Judge Skewers Rule Change on Immigrants Receiving Welfare

MANHATTAN (CN) – In arguments that stretched more than four hours, a federal judge erected hoop after hoop for government lawyers to jump through in defense of a rule set to take effect next week that would ensure that green cards and visas go only to the most financially secure of immigrants.

Hypothesizing about one immigrant with a low credit score, another in public housing and even one who used a wheelchair, U.S. District Judge George Daniels grilled the Justice Department about what immigrants would not qualify for permanent residence under the so-called “public charge” rule unveiled in August.

Justice Department attorney Ethan Davis refused to rule out any of these restrictions.

“I think a low credit score is an indication of someone who has made decisions that are not necessarily financially sound,” Davis said.

“Poor people are likely to become a public charge,” the judge shot back.

Jonathan Hurwitz, an attorney representing the immigrant rights group Make the Road New York, noted at the hearing that Congress has twice passed laws specifying that immigrants can claim certain benefits, most recently through the Welfare Reform Act.

“That is not consistent with the legislative history,” Hurwitz said of the Trump administration’s rule change.

Seeming to agree, Judge Daniels remarked at one point: “This isn’t what’s been applied for 150 years.”

The point is a crucial one for the rule’s opponents, who note that the executive branch is not tasked with writing laws but enforcing them.

“You have to give me some sort of rational basis,” Daniels chided the Justice Department’s Davis, referring to federal law forbidding “arbitrary and capricious” government actions.

“Congress isn’t passing this rule,” the judge emphasized. “Congress isn’t changing this rule. You’re changing this rule.”

Daniels previously threw out a lawsuit alleging the president’s business entanglements around the world violate the emoluments clause of the U.S. Constitution, but today’s hearing suggests that the Trump administration’s luck in Daniels’ court may be ebbing. 

Like the emoluments litigation, which the Second Circuit revived last month, the new immigration suit in his court presents its own high-profile constitutional challenge.

Attorney Gita Schwarz with the Center for Constitutional Rights called the rule “draconian” and aimed to “decrease the presence of non-white immigrants in the United States,” citing “openly bigoted statements that have been made by the Trump administration.

Daniels signaled that he would try to issue a ruling in the latest case before the end of the week.

The so-called public charge rule is set to take effect on Oct. 15.

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