump administration’s policy changes. The devil, as they say, is in the details. The Wall Street Journal, for instance, while applauding the Court’s decision, argues that there are real problems with the administration’s public charge rules.
Perhaps, but the appropriate place to hash out the issue is in the policy-making branches of government—in Congress, principally, and, to a lesser extent, within the administration.
Doing so is no doubt laborious and difficult. Legislating isn’t easy and policy-making can be hard. But that is what liberty and self-government demand: hard work and effort, argument, persuasion, and consensus. A free and proud people should not want it any other way.
Feature photo credit: iStockphoto.com via National Public Radio.