The Washington Post reports on August 6 that two federal appeals courts have split on whether to uphold a nationwide order issued by a New York federal district judge banning enforcement of the pernicious Trump-Miller Public Charge rule, including the notoriously difficult and complex Form I-944, nationwide. See:

Court sides with Trump administration effort to impose 'public charge' rule.

(Sorry, I do not have a link - Please use Google to access.)

According to The Post, the 4th Circuit Court of Appeals ruled in a 2-1 decision that. regardless of whether a court agrees with the rule or not, its within the power of the executive branch's control over immigration to issue this rule. The dissenting judge disagrees, pointing out that Congress, not the executive has the power to make immigration laws, and that Congress has never approved a law as sweeping as this one.

Immigration opponents argue that Public Charge has been on the books since 1882, But it has never previously been interpreted to have the hugely expanded scope that Stephen Miller's regulations purport to give to it. Moreover, even in its more limited previous versions, the Public Charge rule has always been associated with anti-immigrant bigotry, first with the 1840's Know-Nothing movement, then with the 1880's exclusion laws, and, later with 1930's policies that denied visas to refugees trying to escape Nazi persecution, many of whom later died in concentration camps.

In contrast to the 4th Circuit's decision , the 2nd Circuit appeals court has upheld the New York District Court's injunction against this pernicious rule, which is clearly meant to revive the the malevolent spirit of the 1924 immigration act. That law, which Adolf Hitler praised in his Mein Kampf, manifesto, banned all immigration from Asia, Africa the Middle East and most immigration from Southern and Eastern Europe.

But even though the 2nd Circuit agreed with the District Court in blocking the new Trump/Miller Public Charge rule, the Circuit Court'd order the only applies in 3 states: New York, Connecticut and Vermont. It is not clear, therefore whether the ban still applies in the rest of thee US.

Moreover, when there is a conflict between two different Circuit Courts, as is the case with Public Charge, the Supreme Court often make a final decision as to which Circuit Court's decision to follow. In the case of the new Trump-Miller Public Charge rule, the Supreme Court as already allowed it to go forward in tow previous decisions - one in January, 2020 and one in April, 2020. Will a Supreme Court majority made up of Trump-supporting GOP Justices, two of whom, Gorsuch and Kavanaugh were appointed by Trump himself, vote against him on an issue that is so central to his anti-immigrant agenda - and to his entire presidency?

In Part 2 of this comment, I will show why, of all the actions that Trump and his Grand Inquisitor Stephen Miller have taken to reduce or eliminate legal immigration to America, the new Public Charge rule, including Form I-944, is the most dangerous and destructive, not only to the nation's immigration system, but to our democracy.

To be continued:

Roger Algase
Attorney at Law