March 12, 2020 - Mark Weber, the Vincent de Paul Professor of Law at the DePaul College of Law, proposed that the Department of Homeland Security’s recently enacted public charge rule will have an unjustified negative impact on people with disabilities.
Weber presented his paper, "Of Immigration, Public Charges, Disability Discrimination, and, of All Things, Hobby Lobby," as part of the Health Law & Policy Institute’s 2019-2020 Health Law Speaker Series.
"Immigrants applying for admission to the United States or adjustment of status to lawful permanent residents are subject to being found inadmissible on the ground that they are likely to become a public charge," Weber said.
"The Aug. 14, 2019, Final Rule redefines a public charge as anyone who receives any level of public cash assistance or specified in-kind assistance, including Medicaid and SNAP, the successor program to food stamps, public housing, or other benefits for 12 months of any 36-month period. "
Weber said that, by discriminating against immigrants with disabilities, the new rule violates Section 504 of the Rehabilitation Act of 1973.
"That law prohibits federal agencies from discriminating on the basis of disability in their programs and activities," Weber said. "The Final Rule deprives immigrants with disabilities of access to the valuable benefit of lawful entry to and permanent residency within the United States, both directly and due to the disparate impact the regulations cause.”
Weber said that, to comply with Section 504, the government should restore the interpretation of the public charge provision that applied from its origin in the 1880s up to 2019.
"DHS’s Final Rule works hardship on families with members who are immigrants, on immigrants now in this country, and on those who aspire to immigrate to the United States," he said. By its terms, the Final Rule targets immigrants with disabilities, embodies negative disability stereotypes, and has a profound negative impact on persons with disabilities.
Weber drew his analysis from the Supreme Court case, Burwell v. Hobby Lobby, which struck down the contraceptive mandate, a federal regulation adopted by the Department of Health and Human Services, for violating the Religious Freedom Restoration Act, a federal statute.
"Section 504 prohibits federal agency actions that target those with disabilities, that apply negative stereotypes, and that have unjustified negative impacts,” Weber said. “It requires reasonable accommodations. The Final Rule is simply a regulation. Section 504 of the Rehabilitation Act is a statute enacted by Congress."