https://www.law.com/newyorklawjournal/2019/08/27/new-challenge-to-trumps-public-charge-immigration-rule-says-it-weaponizes-social-safety-net/?kw=New%20Challenge%20to%20Trump%27s%20%27Public%20Charge%27%20Immigration%20Rule%20Says%20It%20%27Weaponizes%27%20Social%20Safety%20Net&utm_source=email&utm_medium=enl&utm_campaign=breakingnews&utm_content=20190827&utm_term=nylj

A new lawsuit filed in Manhattan Tuesday against the Trump administration’s “public charge” rule claimed the new directive “was driven by unconstitutional animus against nonwhite immigrants,” and exceeded the authority of the executive branch of the federal government.

The new challenge was filed in the U.S. District Court for the Southern District of New York by attorneys with the Legal Aid Society, Center for Constitutional Rights, and Paul, Weiss, Rifkind, Wharton & Garrison.

“We will not allow the Trump Administration to punish our clients and all immigrant New Yorkers by weaponizing the safety net that is there for all of us in hard times,” said Janet Sabel, CEO and attorney-in-chief at the Legal Aid Society.

The argument in the new suit is not unlike the other challenges that have been brought against the rule since it was announced earlier this month. A number of federal challenges have been filed against the measure, including one from New York Attorney General Letitia James.

In a 115-page lawsuit filed Tuesday, attorneys argued that the U.S. Department of Homeland Security essentially wasn’t legally allowed to promulgate the rule. That power, instead, rests solely with Congress, the suit claimed.

Attorneys pointed to public comments made by Trump administration officials about the rule to support their point. Ken Cuccinelli, the current director of the U.S. Citizenship and Immigration Services, said the rule would “reshape” the experience of immigrants and a senior adviser to Trump has said the change will be “transformative,” the suit said.

That might be true, the attorneys argued, but the Constitution doesn’t afford the executive branch that kind of power.

“Defendants fully understand and intend the dramatic change the Rule will make to U.S. immigration law,” the lawsuit said. “They are right. But under the Constitution, it is up to Congress, not the Executive, to ‘transform’ or ‘reshape’ U.S. law.”

They likened the new rule to an end run around Congress after federal lawmakers failed to enact changes to the country’s immigration law that the Trump administration has sought for some time now.

President Donald Trump has said on multiple occasions that he would favor a merit-based system, in which immigrants who are highly educated and financially independent would have an easier path to legal status in the U.S. That plan would cut back on immigration based on familial relationships with individuals already living in the country.

Critics of that proposal have said it’s Trump’s way of saying he would favor white immigrants from countries in Europe over people of color from regions south of the U.S. border.

“The Rule seeks to achieve by fiat what the Trump Administration has failed to achieve through legislation. The Trump Administration explicitly sought to reduce family-based immigration and convert U.S. immigration policy to a ‘merit’-based system,” the lawsuit said. “But its efforts to achieve that goal through legislation have failed. The Rule now seeks to circumvent Congress in furtherance of that goal.”

The crux of the lawsuit is a challenge to the Trump administration’s new definition of who would be considered a “public charge,” which attorneys argued has historically referred to individuals who are “predominantly reliant on government aid” for an extended period of time.

Under the new rule, immigrants who receive one or more designated public benefits for an aggregate of 12 months during a three-year period would more likely be deemed a public charge. Those designated benefits include Medicaid, food stamps, and housing subsidies.

Immigrants who are deemed a public charge, according to the suit, are less likely to be granted legal status to remain in the country. That’s part of the Immigration and Nationality Act, which was enacted by Congress more than six decades ago.

Now, the suit argued, the Trump administration is redefining what it means to be a public charge, without congressional approval, to the detriment of immigrants, particularly those of color.

“The Rule would fundamentally transform American immigration law by conditioning lawful permanent residence on high incomes and a perceived ability to accumulate enough wealth to fully absorb the prospective impacts of health problems or wage losses,” the lawsuit said.

Attorneys claimed that, instead of seeking public benefits, immigrants will now forgo those services to avoid being labeled as a public charge. Under federal law, those immigrants are entitled to those benefits, such as Medicaid, but the new rule puts them between a rock and a hard place, the suit argued.

“The Rule forces on noncitizen immigrants an excruciating dilemma: either [forgoing] critical benefits for themselves and their families, or putting at risk their long-term ability to remain in this country and keep their families together,” the lawsuit said.

Attorneys claimed that since news outlets started reporting about the possibility of the rule in January of last year, many noncitizen immigrants have already chosen not to participate in public benefit programs out of fear of losing their legal status in the country.

Like the other lawsuits filed against the rule, the coalition is challenging it based on alleged violations of the federal Administrative Procedure Act and the Fifth Amendment.

On the latter argument, the attorneys claimed the rule was motivated by hostility toward nonwhite immigrants and, therefore, violates the equal protection rights of noncitizens. They pointed to public comments from Trump to bolster those claims.

“The Rule—which originated in a nativist think tank, and subsequently in a draft executive order of the President—reflects the President’s longstanding hostility to nonwhite immigrants from what he has referred to as ‘shithole countries,’ and whom he has characterized as ‘animals’ who are ‘infesting’ the United States,” the lawsuit said.

The lawsuit was filed on behalf of Make the Road New York, the Catholic Legal Immigration Network, Catholic Charities Community Services, African Services Committee, and the Asian American Federation.

A request for comment sent to the U.S. Department of Homeland Security was not immediately returned Tuesday.