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Fourteen states have filed an emergency application with the Supreme Court stating that they want to defend the public charge rule, which the Biden administration is refusing to defend in Court. I’m going to sound like a simpleton here, but I’m a little confused as to the debate about the rule. The reality is that the Biden administration is violating the law. You and I don’t get to do that, so why does the federal government?
I admit that my work for the past 34 years was mostly in state, not federal, law. Still, I did manage to pick up a few things. Here’s what I know: Under the Constitution, Congress passes the laws, which reside in the United States Code, and it’s the President’s job to oversee their enforcement.
Federal agencies, which are the vehicles by which the president enforces the laws that Congress enacts, can create rules describing the details of enforcing the laws. These rules are published in the Code of Federal Regulations or CFR. The CFR is an obscenely huge document (as of 2014, it had 175,268) that exists as a trap for the unwary. In theory, the CFR is merely a how-to manual for enforcing the laws. It’s the laws behind the manual that matter.
Unfortunately, in reality, Congressional laziness has resulted in barebones laws, with regulatory agencies filling in the blanks. As often as not, regulations that have nothing to do with Congress, have the force of law. That’s not quite the issue here, but every American should understand that most of the “laws” that control them are in fact regulations of dubious constitutional validity.
One of the laws that Congress passed is Section 212(a)(4)(a) of the Immigration and Nationality Act (aka 8 U.S.C. § 1182(a)(4)), which states that people who plan to move to the United States must prove that they have sufficient resources that they will not be dependent on American taxpayers to survive:
(a) Classes of aliens ineligible for visas or admission. Except as otherwise provided in this chapter, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States:
(4) Public charge
(A) In general
Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible.
There are some specific details, but that’s the gist, and some form or another of this requirement has been part of federal law since at least the 1880s (although Massachusetts was already requiring it in the 1600s). This is not a suggestion. It is the law. My parents had to comply with it when they came here in the 1950s.
The “public charge rule” is not the law. It is a guideline that the Trump administration put into effect based upon the law. As The Epoch Times explained,
Left-wing advocacy organizations have attacked any attempt to formally define “public charge” as being cruel and xenophobic, and aimed at drastically curtailing the flow of immigrants to the United States. But the lengths to which the new regulation will go remain to be seen.
In other words, leftists think it’s mean to deprive American taxpayers of providing instant welfare for people who come here illegally from other countries, and (and this is important) who are not escaping war or genocide. They just understandably prefer America to their own mismanaged and impoverished homelands.
Immediately after Trump put the rule in place, leftists sued and a lower court issued an injunction last year saying the rule wasn’t fair. The Supreme Court stayed that rule and will be reviewing it. The Biden administration refuses to defend the rule and the 14 states are saying that they would like to file briefs with the Supreme Court to support the rule.
But here’s where I’m confused: The rule is simply a reflection of the law. What’s really at issue here is that the Biden administration, by throwing open America’s southern border to all comers, the vast majority of whom will require welfare, is violating the law, including 8 U.S.C. § 1182(a)(4). I truly don’t understand the obsessive attention to rules, which are just reflections of legislative acts, when the Biden administration has thrown the entire Immigration Code out the window.
Presidential discretion gives the president some leeway in determining how to dedicate resources to enforcing properly passed laws. However, there is nothing in the Constitution or the laws of the United States that gives the President the right to break the laws.
Or maybe, when you’re President Biden or President Obama, or Hunter Biden, the laws just don’t apply to you. Keep that thought in mind when President Biden follows through on his promise to issue a series of Executive Orders that, I can guarantee you, will run afoul of the clear language in the Second Amendment.